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Nombre del caso
Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 854
Referencia INCADAT
HC/E/UKe 982
Tribunal
Reino Unido - Inglaterra y Gales
Tribunal de Apelaciones
Estados involucrados
Mozambique
Reino Unido - Inglaterra y Gales
Fallo
22 July 2008
Definitiva
Asuntos no regulados por el Convenio
Apelación concedida, restitución ordenada
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INCADAT comentario
Excepciones a la restitución
Integración del niño
Dificultades en la implementación & aplicación
Restitución segura / órdenes espejo
Interrelación con instrumentos internacionales y regionales y Derecho interno
Cuestiones sobre asilo
Cuestiones de Política
SUMARIO
Sumario disponible en
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Facts
In August 2005 the mother took the girls to the United Kingdom for the purpose of a vacation. However, she went to ground soon after her arrival. For a time the father was able to exercise telephone contact, but he was not able to uncover the location of the girls until September 2006. During this time the mother applied for asylum. This was refused and repeated challenges and appeals were equally unsuccessful.
Mozambique not being a party to the 1980 Hague Convention the father petitioned for the return of the girls under the inherent jurisdiction of the High Court. On 24 November 2006 an order to this effect was made, subject to undertakings. The mother was allowed the choice of accompanying the girls or letting them return with the father.
Visa and passport difficulties, allied to the mother's vacillation as to how the return should be effected, led to significant delays in the execution of the order. In November 2007 the mother submitted that the welfare of the children needed to be re-evaluated.
On 31 January 2008 the trial judge discharged his original order on the basis that the girls had become more settled and that following the decision of the House of Lords in Re M. [2007] UKHL 55 [INCADAT Reference: HC/E/UKe 937] the paramount consideration of their welfare no longer indicated an order for summary return. The father appealed.
Ruling
Grounds
Non-Convention Issues
It was argued for the father that the trial judge had erred in concentrating on the assessment of welfare in the short term, ignoring risks arising in the medium and long term. In particular he had failed to recognize that the children could not remain in the UK. The judge’s findings on enhanced settlement were also criticized, in that insufficient weight was placed on emotional and psychological aspects. Finally it was submitted that greater weight should have been placed on wider policy considerations. The Court of Appeal held that the arguments of the father were more persuasive than those of the mother. In this primary weight was placed on new evidence which showed the insecurity of the mother’s presence in the jurisdiction. Consequently there was no realistic prospect of the children having a settled future residence in the UK. Furthermore a return order in the present proceedings in favour of Mozambique would avoid the possibility mother and children being deported to the Democratic Republic of Congo, the mother’s State of nationality. Return ordered subject to protective measures being put in place in Mozambique in advance of the children being sent back.
INCADAT comment
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.
Safe Return / Mirror Orders
A practice has arisen in a number of Contracting States for return orders to be made subject to compliance with certain specified requirements or undertakings. To ensure that such protective measures are enforceable, the applicant may be required to have these measures registered in identical or equivalent terms in the child's State of habitual residence. These replica orders are commonly referred to as ‘safe return' or ‘mirror orders'.
Return orders have been made subject to the enactment of safe return /mirror orders in the following jurisdictions:
Australia
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane), [INCADAT cite: HC/E/AU 294];
United Kingdom - England & Wales
Re W. (Abduction: Domestic Violence) [2004] EWHC 1247, [2004] 2 FLR 499 [INCADAT cite: HC/E/ UKe 599];
Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982];
South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].
A request by the English High Court for protective measures ancillary to an order for international contact to be registered in the State of visitation was upheld by the Panama Second Court of Childhood and Adolescence, see:
Ruling Nº393-05-F, [INCADAT cite: HC/E/PA 872].
A request that a return order be made subject to the implementation of mirror orders was turned down in:
Israel
Family Application 8743/07 Y.D.G. v T.G., [INCADAT cite: HC/E/IL 983].
The Jerusalem Family Court ruled that since accusations against the father had not been upheld there was no basis to impose conditions to ensure the children's safety, other than deposit of money to secure the father's undertaking that they could live in his apartment. There was no need to obtain a mirror order from the US courts as the delay in so doing would harm the children.
Asylum Issues
Preparation of INCADAT commentary in progress.
Policy Issues
When a parent seeks the return of a child outside the scope of the Hague Convention, or another international or regional instrument, the court seised will have to decide how to balance the interests of the child with the general international policy of combating the illicit transfer and non-return of children abroad (Art. 11(1) UNCRC 1990).
Canada
Shortridge-Tsuchiya v. Tsuchiya, 2009 BCSC 541, [2009] B.C.W.L.D. 4138, [INCADAT cite: HC/E/CA 1109].
United Kingdom - England & Wales
Appellate courts have struggled to agree on the appropriate balance to be struck.
An internationalist interpretation, favouring an approach mirrored on that of Hague Convention, was adopted by the Court of Appeal in:
Re E. (Abduction: Non-Convention Country) [1999] 2 FLR 642 [INCADAT cite: HC/E/UKe 589];
Re J. (Child Returned Abroad: Human Rights) [2004] EWCA Civ. 417, [2004] 2 FLR 85 [INCADAT cite: HC/E/UKe 586].
However, in the earlier case Re J.A. (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 [INCADAT cite: HC/E/UKe 588] a return order was not made, there being concerns as to whether the legal system in the foreign jurisdiction would be able to act in the best interests of the child. A factor in that case was that the abducting mother, who was British, would not be entitled to relocate from the child's State of habitual residence unless she had the consent of the father.
In Re J. (A Child) (Return to Foreign Jurisdiction: Convention Rights), [2005] UKHL 40, [2006] 1 AC 80, [INCADAT cite: HC/E/UKe 801] the House of Lords expressly stated that the approach of the Court of Appeal in Re J.A. (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 [INCADAT cite: HC/E/UKe 588] was the one to be preferred.
The House of Lords held that the rationale of the Hague Convention necessarily meant that the State of refuge might on occasion have to do something which was not in the best interests of the individual child involved. States parties had accepted this disadvantage to some individual children for the sake of the greater advantage to children in general. However, there was no warrant, either in statute or authority, for the principles of the Hague Convention to be extended to countries which were not parties to it. In a non-Convention case the court must act in accordance with the welfare of the individual child. Whilst there was no ‘strong presumption' in favour of return on the facts of an individual case a summary return may very well be in the best interests of the individual child.
It may be noted that in Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 854, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982] a trial judge who felt compelled to discharge his original order for return in the light, inter alia, of the ruling in Re M. had his judgment overturned. The Court of Appeal did not, however, comment on the ruling of the House of Lords and the case ostensibly turned on the existence of new evidence, pointing to the inevitability of the mother's deportation.
In E.M. (Lebanon) v. Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 A.C. 1198 [INCADAT cite: HC/E/UKe 994] an immigration case centred around the wrongful removal of a child from a non-Convention country, the House of Lords ruled that a return would lead to a violation of the child's and his mother's right to family life under Article 8 of the European Convention on Human Rights (ECHR). However, it must be noted that on the facts the child's only ‘family life' was with the mother, the father having had no contact with the child since the day of his birth. A majority of the panel (4:1) held that the discriminatory nature of Lebanese family law, which would have led to the automatic transfer of care for the child being passed from mother to father, upon the child reaching his 7th birthday, would not have led to a breach of the ECHR.