HC/E/UKe 936
Reino Unido - Inglaterra y Gales
Tribunal de Apelaciones
Zimbabwe
Reino Unido - Inglaterra y Gales
12 September 2007
Se deja sin efectos en apelación
Integración del niño - art. 12(2)
Apelación desestimada, restitución ordenada
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The mother’s appeal focused on the trial judge’s exercise of his residual discretion under Articles 13 and 18, once the exceptions of objections (13(2)) and, in particular, that of settlement (12(2)), had been made out. Having found the girls to have become settled, the trial judge asked if there was anything exceptional about the case which might lead to a non-return order being made. He concluded that there was nothing exceptional about the case and having regard to the children objections, and in the light of the other relevant factors: the nature and seriousness of the wrongful removal; the mother’s deception; the fact the mother could return and care for the children in Zimbabwe; the fact the children could be cared for properly even if the mother did not return; the children’s cultural and social roots being in Zimbabwe, he exercised his discretion to make a return order. It was argued for the mother that the trial judge had erred in exercising his discretion in appearing to require that the case be exceptional in order for a non-return order to be contemplated. References to exceptionality had been made in two earlier appellate cases: Vigreux v Michel [2006] EWCA Civ 630 [INCADAT cite: HC/E/UKe 829] and Re M. (A Child)(Abduction: Child’s Objections to Return) [2007] EWCA Civ 260 [INCADAT cite: HC/E/UKe 901]. Thorpe L.J. rejected this submission holding that the term ‘exceptional’ had been used descriptively in the latter cases, in relation to the overall policy regulating the practical application of the Convention. Longmore L.J. agreed that the trial judge had used the term ‘exceptional’ in a descriptive, rather than prescriptive manner and that the appeal be dismissed. He added that the judge had not erected a test of exceptionality. Yet for all that he did question whether there was nothing exceptional about the case. Moore-Bick L.J. noted that the term ‘exceptional’ or something similar, had been used consistently in earlier authorities and therefore the trial judge had been correct to emphasise the exceptional nature of the case that would be required to fall outside the return net. As to whether the trial judge had given sufficient consideration to the factors for and against a return order being made the Court of Appeal was divided. Thorpe and Longmore L.JJ. accepted that whilst brief, the evaluation had been legitimate. Moore-Bick L.J. found the trial judge’s exercise of discretion to have been flawed. However in exercising that discretion for himself he arrived at the same conclusion, essentially for the reasons put forward by Thorpe L.J. in his alternative conclusion. Thorpe L.J considered how he would have exercised his discretion had he found the trial judge to have erred. He held that settlement had only been made out on a fine balance, and its quality had been marred by the fact that entry had been obtained spuriously and that there were risks it would not be permitted to continue. In addition, the abduction had been perpetrated by a non-custodial parent; some explanation could be given to the delays in the case; the father had been able to establish a rich reunion with the children when he had contact during the course of the Convention proceedings; the children’s social and cultural ties were all in Zimbabwe; and some regard had to be paid to the mother’s misconduct. As regards the children's objections they had no awareness of the precariousness of their position in the UK and had not given any consideration to medium or long term issues.
The ruling of the House of Lords overturning the decision of the Court of Appeal may be found at: Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937].
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.
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].
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].
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.