HC/E/USf 150
Estados Unidos de América - Competencia Federal
United States Court of Appeals for the Sixth Circuit (Estados Unidos)
Tribunal de Apelaciones
Francia
Estados Unidos de América - Competencia Federal
14 July 1995
Definitiva
Finalidad del Convenio - Preámbulo, arts. 1 y 2
Apelación concedida, restitución denegada
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The court affirmed that the father had left the United States to escape his criminal conviction and other responsibilities to the court. It found that if he returned to the United States and was imprisoned he could not successfully maintain a return application. Either the habitual residence of the children would change, or they would no longer be in his custody, or the grave risk exception would apply. The court concluded that the father had abused the laudable purposes of the International Child Abduction Remedies Act (ICARA) which implemented the Hague Convention. His actions constituted abuses to which the court should not accede. The Fugitive Disentitlement Doctrine served to prevent the father from calling on the resources of the court to determine his claims.
In United States Convention case law different approaches have been taken to the application of the fugitive disentitlement doctrine.
In Walsh v. Walsh, No. 99-1747 (1st Cir. July 25, 2000) [INCADAT Reference: HC/E/USf 326] criteria were put down as to when the doctrine should be applicable.
In March v. Levine, 249 F.3d 462 (6th Cir. 2001) [INCADAT Reference: HC/E/USf 386] the doctrine was not applied where the applicant was in breach of civil orders.
In the Canadian case Kovacs v. Kovacs (2002), 59 O.R. (3d) 671 (Sup. Ct.) [INCADAT Reference: HC/E/CA 760] the father's fugitive status was held to be a factor in there being a grave risk of harm facing the child.
Courts in all Contracting States must inevitably make reference to and evaluate the aims of the Convention if they are to understand the purpose of the instrument, and so be guided in how its concepts should be interpreted and provisions applied.
The 1980 Hague Child Abduction Convention, explicitly and implicitly, embodies a range of aims and objectives, positive and negative, as it seeks to achieve a delicate balance between the competing interests of the central actors; the child, the left behind parent and the abducting parent, see for example the discussion in the decision of the Canadian Supreme Court: W.(V.) v. S.(D.), (1996) 2 SCR 108, (1996) 134 DLR 4th 481 [INCADAT Reference: HC/E/CA 17].
Article 1 identifies the core aims, namely that the Convention seeks:
"a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."
Further clarification, most notably to the primary purpose of achieving the return of children where their removal or retention has led to the breach of actually exercised rights of custody, is given in the Preamble.
Therein it is recorded that:
"the interests of children are of paramount importance in matters relating to their custody;
and that States signatory desire:
to protect children internationally from the harmful effects of their wrongful removal or retention;
to establish procedures to ensure their prompt return to the State of their habitual residence; and
to secure protection for rights of access."
The aim of return and the manner in which it should best be achieved is equally reinforced in subsequent Articles, notably in the duties required of Central Authorities (Arts 8-10) and in the requirement for judicial authorities to act expeditiously (Art. 11).
Article 13, along with Articles 12(2) and 20, which contain the exceptions to the summary return mechanism, indicate that the Convention embodies an additional aim, namely that in certain defined circumstances regard may be paid to the specific situation, including the best interests, of the individual child or even taking parent.
The Pérez-Vera Explanatory Report draws (at para. 19) attention to an implicit aim on which the Convention rests, namely that any debate on the merits of custody rights should take place before the competent authorities in the State where the child had his habitual residence prior to its removal, see for example:
Argentina
W., E. M. c. O., M. G., Supreme Court, June 14, 1995 [INCADAT Reference: HC/E/AR 362]
Finland
Supreme Court of Finland: KKO:2004:76 [INCADAT Reference: HC/E/FI 839]
France
CA Bordeaux, 19 janvier 2007, No de RG 06/002739 [INCADAT Reference: HC/E/FR 947]
Israel
T. v. M., 15 April 1992, transcript (Unofficial Translation), Supreme Court of Israel [INCADAT Reference: HC/E/IL 214]
Netherlands
X. (the mother) v. De directie Preventie, en namens Y. (the father) (14 April 2000, ELRO nr. AA 5524, Zaaksnr.R99/076HR) [INCADAT Reference: HC/E/NL 316]
Switzerland
5A.582/2007 Bundesgericht, II. Zivilabteilung, 4 décembre 2007 [INCADAT Reference: HC/E/CH 986]
United Kingdom - Scotland
N.J.C. v. N.P.C. [2008] CSIH 34, 2008 S.C. 571 [INCADAT Reference: HC/E/UKs 996]
United States of America
Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) [INCADAT Reference: HC/E/USf 125]
The Pérez-Vera Report equally articulates the preventive dimension to the instrument's return aim (at paras. 17, 18, 25), a goal which was specifically highlighted during the ratification process of the Convention in the United States (see: Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1986)) and which has subsequently been relied upon in that Contracting State when applying the Convention, see:
Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) [INCADAT Reference: HC/E/USf 741]
Applying the principle of equitable tolling where an abducted child had been concealed was held to be consistent with the purpose of the Convention to deter child abduction.
Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 578]
In contrast to other federal Courts of Appeals, the 11th Circuit was prepared to interpret a ne exeat right as including the right to determine a child's place of residence since the goal of the Hague Convention was to deter international abduction and the ne exeat right provided a parent with decision-making authority regarding the child's international relocation.
In other jurisdictions, deterrence has on occasion been raised as a relevant factor in the interpretation and application of the Convention, see for example:
Canada
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT Reference: HC/E/CA 754]
United Kingdom - England and Wales
Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682 [INCADAT Reference: HC/E/UKe 50]
Aims and objectives may equally rise to prominence during the life of the instrument, such as the promotion of transfrontier contact, which it has been submitted will arise by virtue of a strict application of the Convention's summary return mechanism, see:
New Zealand
S. v. S. [1999] NZFLR 625 [INCADAT Reference: HC/E/NZ 296]
United Kingdom - England and Wales
Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716 [INCADAT Reference: HC/E/UKe 60]
There is no hierarchy between the different aims of the Convention (Pérez-Vera Explanatory Report, at para. 18). Judicial interpretation may therefore differ as between Contracting States as more or less emphasis is placed on particular objectives. Equally jurisprudence may evolve, whether internally or internationally.
In United Kingdom case law (England and Wales) a decision of that jurisdiction's then supreme jurisdiction, the House of Lords, led to a reappraisal of the Convention's aims and consequently a re-alignment in court practice as regards the exceptions:
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
Previously a desire to give effect to the primary goal of promoting return and thereby preventing an over-exploitation of the exceptions, had led to an additional test of exceptionality being added to the exceptions, see for example:
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260 [INCADAT Reference: HC/E/UKe 901]
It was this test of exceptionality which was subsequently held to be unwarranted by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
- Fugitive Disentitlement Doctrine:
In United States Convention case law different approaches have been taken in respect of applicants who have or are alleged to have themselves breached court orders under the "fugitive disentitlement doctrine".
In Re Prevot, 59 F.3d 556 (6th Cir. 1995) [INCADAT Reference: HC/E/USf 150], the fugitive disentitlement doctrine was applied, the applicant father in the Convention application having left the United States to escape his criminal conviction and other responsibilities to the United States courts.
Walsh v. Walsh, No. 99-1747 (1st Cir. July 25, 2000) [INCADAT Reference: HC/E/USf 326]
In the instant case the father was a fugitive. Secondly, it was arguable there was some connection between his fugitive status and the petition. But the court found that the connection not to be strong enough to support the application of the doctrine. In any event, the court also held that applying the fugitive disentitlement doctrine would impose too severe a sanction in a case involving parental rights.
In March v. Levine, 249 F.3d 462 (6th Cir. 2001) [INCADAT Reference: HC/E/USf 386], the doctrine was not applied where the applicant was in breach of civil orders.
In the Canadian case Kovacs v. Kovacs (2002), 59 O.R. (3d) 671 (Sup. Ct.) [INCADAT Reference: HC/E/CA 760], the father's fugitive status was held to be a factor in there being a grave risk of harm facing the child.
Author: Peter McEleavy