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Nombre del caso
Central Authority of the Republic of South Africa and Another v B 2012 (2) SA 296 (GSJ)
Referencia INCADAT
HC/E/ZA 726
Tribunal
Sudáfrica
Primera Instancia
Estados involucrados
Australia
Sudáfrica
Fallo
7 December 2011
Definitiva
Objeciones del niño a la restitución - art. 13(2) | Cuestiones procesales
Restitución denegada
-
-
INCADAT comentario
Excepciones a la restitución
Naturaleza y tenor de la oposición
Influencia de los padres sobre las opiniones de los menores
SUMARIO
Sumario disponible en
EN
Facts
The proceedings concerned a child born in October 1998 to an Australian mother and a dual national Australian-South African father. The parents had married in Australia and separated shortly after the birth of their son.
In December 1999, a settlement agreement was made by the Family Court of Australia at Sydney, which provided that the child would live with the mother, and the father would have reasonable rights of contact. The father moved to South Africa in May 2004, and thereafter contact took place in both countries.
The child travelled to South Africa for contact on 29 November 2010 with a return scheduled for 24 January 2011. On 24 December the child texted the mother stating that he wished to remain in South Africa. The mother issued proceedings for the child's return, with court proceedings starting on 2 June 2011.
Ruling
Grounds
Objections of the Child to a Return - Art. 13(2)
The Court rejected a submission for the mother that a child's objections could only be considered alongside the grave risk of harm exception in Article 13(1)(b) of the 1980 Hague Child Abduction Convention.
The Court found that the child objected and was of an age and maturity at which it was appropriate to take the objections into account. The Court noted that the child's views were cogent and that he appreciated that the proceedings were only jurisdictional in nature. He submitted that he was unhappy at home in Australia and in school; after a difficult period of adjustment, he was now fully settled in South Africa.
Furthermore the Court was unable to reject the veracity of the child's submission that he had been planning to stay in South Africa before he left Australia.
It was submitted for the mother that the child's views were the result of the father's influence. The Court accepted that if a child's views were the subject of influence, or only amounted to a preference to remaining with the abductor, then it was probable that little or no weight would be given to those views. The Court found however that the active involvement and participation of the father in the life and activities of the child did not amount to undue influence.
The Court rejected a submission made on behalf of the mother that in the exercise of its discretion regard could not be paid to welfare considerations. The Court held that balancing all the considerations, the child's objections should prevail.
Procedural Matters
Mediation took place between the parties on 20 April.
Authors of the summary: Peter McEleavy and Erika du Plessis (Office of the Chief Family Advocate, South Africa)
INCADAT comment
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).
Parental Influence on the Views of Children
Courts applying Article 13(2) have recognised that it is essential to determine whether the objections of the child concerned have been influenced by the abducting parent.
Courts in a variety of Contracting States have dismissed claims under Article 13(2) where it is apparent that the child is not expressing personally formed views, see in particular:
Australia
Director General of the Department of Community Services v. N., 19 August 1994, transcript, Family Court of Australia (Sydney) [INCADAT cite: HC/E/AU 231];
Canada
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT cite: HC/E/CA 754];
United Kingdom - England & Wales
Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKe 87].
Although not at issue in the case, the Court of Appeal affirmed that little or no weight should be given to objections if the child had been influenced by the abducting parent or some other person.
Finland
Court of Appeal of Helsinki: No. 2933 [INCADAT cite: HC/E/FI 863];
France
CA Bordeaux, 19 janvier 2007, No 06/002739 [INCADAT cite: HC/E/FR 947].
The Court of Appeal of Bordeaux limited the weight to be placed on the objections of the children on the basis that before being interviewed they had had no contact with the applicant parent and had spent a long period of time with the abducting parent. Moreover the allegations of the children had already been considered by the authorities in the children's State of habitual residence.
Germany
4 UF 223/98, Oberlandesgericht Düsseldorf, [INCADAT cite: HC/E/DE 820];
Hungary
Mezei v. Bíró 23.P.500023/98/5. (27. 03. 1998, Central District Court of Budapest; First Instance); 50.Pkf.23.732/1998/2. 16. 06. 1998., (Capital Court as Appellate Court) [INCADAT cite: HC/E/HU 329];
Israel
Appl. App. Dist. Ct. 672/06, Supreme Court 15 October 2006 [INCADAT cite: HC/E/IL 885];
United Kingdom - Scotland
A.Q. v. J.Q., 12 December 2001, transcript, Outer House of the Court of Session (Scotland) [INCADAT cite: HC/E/UKs 415];
Spain
Auto Audiencia Provincial Nº 133/2006 Pontevedra (Sección 1ª), Recurso de apelación Nº 473/2006 [INCADAT cite: HC/E/ES 887];
Restitución de Menores 534/1997 AA [INCADAT cite: HC/E/ES 908].
Switzerland
The highest Swiss court has held that the views of children could never be entirely independent; therefore a distinction had to be made between a manipulated objection and an objection, which whilst not entirely autonomous, nevertheless merited consideration, see:
5P.1/2005 /bnm, Bundesgericht II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT cite: HC/E/CH 795].
United States of America
Robinson v. Robinson, 983 F. Supp. 1339 (D. Colo. 1997) [INCADAT cite: HC/E/USf 128].
In this case the District Court held that it would be unrealistic to expect a caring parent not to influence the child's preference to some extent, therefore the issue to be ascertained was whether the influence was undue.
It has been held in two cases that evidence of parental influence should not be accepted as a justification for not ascertaining the views of children who would otherwise be heard, see:
Germany
2 BvR 1206/98, Bundesverfassungsgericht (Federal Constitutional Court) [INCADAT cite: HC/E/DE 233];
New Zealand
Winters v. Cowen [2002] NZFLR 927 [INCADAT cite: HC/E/NZ 473].
Equally parental influence may not have a material impact on the child's views, see:
United Kingdom - England & Wales
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 [INCADAT cite: HC/E/UKe 901].
The Court of Appeal did not dismiss the suggestion that the child's views may have been influenced or coloured by immersion in an atmosphere of hostility towards the applicant father, but it was not prepared to give much weight to such suggestions.
In an Israeli case the court found that the child had been brainwashed by his mother and held that his views should therefore be given little weight. Nevertheless, the Court also held that the extreme nature of the child's reactions to the proposed return, which included the threat of suicide, could not be ignored. The court concluded that the child would face a grave risk of harm if sent back, see:
Family Appeal 1169/99 R. v. L. [INCADAT cite: HC/E/IL 834].