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CASO

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Nombre del caso

David S. v. Zamira S., 151 Misc. 2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991)

Referencia INCADAT

HC/E/USs 208

Tribunal

País

Estados Unidos de América - Competencia Estatal

Nombre

Family Court of New York, Kings County (Estados Unidos)

Instancia

Primera Instancia

Estados involucrados

Estado requirente

Canadá

Estado requerido

Estados Unidos de América - Competencia Estatal

Fallo

Fecha

31 January 1991

Estado

Definitiva

Fundamentos

Integración del niño - art. 12(2)

Fallo

Restitución ordenada

Artículo(s) del Convenio considerados

3 8 13(1)(a) 15 12(2)

Artículo(s) del Convenio invocados en la decisión

3 12(2)

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

Publicado en
http://www.hcch.net/incadat/fullcase/0208.htm

INCADAT comentario

Mecanismo de restitución del artículo 12

Restitución
Restitución posterior al período de 12 meses

Excepciones a la restitución

Protección de derechos humanos y libertades fundamentales
Protección de los derechos humanos y las libertades fundamentales
Integración del menor
Facultad discrecional para emitir una orden de restitución cuando el menor se encuentra integrado al nuevo ambiente

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The children, a boy and a girl, were aged 1 2/3 and 2 weeks at the date of the alleged wrongful removal. They had lived in Canada all of their lives. The parents were separated.

On 5 October 1989 the Supreme Court of Ontario issued an order preventing the mother from removing the children from Ontario. On or about 5 October 1989 the mother took the children to the United States.

On 5 December 1989 the Ontario Central Authority forwarded a return application to the United States Central Authority. The New York State Clearinghouse for Missing and Exploited Children contacted the New York City Police who verified the children's residence in Brooklyn.

On 18 December 1990 the father filed his petition for the return of the children.

Ruling

Removal wrongful and return ordered; the standard required under Article 12(2) to show that the children were settled in their new environment had not been made out.

Grounds

Settlement of the Child - Art. 12(2)

While the father had delayed commencing the proceedings for more than a year after the wrongful removal, the mother had not shown that the children were so settled in their new environment that they should not be uprooted and returned to Ontario. The children, aged 3 and 1 1/2, had not established significant ties to their community in Brooklyn; they were not involved in school, extra-curricular, community, religious or social activities which children of an older age would be. Moreover, the children continued to have substantial, meaningful connections to Ontario.

INCADAT comment

For a consideration of other cases dealing with the issue of anticipated non returns see: Beaumont P.R. and McEleavy P.E., "The Hague Convention on International Child Abduction" OUP, Oxford, 1999 at p. 41 et seq.

After 12 Month Period

Preparation of INCADAT commentary in progress.

Protection of Human rights & Fundamental Freedoms

Preparation of INCADAT commentary in progress.

Discretion to make a Return Order where Settlement is established

Unlike the Article 13 exceptions, Article 12(2) does not expressly afford courts a discretion to make a return order if settlement is established.  Where this issue has arisen for consideration the majority judicial view has nevertheless been to apply the provision as if a discretion does exist, but this has arisen in different ways.

Australia
The matter has not been conclusively decided but there would appear to be appellate support for inferring a discretion, reference has been made to English and Scottish case law, see:

Director-General Department of Families, Youth and Community Care v. Moore, (1999) FLC 92-841 [INCADAT cite: HC/E/AU 276].

United Kingdom - England & Wales
English case law initially favoured inferring that a Convention based discretion existed by virtue of Article 18, see:

Re S. (A Minor) (Abduction) [1991] 2 FLR 1, [INCADAT cite: HC/E/UKe 163];

Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT cite: HC/E/UKe 598].

However, this interpretation was expressly rejected in the House of Lords decision Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937].  A majority of the panel held that the construction of Article 12(2) left the matter open that there was an inherent discretion where settlement was established.  It was pointed out that Article 18 did not confer any new power to order the return of a child under the Convention, rather it contemplated powers conferred by domestic law.

Ireland
In accepting the existence of a discretion reference was made to early English authority and Article 18.

P. v. B. (No. 2) (Child Abduction: Delay) [1999] 4 IR 185; [1999] 2 ILRM 401 [INCADAT cite: HC/E/IE 391].

New Zealand
A discretion derives from the domestic legislation implementing the Convention, see:

Secretary for Justice (as the NZ Central Authority on behalf of T.J) v. H.J. [2006] NZSC 97, [INCADAT cite: HC/E/NZ 882].

United Kingdom - Scotland
Whilst the matter was not explored in any detail, settlement not being established, there was a suggestion that a discretion would exist, with reference being made to Article 18.

Soucie v. Soucie 1995 SC 134, [INCADAT cite: HC/E/UKs 107].

There have been a few decisions in which no discretion was found to attach to Article 12(2), these include:

Australia
State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232], - subsequently questioned;

State Central Authority v. C.R. [2005] Fam CA 1050 [INCADAT cite: HC/E/AU 824];

United Kingdom - England & Wales
Re C. (Abduction: Settlement) [2004] EWHC 1245, [2005] 1 FLR 127, [INCADAT cite: HC/E/UKe 596] - subsequently overruled;

China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825];

Canada (Québec)
Droit de la Famille 2785, Cour d'appel de Montréal, 5 décembre 1997, No 500-09-005532-973 , [INCADAT cite: HC/E/CA 653].

Article 18 not being included in the act implementing the Convention in Quebec, it is understood that courts do not possess a discretionary power where settlement is established.

For academic commentary on the use of discretion where settlement is established, see:

Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' OUP, Oxford, 1999 at p. 204 et seq.;

R. Schuz, ‘In Search of a Settled Interpretation of Article 12(2) of the Hague Child Abduction Convention' [2008] Child and Family Law Quarterly.