CASO

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Nombre del caso

Secretary for Justice (New Zealand Central Authority) v. H.J. [2007] 2 NZLR 289

Referencia INCADAT

HC/E/NZ 882

Tribunal

País

Nueva Zelanda

Instancia

última instancia

Estados involucrados

Estado requirente

Australia

Estado requerido

Nueva Zelanda

Fallo

Fecha

16 November 2006

Estado

Definitiva

Fundamentos

Integración del niño - art. 12(2)

Fallo

Apelación desestimada, restitución denegada

Artículo(s) del Convenio considerados

12(2)

Artículo(s) del Convenio invocados en la decisión

12(2)

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

INCADAT comentario

Excepciones a la restitución

Integración del menor
Integración del niño
Ocultamiento
Suspensión equitativa del plazo de prescripción (equitable tolling)
Facultad discrecional para emitir una orden de restitución cuando el menor se encuentra integrado al nuevo ambiente

SUMARIO

Sumario disponible en EN | FR

Facts

The application related to two children, a girl born in May 1999 and a boy born in May 2000. The mother, a New Zealander and the Australian father had an unstable relationship. The father, who had alcohol and drugs problems, committed acts of domestic violence against the mother, with the latter having obtained protective orders in three Australian states. The father only lived with the family intermittently and saw the children infrequently, the last time being in September 2001.

In November 2001 the father wrote to the mother stating he would consent to her having custody and that he was willing for the children to have passports and to go abroad but provided the returned within 14 days. In February 2002 the mother unilaterally took the children to New Zealand.

In January 2003 the father applied to the Australian Federal Magistrates Court for an information order to locate the children and for contact orders. In March 2003 the father's solicitors wrote to the mother care of her brother in New Zealand advising her of the Australian contact proceedings.

In May 2003 the father received confirmation the children were in New Zealand when his solicitors received notice of custody proceedings initiated there by the mother. On 31 October the mother was granted custody and protection orders in the New Zealand Family Court. The same month the father made contact with the Australian Central Authority.

On 18 December 2003 a return application was issued. On 15 April 2004 the Family Court at Hastings found the children to be settled in their new environment but nevertheless ordered that they be returned to Australia. The return order was upheld by the High Court on 15 June 2004.

On 23 November 2005 the mother's appeal to the Court of Appeal on the exercise of discretion was upheld and the children were permitted to remain in New Zealand. The father appealed to the New Zealand Supreme Court.

Ruling

Appeal dismissed and return refused; the removal was wrongful but the children were now settled in their new environment and it would not be appropriate for them to be returned.

Grounds

Settlement of the Child - Art. 12(2)

In contrast to other jurisdictions New Zealand domestic legislation implementing the Convention (the Care of Children Act 2004) expressly provides for an exercise of judicial discretion where settlement is established. The issue for the Supreme Court was how this discretion should be exercised. The trial court judge held that a parent should not be given the benefit of the discretion in circumstances where he or she could not be said to come to the Court with clean hands. In considering whether the mother had concealed the children he held that the onus was on her; to satisfy the Court on the balance of probabilities that within the year following the removal the father would have known, or could have found out, that she and the children were in New Zealand. He found that she had not discharged this burden. On appeal the High Court judge held that the discretion had to be viewed against the objectives of the Convention, including its deterrent effect. She concluded that the mother had not shown the trial judge to have been wrong in his approach to the exercise of his discretion. In quashing the return order the Court of Appeal held that there was no scope for any presumption in favour of return when applying discretion in the aftermath of a finding of settlement. This was because the discretion was residual in nature. Moreover the integrity of the Convention was not undermined by allowing settled children to remain in the State of refuge. In exercising the discretion the best interests of the individual children were at least a relevant and possibly a controlling consideration. The Court concluded that the mother was not guilty of manipulative delay and that her actions were of limited moral gravity in the context of the family’s history, in particular the father’s violence. The Supreme Court was unanimous in its dismissal of the father’s appeal, but for different reasons. The majority of Blanchard, Tipping and Anderson JJ. held that the exercise of discretion required the judge to compare and weigh the welfare and best interests of the individual child against the general purpose of the Convention in the circumstances of the case. The majority conceded that the fact the child had been found to be settled implied that an order for return may not be in his best interests. Nevertheless matters relevant to the assessment would include the circumstances in which the child was settled, the circumstances in which he came to be wrongfully removed or retained and the degree to which he would be harmed by a return. If the judge then considered that a return was not in the best interests of the child the issue became whether some feature of the case, such as concealment by the abductor, required a return order to be made so as to avoid the perverse incentive inherent in refusing to make a return order. Unless the Court were to find that such competing factors clearly outweighed the interests of the child then a return order should not be made. Applying this test the majority found that it was in the interests of the children to stay and that there were no other factors which displaced this finding. In particular the majority rejected the trial judge’s finding that there had been any concealment on the part of the mother. In contrast Elias CJ argued that where a Court came to exercise its discretion following a finding of settlement the interests of the children concerned should be the first and paramount consideration and these interests should not be balanced against the deterrent effect of the Convention.

INCADAT comment

See also the decision of the Court of Appeal: H.J. v. Secretary for Justice [2006] NZFLR 1005 [INCADAT Reference: HC/E/NZ 1127].

Settlement of the Child

A uniform interpretation has not emerged with regard to the concept of settlement; in particular whether it should be construed literally or rather in accordance with the policy objectives of the Convention.  In jurisdictions favouring the latter approach the burden of proof on the abducting parent is clearly greater and the exception is more difficult to establish.

Jurisdictions in which a heavy burden of proof has been attached to the establishment of settlement include:

United Kingdom - England & Wales
Re N. (Minors) (Abduction) [1991] 1 FLR 413 [INCADAT cite: HC/E/UKe 106]

In this case it was held that settlement is more than mere adjustment to surroundings. It involves a physical element of relating to, being established in, a community and an environment. It also has an emotional constituent denoting security and stability.

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

For academic criticism of Re N. see:

Collins L. et al., Dicey, Morris & Collins on the Conflict of Laws, 14th Edition, Sweet & Maxwell, London, 2006, paragraph 19-121.

However, it may be noted that a more recent development in England has been the adoption of a child-centric assessment of settlement by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937].  This ruling may impact on the previous case law.

However there was no apparent weakening of the standard in the non-Convention case Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649,[INCADAT cite: HC/E/UKe 982].

United Kingdom - Scotland
Soucie v. Soucie 1995 SC 134 [INCADAT cite: HC/E/UKs 107]

For Article 12(2) to be activated the interest of the child in not being uprooted must be so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child's future may be determined in the appropriate place.

P. v. S., 2002 FamLR 2 [INCADAT cite: HC/E/UKs 963]

A settled situation was one which could reasonably be relied upon to last as matters stood and did not contain indications that it was likely to change radically or to fall apart. There had therefore to be some projection into the future.

C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]

United States of America
In re Interest of Zarate, No. 96 C 50394 (N.D. Ill. Dec. 23, 1996) [INCADAT cite: HC/E/USf  134]

A literal interpretation of the concept of settlement has been favoured in:

Australia
Director-General, Department of Community Services v. M. and C. and the Child Representative (1998) FLC 92-829 [INCADAT cite: HC/E/AU 291];

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

The impact of the divergent interpretations is arguably most marked where very young children are concerned.

It has been held that settlement is to be considered from the perspective of a young child in:

Austria
7Ob573/90 Oberster Gerichtshof, 17/05/1990 [INCADAT cite: HC/E/AT 378];

Australia
Secretary, Attorney-General's Department v. T.S. (2001) FLC 93-063 [INCADAT cite: HC/E/AU 823];

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

Israel
Family Application 000111/07 Ploni v. Almonit, [INCADAT cite: HC/E/IL 938];

Monaco
R 6136; M. Le Procureur Général contre M. H. K., [INCADAT cite: HC/E/MC 510];

Switzerland
Präsidium des Bezirksgerichts St. Gallen (District Court of St. Gallen) (Switzerland), decision of 8 September 1998, 4 PZ 98-0217/0532N, [INCADAT cite: HC/E/CH 431].

A child-centric approach has also been adopted in several significant appellate decisions with regard to older children, with emphasis placed on the children's views.

United Kingdom - England & Wales
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937];

France
CA Paris 27 Octobre 2005, 05/15032, [INCADAT cite: HC/E/FR 814];

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

In contrast, a more objective assessment was favoured in the United States decision:

David S. v. Zamira S., 151 Misc. 2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991) [INCADAT cite: HC/E/USs 208]
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.

Concealment

Where children are concealed in the State of refuge courts are reluctant to make a finding of settlement, even if many years elapse before their discovery:

Canada (7 years elapsed)
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT cite: HC/E/CA 754];

See however the decision of the Cour d'appel de Montréal in:

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

United Kingdom - Scotland (2 ½ years elapsed)
C. v. C. [2008] CSOH 42, 2008 S.C.L.R. 329 [INCADAT cite: HC/E/UKs 962];

Switzerland (4 years elapsed)
Justice de Paix du cercle de Lausanne (Magistrates' Court), decision of 6 July 2000, J 765 CIEV 112E [INCADAT cite: HC/E/CH 434];

United States of America
(2 ½ years elapsed)
Lops v. Lops, 140 F. 3d 927 (11th Cir. 1998) [INCADAT cite: HC/E/USf 125];

(3 years elapsed)
In re Coffield, 96 Ohio App. 3d 52, 644 N.E. 2d 662 (1994) [INCADAT cite: HC/E/USs 138].

Non-return orders have been made where notwithstanding the concealment the children have still been able to lead open lives:

United Kingdom - England & Wales (4 years elapsed)
Re C. (Abduction: Settlement) (No 2) [2005] 1 FLR 938 [INCADAT cite: HC/E/UKe 815];

China - (Hong Kong Special Administrative Region) (4 ¾ years elapsed)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825].

Equitable Tolling

In accordance with this principle the one year time limit in Article 12 is only deemed to commence from the date of the discovery of the children. The rationale being that otherwise an abducting parent who concealed children for more than a year would be rewarded for their misconduct by creating eligibility for an affirmative defence which was not otherwise available.

Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 578].

The principle of 'equitable tolling' in the context of the time limit specified in Article 12 has been rejected in other jurisdictions, see:

United Kingdom - England & Wales
Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT Reference: HC/E/UKe 598];

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

New Zealand
H.J. v. Secretary for Justice [2006] NZFLR 1005 [INCADAT Reference: HC/E/NZ 1127].

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.