EN | FR | ES

Buscador de jurisprudencia

Nueva búsqueda

CASO

Descargar texto completo EN

Nombre del caso

In the Matter of Mahmoud, No. CV 964 165 (RJD) (E.D.N.Y. Jan. 24, 1997)

Referencia INCADAT

HC/E/USf 126

Tribunal

País

Estados Unidos de América - Competencia Federal

Nombre

United States District Court for the Eastern District of New York (Estados Unidos)

Instancia

Primera Instancia

Estados involucrados

Estado requirente

Reino Unido - Inglaterra y Gales

Estado requerido

Estados Unidos de América - Competencia Federal

Fallo

Fecha

24 January 1997

Estado

Definitiva

Fundamentos

Cuestiones procesales

Fallo

-

Artículo(s) del Convenio considerados

-

Artículo(s) del Convenio invocados en la decisión

-

Otras disposiciones
Ley de implementación del Convenio, competencia federal / estatal
Jurisprudencia | Casos referidos

-

Publicado en
http://www.hcch.net/incadat/fullcase/0126.htm

INCADAT comentario

Objetivos y ámbito de aplicación del Convenio

Cuestiones de competencia en el marco del Convenio de La Haya
Cuestiones de competencia conforme al Convenio de La Haya (art. 16)

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The mother applied for the return of her child before a New York State court. On the day of the hearing the father filed a notice of removal with the state and federal courts.

Nevertheless, the state court judge ordered the return of the child. The mother then returned to England.

Subsequently, before the federal court the father sought to vacate the state court order for lack of jurisdiction.

Ruling

The state court order was vacated as entered subsequent to the filing of the notice of removal. Nevertheless, the matter was dismissed as moot since the child had already been returned.

Grounds

Procedural Matters

The court noted that the International Child Abduction Remedies Act (ICARA) which implements the Hague Convention in the United States, grants state and federal courts concurrent original jurisdiction. It further noted that ICARA does not prohibit a defendant’s right of removal to a federal court as provided by the Federal Removal Statute. The court affirmed that absent an express provision to the contrary the removal right should be respected where there is a concurrent jurisdiction.

INCADAT comment

See: Beaumont P.R. and McEleavy P.E., "The Hague Convention on International Child Abduction" OUP, Oxford, 1999 at p. 254 where it has been noted that the Federal Removal Statute could be open to misuse by abductors as a delaying tactic.

Jurisdiction Issues under the Hague Convention

Jurisdiction Issues under the Hague Convention (Art. 16)

Given the aim of the Convention to secure the prompt return of abducted children to their State of habitual residence to allow for substantive proceedings to be convened, it is essential that custody proceedings not be initiated in the State of refuge. To this end Article 16 provides that:

"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."

Contracting States which are also party to the 1996 Hague Convention are provided greater protection by virtue of Article 7 of that instrument.

Contracting States which are Member States of the European Union and to which the Council Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels II a Regulation) applies are provided further protection still by virtue of Article 10 of that instrument.

The importance of Article 16 has been noted by the European Court of Human Rights:

Iosub Caras v. Romania, Application No. 7198/04, (2008) 47 E.H.R.R. 35, [INCADAT cite: HC/E/ 867];
 
Carlson v. Switzerland no. 49492/06, 8 November 2008, [INCADAT cite: HC/E/ 999].

When should Article 16 be applied?

The High Court in England & Wales has held that courts and lawyers must be pro-active where there is an indication that a wrongful removal or retention has occurred.

R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].
 
When a court becomes aware, expressly or by inference that there has been a wrongful removal or retention it receives notice of that wrongful removal or retention within the meaning of Article 16. Moreover, it is the duty of the court to consider taking steps to secure that the parent in that State is informed of his or her Convention rights. 

Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, [INCADAT cite: HC/E/UKe 478]

Lawyers, even those acting for abducting parents, had a duty to draw the attention of the court to the Convention where this was relevant.

Scope and Duration of Article 16 Protection?

Article 16 does not prevent provisional and protective measures from being taken:

Belgium
Cour de cassation 30/10/2008, CG c BS, N° de rôle: C.06.0619.F, [INCADAT cite : HC/E/BE 750]. 

However, in this case the provisional measures ultimately became final and the return was never enforced, due to a change in circumstances.

A return application must be made within a reasonable period of time:

France
Cass Civ 1ère 9 juillet 2008 (N° de pourvois K 06-22090 & M 06-22091), 9.7.2008, [INCADAT cite : HC/E/FR 749]

United Kingdom - England & Wales
R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].

A return order which has become final but has not yet been enforced is covered by Article 16:

Germany
Bundesgerichtshof, XII. Zivilsenat Decision of 16 August 2000 - XII ZB 210/99, BGHZ 145, 97 16 August 2000 [INCADAT cite: HC/E/DE 467].

Article 16 will no longer apply when a return order cannot be enforced:

Switzerland
5P.477/2000/ZBE/bnm, [INCADAT cite : HC/E/CH 785].