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Nouvelle rechercheAFFAIRE
Nom de l'affaire
Tribunal d'arrondissement de Luxembourg, 29 octobre 1992, Référé No 1895/92
Référence INCADAT
HC/E/LU 1114
Juridiction
Luxembourg
Première instance
États concernés
Portugal
Luxembourg
Décision
29 October 1992
Inconnu
Rôle des Autorités centrales - art. 6 - 10
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Loi du 16.5.1986 portant approbation de la Convention de La Haye; Nouveau Code de procédure civile.
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INCADAT commentaire
Objectifs et domaine d’application de la Convention
Questions de compétence dans le cadre de la Convention de La Haye
Mécanisme de retour
Retour après une période de plus d'un an
Exceptions au retour
Risques inhérents à l'État de la résidence habituelle de l'enfant
Mise en œuvre & difficultés d’application
Frais
RÉSUMÉ
Résumé disponible en
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Facts
In 1992, the mother went to Luxembourg with her daughters. She then died. The maternal grandparents took charge of the children and refused to return them to the father.
Ruling
Grounds
Role of the Central Authorities - Arts 6 - 10
The father had summoned the grandparents in summary proceedings. The application for permission to serve summons in summary proceedings was served by the Assistant Public Prosecutor on behalf of the father. Thereupon, the Senior Vice President of the Court permitted the local Public Prosecutor's Office to summon the grandparents in extraordinary summary proceedings.
The Court noted that under the statute implementing the Convention and Article 7(f), the Senior State Prosecutor is the authority provided for by Art. 6 of the Convention and has locus standi to act directly or with any intermediary's assistance.
Art 987-1 of the New Code of Civil Procedure requires the State Prosecutor to act in his name upon a referral from the Portuguese authorities and the Luxembourg Public Prosecutor's Office, and expressly permits any person concerned to apply directly to the appropriate court.
The Court deduced that the suit should have been brought either directly by the State Prosecutor or by any interested party, but in the latter case without involving the State Prosecutor.
Author of the summary: Aude Fiorini, United Kingdom
INCADAT comment
Jurisdiction Issues under the Hague Convention
Jurisdiction Issues under the Hague Convention (Art. 16)
Given the aim of the Convention to secure the prompt return of abducted children to their State of habitual residence to allow for substantive proceedings to be convened, it is essential that custody proceedings not be initiated in the State of refuge. To this end Article 16 provides that:
"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."
Contracting States which are also party to the 1996 Hague Convention are provided greater protection by virtue of Article 7 of that instrument.
Contracting States which are Member States of the European Union and to which the Council Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels II a Regulation) applies are provided further protection still by virtue of Article 10 of that instrument.
The importance of Article 16 has been noted by the European Court of Human Rights:
Iosub Caras v. Romania, Application No. 7198/04, (2008) 47 E.H.R.R. 35, [INCADAT cite: HC/E/ 867];
Carlson v. Switzerland no. 49492/06, 8 November 2008, [INCADAT cite: HC/E/ 999].
When should Article 16 be applied?
The High Court in England & Wales has held that courts and lawyers must be pro-active where there is an indication that a wrongful removal or retention has occurred.
R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].
When a court becomes aware, expressly or by inference that there has been a wrongful removal or retention it receives notice of that wrongful removal or retention within the meaning of Article 16. Moreover, it is the duty of the court to consider taking steps to secure that the parent in that State is informed of his or her Convention rights.
Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, [INCADAT cite: HC/E/UKe 478]
Lawyers, even those acting for abducting parents, had a duty to draw the attention of the court to the Convention where this was relevant.
Scope and Duration of Article 16 Protection?
Article 16 does not prevent provisional and protective measures from being taken:
Belgium
Cour de cassation 30/10/2008, CG c BS, N° de rôle: C.06.0619.F, [INCADAT cite : HC/E/BE 750].
However, in this case the provisional measures ultimately became final and the return was never enforced, due to a change in circumstances.
A return application must be made within a reasonable period of time:
France
Cass Civ 1ère 9 juillet 2008 (N° de pourvois K 06-22090 & M 06-22091), 9.7.2008, [INCADAT cite : HC/E/FR 749]
United Kingdom - England & Wales
R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].
A return order which has become final but has not yet been enforced is covered by Article 16:
Germany
Bundesgerichtshof, XII. Zivilsenat Decision of 16 August 2000 - XII ZB 210/99, BGHZ 145, 97 16 August 2000 [INCADAT cite: HC/E/DE 467].
Article 16 will no longer apply when a return order cannot be enforced:
Switzerland
5P.477/2000/ZBE/bnm, [INCADAT cite : HC/E/CH 785].
After 12 Month Period
Preparation of INCADAT commentary in progress.
Risks associated with the child's State of habitual residence
Article 13(1)(b) has on occasion been raised not with regard to a specific risk directed at the individual child, but as the result of general circumstances prevailing in the State of habitual residence.
In the well-known US appellate case of Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) [INCADAT Reference: HC/E/USf 82], it was held, inter alia, that a grave risk could only exist when the return would put the child in imminent danger prior to the resolution of a custody dispute, e.g. by returning the child to a war zone or famine area.
This argument has been raised most frequently with regard to Israel.
Return to Israel
Courts have been divided over whether a return to Israel would expose a child to a grave risk of harm, but a clear majority has taken the view that it would not, see:
Argentina
A. v. A. [INCADAT Reference: HC/E/AR 487]
Australia
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 [INCADAT Reference: HC/E/AU 995]
Belgium
No 03/3585/A, Tribunal de première instance de Bruxelles [INCADAT Reference: HC/E/BE 547]
Canada
Docket No 1 F 3709/00; C., 4 December 2001, Superior Court of Justice, Ontario, Court File No 01-FA-10575
Denmark
V.L.K., 11. januar 2002, 13. afdeling, B-2939-01 [INCADAT Reference: HC/E/DK 519]
United Kingdom - England and Wales
Re S. (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 [INCADAT Reference: HC/E/UKe 469]
France
CA Aix en Provence, 8 octobre 2002, No de RG 02/14917 [INCADAT Reference: HC/E/FR 509]
Germany
1 F 3709/00, Familiengericht Zweibrücken, 25 January 2001 [INCADAT Reference: HC/E/DE 392]
United States of America
Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) [INCADAT Reference: HC/E/USf 133]
However, the argument has been upheld on several occasions:
Australia
Janine Claire Genish-Grant and Director-General Department of Community Services [2002] FamCA 346 [INCADAT Reference: HC/E/AU 458]
United States of America
Silverman v. Silverman, 2002 U.S. Dist. LEXIS 8313 [INCADAT Reference: HC/E/USf 481] (see however: Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/US 530])
Return to Zimbabwe
The highest jurisdiction in the United Kingdom, the House of Lords, rejected in 2008 a submission that the moral and political climate in Zimbabwe was such that any child would be at grave risk of psychological harm, or should not be expected to tolerate having to live there.
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55 [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]
Return to Mexico
CA Rennes, 28 juin 2011, No de RG 11/02685 [INCADAT Reference: HC/E/FR 1129]
The mother mentioned the pollution of Mexico City, the insecurity due to crime in the Mexico City metropolis, and earthquake risks. She did not, however, show how these risks affected the children personally and directly. She had not mentioned those factors as justification for her decision to move to France, in a document sent to the father in 2010, but had referred to financial and family difficulties. In addition, the Court of Appeal noted that these factors had not deterred her from living in Mexico from 1998 to 2010 and raising two children there. It further noted that the mother had not seen fit to apply to the Mexican authorities for permission to move to France with the children, without explaining the reasons which in her view could jeopardise her right to a fair trial in Mexico.
The Court of Appeal made it clear that it did not affirm that the pleas raised by the mother were groundless. They might be used in connection with the issue of custody, but were not a sufficient proof of a grave risk.
(Author: Peter McEleavy, April 2013)
Costs
Preparation of INCADAT commentary in progress.