CASO

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Nombre del caso

Re G. (A Minor) (Abduction) [1989] 2 FLR 475

Referencia INCADAT

HC/E/UKe 95

Tribunal

País

Reino Unido - Inglaterra y Gales

Nombre

Court of Appeal (Inglaterra)

Instancia

Tribunal de Apelaciones

Estados involucrados

Estado requirente

Australia

Estado requerido

Reino Unido - Inglaterra y Gales

Fallo

Fecha

27 April 1989

Estado

Definitiva

Fundamentos

Grave riesgo - art. 13(1)(b) | Compromisos | Objeciones del niño a la restitución - art. 13(2)

Fallo

Apelación desestimada, restitución ordenada sujeta a los compromisos asumidos

Artículo(s) del Convenio considerados

13(1)(b) 13(2) 12(2)

Artículo(s) del Convenio invocados en la decisión

13(1)(b)

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 child, a boy, was 9 at the date of the alleged wrongful removal. He had lived in Australia for over four years. His parents were married and had joint rights of custody. On 15 February 1989 the mother took the boy to England.

On 17 February 1989 the father was awarded custody by a court in Alice Springs.

On 14 March 1989 the High Court ordered the return of the child dependent on certain undertakings. Before agreement could be reached on the exact terms of the undertakings the Australian Central Authority intervened. As a result, the father was instructed to, and did, decline to give the necessary undertakings.

On 20 March 1989, in the absence of undertakings, the High Court held that a return would expose the child to a grave risk of psychological harm and accordingly, declined to send the child back.

Following the ruling, the Australian Central Authority withdrew its opposition to the undertakings and the father indicated that he would comply with the original order.

On 17 April 1989 the High Court then granted the father's return application.

The mother appealed.

Ruling

Appeal dismissed and return ordered subject to undertakings; the standard required under Article 13(1)(b) to indicate that the child would face a grave risk of psychological harm had not been met.

Grounds

Grave Risk - Art. 13(1)(b)

Having found that there was a grave risk of psychological harm, the trial judge was correct to rely upon the mitigating effect of undertakings in deciding whether or not to order the return of the child to Australia. Once it was established that steps could be taken to ensure that the mother returned together with the child, and retained the care and control of the child until the issues could be brought before the appropriate court in Australia, the risk of harm was lost.

Undertakings

In requiring undertakings the court seized is merely seeking to ensure the short-term safety of the child. Such measures will persist only until the court in the State of the child's habitual residence is seized of the substantive custody proceedings Undertakings were requested to ensure that both abductor and child were provided for upon their return. The undertakings were not designed to circumscribe or influence the Family Court of Australia.

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

It is for the trial judge to assess from all the evidence available whether or not a particular child had attained the age and degree of maturity at which it was appropriate to take account of his or her views. In the instant case the trial judge assessed not only the maturity and experience of the child but also took into account the fact that an interview with the child would almost certainly be non-productive. The child's worldly understanding was that of a 9-year-old, and it was doubtful whether that was sufficient to comprehend all the complex factors involved in objecting to a return.

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).

Undertakings

Preparation of INCADAT case law analysis in progress.