CASO

Descargar texto completo EN

Nombre del caso

The Ontario Court v. M. and M. (Abduction: Children's Objections) [1997] 1 FLR 475

Referencia INCADAT

HC/E/UKe 33

Tribunal

País

Reino Unido - Inglaterra y Gales

Nombre

High Court (Inglaterra)

Instancia

Primera Instancia

Estados involucrados

Estado requirente

Canadá

Estado requerido

Reino Unido - Inglaterra y Gales

Fallo

Fecha

26 June 1996

Estado

Definitiva

Fundamentos

Derechos de custodia - art. 3 | Compromisos | Objeciones del niño a la restitución - art. 13(2) | Cuestiones procesales

Fallo

Restitución denegada

Artículo(s) del Convenio considerados

3 13(1)(b) 13(2)

Artículo(s) del Convenio invocados en la decisión

13(1)(b) 13(2)

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

INCADAT comentario

Excepciones a la restitución

Oposición del menor
Naturaleza y tenor de la oposición

Dificultades en la implementación & aplicación

Medidas para facilitar la restitución del menor
Compromisos

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The children, a girl and boy, were 9 and 1 2/3 at the date of the alleged wrongful removal. They had spent all of their lives in Canada. On 26 September 1995 they were taken to England by their mother and father, (adoptive father in the case of the elder girl).

On 3 October 1995 the father was to be deported from Canada.

On 23 June 1995 the maternal grandmother had applied for access to the children. On 24 August she applied for an order to stop the children being removed from the jurisdiction. These proceedings were adjourned on several occasions until 29 September 1995.

Since the maternal grandmother did not have any right of custody at the moment of the removal, the application was made by the Ontario court, Provincial Division.

On 11 October 1995 the Ontario court awarded sole custody to the grandmother. On 23 January 1996, pursuant to Article 15, the Ontario court ruled that the removal of the children was wrongful.

Ruling

Return refused; the High Court exercised its discretion under Article 13 not to order the return of the children; grave risk of an intolerable situation and objections of the elder child both being established.

Grounds

Rights of Custody - Art. 3

Breach of Custody Rights The High Court accepted without further investigation the finding of the Ontario court that the removal was wrongful.

Undertakings

The maternal grandmother volunteered several undertakings: not to enforce the order of 11 October until the Ontario court had reconsidered the issue of custody, not to initiate or to promote criminal proceedings, and to cover travel expenses if these were not met by the Canadian Attorney General.

Objections of the Child to a Return - Art. 13(2)

The objections of the elder child should be taken into account. It was also concluded that there was a grave risk that a return would place her in an intolerable situation. It was not argued that the siblings should be split therefore the judge exercised his discretion not to order the return of the children.

Procedural Matters

Concern was raised by the trial judge as to the application being brought by the Ontario court. This matter was not however the subject of argument.

INCADAT comment

The final decision of the Ontario Court may be found at Morris and Morris v. Beckett (12 June 1996), transcript, Ontario Court of Justice (Divisional Court) [INCADAT Reference: HC/E/CA 370].

Nature and Strength of Objection

Australia
De L. v. Director-General, NSW Department of Community Services (1996) FLC 92-706 [INCADAT cite: HC/E/AU 93].

The supreme Australian jurisdiction, the High Court, advocated a literal interpretation of the term ‘objection'.  However, this was subsequently reversed by a legislative amendment, see:

s.111B(1B) of the Family Law Act 1975 inserted by the Family Law Amendment Act 2000.

Article 13(2), as implemented into Australian law by reg. 16(3) of the Family Law (Child Abduction) Regulations 1989, now provides not only that the child must object to a return, but that the objection must show a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

See for example:

Richards & Director-General, Department of Child Safety [2007] FamCA 65 [INCADAT cite: HC/E/UKs 904].

The issue as to whether a child must specifically object to the State of habitual residence has not been settled, see:

Re F. (Hague Convention: Child's Objections) [2006] FamCA 685 [INCADAT cite: HC/E/AU 864].

Austria
9Ob102/03w, Oberster Gerichtshof (Austrian Supreme Court), 8/10/2003 [INCADAT: cite HC/E/AT 549].

A mere preference for the State of refuge is not enough to amount to an objection.

Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles, 27/5/2003 [INCADAT cite: HC/E/BE 546].

A mere preference for the State of refuge is not enough to amount to an objection.

Canada
Crnkovich v. Hortensius, [2009] W.D.F.L. 337, 62 R.F.L. (6th) 351, 2008, [INCADAT cite: HC/E/CA 1028].

To prove that a child objects, it must be shown that the child "displayed a strong sense of disagreement to returning to the jurisdiction of his habitual residence. He must be adamant in expressing his objection. The objection cannot be ascertained by simply weighing the pros and cons of the competing jurisdictions, such as in a best interests analysis. It must be something stronger than a mere expression of preference".

United Kingdom - England & Wales
In Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKs 87] the Court of Appeal held that the return to which a child objects must be an immediate return to the country from which it was wrongfully removed. There is nothing in the provisions of Article 13 to make it appropriate to consider whether the child objects to returning in any circumstances.

In Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKs 56] it was, however, accepted that an objection to life with the applicant parent may be distinguishable from an objection to life in the former home country.

In Re T. (Abduction: Child's Objections to Return) [2000] 2 FCR 159 [INCADAT cite: HC/E/UKe 270] Ward L.J. set down a series of questions to assist in determining whether it was appropriate to take a child's objections into account.

These questions where endorsed by the Court of Appeal in Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 [INCADAT cite: HC/E/UKe 901].

For academic commentary see: P. McEleavy ‘Evaluating the Views of Abducted Children: Trends in Appellate Case Law' [2008] Child and Family Law Quarterly, pp. 230-254.

France
Objections based solely on a preference for life in France or life with the abducting parent have not been upheld, see:

CA Grenoble 29/03/2000 M. v. F. [INCADAT cite: HC/E/FR 274];

TGI Niort 09/01/1995, Procureur de la République c. Y. [INCADAT cite: HC/E/FR 63].

United Kingdom - Scotland
In Urness v. Minto 1994 SC 249 [INCADAT cite: HC/E/UKs 79] a broad interpretation was adopted, with the Inner House accepting that a strong preference for remaining with the abducting parent and for life in Scotland implicitly meant an objection to returning to the United States of America.

In W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805] the Inner House, which accepted the Re T. [INCADAT cite: HC/E/UKe 270] gateway test, held that objections relating to welfare matters were only to be dealt with by the authorities in the child's State of habitual residence.

In the subsequent first instance case: M. Petitioner 2005 S.L.T. 2 OH [INCADAT cite: HC/E/UKs 804], Lady Smith noted the division in appellate case law and decided to follow the earlier line of authority as exemplified in Urness v. Minto.  She explicitly rejected the Re T. gateway tests.

The judge recorded in her judgment that there would have been an attempt to challenge the Inner House judgment in W. v. W. before the House of Lords but the case had been resolved amicably.

More recently a stricter approach to the objections has been followed, see:  C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]; upheld on appeal: C v. C. [2008] CSIH 34, [INCADAT cite: HC/E/UKs 996].

Switzerland
The highest Swiss court has stressed the importance of children being able to distinguish between issues relating to custody and issues relating to return, see:

5P.1/2005 /bnm, Bundesgericht II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 795];

5P.3/2007 /bnm; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 894].

A mere preference for life in the State of refuge, even if reasoned, will not satisfy the terms of Article 13(2):

5A.582/2007 Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 986].

For general academic commentary see: R. Schuz ‘Protection or Autonomy -The Child Abduction Experience' in  Y. Ronen et al. (eds), The Case for the Child- Towards the Construction of a New Agenda,  271-310 (Intersentia,  2008).

Undertakings

Preparation of INCADAT case law analysis in progress.