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Nombre del caso
N.J.C. v. N.P.C. [2008] CSIH 34, 2008 S.C. 571
Referencia INCADAT
HC/E/UKs 996
Tribunal
Reino Unido - Escocia
Tribunal de Apelaciones
Estados involucrados
Francia
Reino Unido - Escocia
Fallo
10 June 2008
Definitiva
Finalidad del Convenio - Preámbulo, arts. 1 y 2 | Objeciones del niño a la restitución - art. 13(2) | Integración del niño - art. 12(2) | Derechos humanos - art. 20 | Cuestiones relativas a la restitución
Apelación desestimada, restitución ordenada
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-
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INCADAT comentario
Objetivos y ámbito de aplicación del Convenio
Objetivos del Convenio
Excepciones a la restitución
Naturaleza y tenor de la oposición
Influencia de los padres sobre las opiniones de los menores
Protección de los derechos humanos y las libertades fundamentales
Integración del niño
Dificultades en la implementación & aplicación
Restitución segura / órdenes espejo
SUMARIO
Sumario disponible en
EN
Facts
In 1998 they returned to the UK for several months before moving to Spain, where they stayed until 2001. The stay in Spain ended when the parents separated, with the mother moving to France. The father moved to the same area and protracted litigation ensued over the care of the children. At trial and on appeal, the mother was designated as the primary carer, with the father having contact.
During a period of contact in July 2005 the father removed the children, via Switzerland, to south east Asia. After six months of travelling they settled in the Philippines where they remained until November 2006 whereupon they moved, undetected, to Scotland. In the autumn of 2007 the mother learned of the location of the children and initiated return proceedings.
On 10 March 2008 the Outer House of the Court of Session ordered the return of the children. Lord Turnball found the removal to have been wrongful and that the children had not settled in their new environment whilst the objectives of the older children were not of the requisite standard to justify a non-return order being made. The father appealed.
A curator ad litem was appointed to represent the interests of the 3 children. Prior to the trial the curator advised the court that she did not support the father's appeal. On 20 November 2006, at the Criminal Court in St Etienne, the father had been convicted in his absence of a violation of Article 227 of the French Penal Code in respect of the non-return of the children following a period when they were visiting him under the terms of a court order. He was sentenced to a period of 30 months imprisonment.
In parallel to the Hague Convention proceedings, proceedings were being conducted for the father's extradition to France pursuant to a European arrest warrant. On 9 May 2008 the father's bail was withdrawn and he was remanded in custody.
Ruling
Grounds
Aims of the Convention - Preamble, Arts 1 and 2
The Inner House noted that submissions which in essence sought to argue that a return would not be in the best interests of the children, were out of place in Convention proceedings. The aim of the Convention was not to determine where the children's best interests lay, but to ensure that children were returned to the country of their habitual residence for their future to be decided there.
Arguments that the French courts were incapable of making a proper determination on such matters were rejected. The Inner House affirmed: "The policy of the Hague Convention reflects the fact that the acceding States regard the Courts of the other acceding States as capable of making proper determinations of the kind which we have outlined. Were that not so, the whole machinery of the Convention would be unworkable."
Objections of the Child to a Return - Art. 13(2)
The Inner House upheld the conclusion of the trial judge to not give effect to the objections of the two older children.
Settlement of the Child - Art. 12(2)
The Court confirmed its existing position that there was a substantial onus on a party who contended that settlement had occurred.
Human Rights - Art. 20
The father had been legally represented for the first instance proceedings, but he then dispensed with his legal team, having been dissatisfied with their performance. He argued that the legal team had been negligent and this sufficed as a basis to allow the appeal. As an alternative he asked that the appeal be adjourned to allow him to appoint new representatives.
The father further submitted that following his remand into prison he had had insufficient access to the papers in the case and that this did not accord with the requirement that there be an equality of arms in terms of Art 6 ECHR.
The Court noted that pursuant to the Brussels II a Regulation there was a requirement to act expeditiously in Hague Convention proceedings and that an adjournment would likely cause substantial delay. Moreover, there was no guarantee the father would be successful in finding representatives who would be able to support his appeal.
He had indeed had a significant period of time in which he could have done so. The Court also noted that the father had been able to advance submissions and other material in support of his appeal and that he had been accorded additional time in which to present his case.
In light of these circumstances, the Court ruled that the father had been accorded a fair hearing; he may not have been able to focus his submissions in the way a professional lawyer would have done, but he had had every opportunity to address the issues which had arisen in connection with his appeal.
Issues Relating to Return
On 29 August 2008 the extradition of the father was ordered, see: EXTRADITION REQUEST, by THE REPUBLIC OF FRANCE Public Ministry of Saint-Etienne High Court ("Tribunal de Grande Instance") in respect of N. C., Case reference No 2B 920/2007, Edinburgh Sheriff Court.
The Sheriff having heard representations on behalf of both parties and having, in terms of the Extradition Act 2003, decided :
that the extradition of N. C. to the Republic of France, being a category 1 territory, is not barred by reason of any of the circumstances set out in section 11(1)(a) to (j) of said Act [section 11(1)] ;
that N. C., who is alleged to be unlawfully at large after conviction of an extradition offence, was not convicted in his presence [section 20(1) and (2)] ;
that N. C. did not deliberately absent himself from his trial [section 20(3)] but would be entitled to a retrial with the rights specified in section 20(8) of the said Act [section 20(5) and (8)] ;
that the extradition of N. C. would be compatible with the Convention rights within the meaning of the Human Right Act 1998 [section 21(1)] ;
Therefore, in terms of section 21 (3) of the Extradition Act 2003, Orders N. C. to be extradited to the Republic of France, being the category 1 territory in which said European Arrest warrant was issued.
INCADAT comment
Convention Aims
Courts in all Contracting States must inevitably make reference to and evaluate the aims of the Convention if they are to understand the purpose of the instrument, and so be guided in how its concepts should be interpreted and provisions applied.
The 1980 Hague Child Abduction Convention, explicitly and implicitly, embodies a range of aims and objectives, positive and negative, as it seeks to achieve a delicate balance between the competing interests of the central actors; the child, the left behind parent and the abducting parent, see for example the discussion in the decision of the Canadian Supreme Court: W.(V.) v. S.(D.), (1996) 2 SCR 108, (1996) 134 DLR 4th 481 [INCADAT Reference: HC/E/CA 17].
Article 1 identifies the core aims, namely that the Convention seeks:
"a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."
Further clarification, most notably to the primary purpose of achieving the return of children where their removal or retention has led to the breach of actually exercised rights of custody, is given in the Preamble.
Therein it is recorded that:
"the interests of children are of paramount importance in matters relating to their custody;
and that States signatory desire:
to protect children internationally from the harmful effects of their wrongful removal or retention;
to establish procedures to ensure their prompt return to the State of their habitual residence; and
to secure protection for rights of access."
The aim of return and the manner in which it should best be achieved is equally reinforced in subsequent Articles, notably in the duties required of Central Authorities (Arts 8-10) and in the requirement for judicial authorities to act expeditiously (Art. 11).
Article 13, along with Articles 12(2) and 20, which contain the exceptions to the summary return mechanism, indicate that the Convention embodies an additional aim, namely that in certain defined circumstances regard may be paid to the specific situation, including the best interests, of the individual child or even taking parent.
The Pérez-Vera Explanatory Report draws (at para. 19) attention to an implicit aim on which the Convention rests, namely that any debate on the merits of custody rights should take place before the competent authorities in the State where the child had his habitual residence prior to its removal, see for example:
Argentina
W., E. M. c. O., M. G., Supreme Court, June 14, 1995 [INCADAT Reference: HC/E/AR 362]
Finland
Supreme Court of Finland: KKO:2004:76 [INCADAT Reference: HC/E/FI 839]
France
CA Bordeaux, 19 janvier 2007, No de RG 06/002739 [INCADAT Reference: HC/E/FR 947]
Israel
T. v. M., 15 April 1992, transcript (Unofficial Translation), Supreme Court of Israel [INCADAT Reference: HC/E/IL 214]
Netherlands
X. (the mother) v. De directie Preventie, en namens Y. (the father) (14 April 2000, ELRO nr. AA 5524, Zaaksnr.R99/076HR) [INCADAT Reference: HC/E/NL 316]
Switzerland
5A.582/2007 Bundesgericht, II. Zivilabteilung, 4 décembre 2007 [INCADAT Reference: HC/E/CH 986]
United Kingdom - Scotland
N.J.C. v. N.P.C. [2008] CSIH 34, 2008 S.C. 571 [INCADAT Reference: HC/E/UKs 996]
United States of America
Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) [INCADAT Reference: HC/E/USf 125]
The Pérez-Vera Report equally articulates the preventive dimension to the instrument's return aim (at paras. 17, 18, 25), a goal which was specifically highlighted during the ratification process of the Convention in the United States (see: Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1986)) and which has subsequently been relied upon in that Contracting State when applying the Convention, see:
Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) [INCADAT Reference: HC/E/USf 741]
Applying the principle of equitable tolling where an abducted child had been concealed was held to be consistent with the purpose of the Convention to deter child abduction.
Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 578]
In contrast to other federal Courts of Appeals, the 11th Circuit was prepared to interpret a ne exeat right as including the right to determine a child's place of residence since the goal of the Hague Convention was to deter international abduction and the ne exeat right provided a parent with decision-making authority regarding the child's international relocation.
In other jurisdictions, deterrence has on occasion been raised as a relevant factor in the interpretation and application of the Convention, see for example:
Canada
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT Reference: HC/E/CA 754]
United Kingdom - England and Wales
Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682 [INCADAT Reference: HC/E/UKe 50]
Aims and objectives may equally rise to prominence during the life of the instrument, such as the promotion of transfrontier contact, which it has been submitted will arise by virtue of a strict application of the Convention's summary return mechanism, see:
New Zealand
S. v. S. [1999] NZFLR 625 [INCADAT Reference: HC/E/NZ 296]
United Kingdom - England and Wales
Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716 [INCADAT Reference: HC/E/UKe 60]
There is no hierarchy between the different aims of the Convention (Pérez-Vera Explanatory Report, at para. 18). Judicial interpretation may therefore differ as between Contracting States as more or less emphasis is placed on particular objectives. Equally jurisprudence may evolve, whether internally or internationally.
In United Kingdom case law (England and Wales) a decision of that jurisdiction's then supreme jurisdiction, the House of Lords, led to a reappraisal of the Convention's aims and consequently a re-alignment in court practice as regards the exceptions:
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
Previously a desire to give effect to the primary goal of promoting return and thereby preventing an over-exploitation of the exceptions, had led to an additional test of exceptionality being added to the exceptions, see for example:
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260 [INCADAT Reference: HC/E/UKe 901]
It was this test of exceptionality which was subsequently held to be unwarranted by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
- Fugitive Disentitlement Doctrine:
In United States Convention case law different approaches have been taken in respect of applicants who have or are alleged to have themselves breached court orders under the "fugitive disentitlement doctrine".
In Re Prevot, 59 F.3d 556 (6th Cir. 1995) [INCADAT Reference: HC/E/USf 150], the fugitive disentitlement doctrine was applied, the applicant father in the Convention application having left the United States to escape his criminal conviction and other responsibilities to the United States courts.
Walsh v. Walsh, No. 99-1747 (1st Cir. July 25, 2000) [INCADAT Reference: HC/E/USf 326]
In the instant case the father was a fugitive. Secondly, it was arguable there was some connection between his fugitive status and the petition. But the court found that the connection not to be strong enough to support the application of the doctrine. In any event, the court also held that applying the fugitive disentitlement doctrine would impose too severe a sanction in a case involving parental rights.
In March v. Levine, 249 F.3d 462 (6th Cir. 2001) [INCADAT Reference: HC/E/USf 386], the doctrine was not applied where the applicant was in breach of civil orders.
In the Canadian case Kovacs v. Kovacs (2002), 59 O.R. (3d) 671 (Sup. Ct.) [INCADAT Reference: HC/E/CA 760], the father's fugitive status was held to be a factor in there being a grave risk of harm facing the child.
Author: Peter McEleavy
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].
Protection of Human rights & Fundamental Freedoms
Preparation of INCADAT commentary in progress.
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.
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.