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Nouvelle rechercheAFFAIRE
Nom de l'affaire
RA v DA [2012] NIFam 9
Référence INCADAT
HC/E/UKn 1197
Juridiction
Royaume-Uni - Irlande du Nord
Première instance
États concernés
Malte
Royaume-Uni - Irlande du Nord
Décision
16 November 2012
Définitif
Déplacement et non-retour - art. 3 et 12 | Risque grave - art. 13(1)(b) | Engagements | Opposition de l'enfant au retour - art. 13(2) | Rôle des Autorités centrales - art. 6 - 10 | Questions procédurales
Retour ordonné avec des engagements proposés
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-
INCADAT commentaire
Exceptions au retour
Nature et force de l'opposition
Réactions extrêmes à une ordonnance de retour
Influence parentale sur l'opinion de l'enfant
Mise en œuvre & difficultés d’application
Coopération et communication judiciaires
Coopération des Autorités centrales
Engagements
RÉSUMÉ
Résumé disponible en
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Facts
In October 2004, a Maltese court awarded the mother custody of the child and the father access. Thereafter there were problems surrounding access and criminal proceedings were brought against the mother for denying access to the father. This led to a conviction and the imposition of a probation order.
On 2 June 2011, following an alleged drunken incident at the mother's home, the father was awarded custody. No order was made as regards access for the mother. In July 2012, the mother took the child to Northern Ireland for a vacation. He was not returned on 31 July whereupon the father agreed the stay could continue until the end of August. The child was not returned and return proceedings were commenced by the father on 26 September 2012.
Ruling
Grounds
Removal and Retention - Arts 3 and 12
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Grave Risk - Art. 13(1)(b)
The mother submitted that the child had threatened to harm himself if returned. The trial judge noted that the opinion of the psychiatrist (shared by the general practitioner and social worker) was that there was no evidence of depression or mood or suicidal ideation on the part of the child. The judge held that if returned, sufficient protective measures could be put in place to ensure the child would not suffer any harm.
Undertakings
The father made undertakings to facilitate the return of the child, including paying for return tickets for mother and child, agreeing to access, providing accommodation for the mother, and not invoking criminal proceedings in Malta.
The judge held that protective measures could also be taken by the mother, namely obtaining school reports to ensure no loss of educational benefit when the child returns, and allowing a social worker access to her accommodation prior to returning to Malta.
Objections of the Child to a Return - Art. 13(2)
Procedure:
The trial judge noted the importance of the voice of the child being heard, but he declined to speak to the boy himself. The judge held that the child, aged 10, had been exposed to too many interviews (psychiatrist, Official Solicitor, general practitioner, social worker and possibly headmistress).
Nature of Objection:
The trial judge found that whilst the child had expressed a preference to living in Northern Ireland, he was not satisfied the child was concerned about returning to Malta. Furthermore, he found that the child's views were likely to have been influenced by the mother. The judge therefore ruled that the child's objection was not sufficient to justify a non-return order being made.
Role of the Central Authorities - Arts 6 - 10
The trial judge held that the Northern Irish and Maltese Central Authorities had roles to play to ensure protective measures were in place, namely ensuring the judgment and the father's undertakings were communicated to the Maltese Court. It was also for the Northern Irish Central Authority to emphasise to their Maltese counterparts the importance of any application by the mother for access or residence being dealt with expeditiously.
Procedural Matters
Judicial Communication:
The trial judge made contact, in the presence of counsel, with the Maltese liaison judge. The Maltese judge advised that: upon the mother issuing proceedings, a speedy hearing would take place in Malta; those proceedings could be conducted in English, or an interpreter should be provided; no criminal proceedings would be invoked by the father.
Author of the summary: Peter McEleavy
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).
Extreme Reaction to a Return Order
In a certain number of cases the reaction of children to a proposed return to the State of habitual residence goes beyond a mere objection and may manifest itself in physical opposition to being sent back or the threat of suicide. There have also been examples of an abducting parent threatening to commit suicide if forced to return to the child's State of habitual residence.
Physical Resistance
There are several examples of cases where the views of the children concerned were not gathered or were initially not acted upon and this resulted in the children taking steps to prevent the return order being enforced; in each case the return order was subsequently overturned or dismissed, see:
United Kingdom - England & Wales
Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKe 56];
The children attempted to open the door of the aircraft taking them back to Australia as it taxied for take off at London's Heathrow airport.
Re H.B. (Abduction: Children's Objections) [1998] 1 FLR 422 [INCADAT cite: HC/E/UKe 167];
The younger of two siblings, a girl aged 12, refused to board a plane to take her back to Denmark. Ironically, the older brother had only been made subject to the return order to ensure the siblings would not be separated.
Re B. (Children) (Abduction: New Evidence) [2001] 2 FCR 531 [INCADAT cite: HC/E/UKe 420];
The children attacked the court officers sent to take them to Heathrow airport for their flight back to New Zealand.
Australia
Re F. (Hague Convention: Child's Objections) [2006] FamCA 685, [INCADAT cite: HC/E/AU 864];
An 11 year old boy resisted attempts to place him on a plane to the United States of America.
Threat of Suicide
Where it is alleged at trial that the child or abducting parent will commit suicide if forced to return, it is for the court seized to decide on the veracity of the claim in the light of the available evidence and the circumstances of the case.
The issue of course may not always be raised, as happened in the Hong Kong Special Administrative Region case S. v. S. [1998] 2 HKC 316, [INCADAT cite: HC/E/HK 234] where after a return order was made the mother killed her child and then committed suicide.
Threat of Suicide - Child
Evidence that the child concerned had threatened to commit suicide was central to a non-return order being made in the following cases:
United Kingdom - England & Wales
Re R. (A Minor Abduction) [1992] 1 FLR 105 [INCADAT cite: HC/E/UKe 59].
Israel
Evidence that a child had previously made a suicide attempt in the State of habitual residence was not accepted as justifying a non-return order in:
Family Appeal 1169/99 R. v. L. [INCADAT cite: HC/E/IL 834].
A submission that a child would commit suicide was not accepted as justifying a non-return order in:
B. v. G., Supreme Court 8 April 2008 [INCADAT cite: HC/E/IL 923].
Australia
Commissioner, Western Australia Police v. Dormann, JP (1997) FLC 92-766 [INCADAT cite: HC/E/AU 213].
Threat of Suicide - Abducting parent
Evidence that the abducting parent may commit suicide if forced to return to the child's State of habitual residence has been upheld as creating a situation where the child concerned would be at a grave risk of harm and should not therefore be sent back, see:
Australia
J.L.M. v. Director-General NSW Department of Community Services [2001] HCA 39 [INCADAT cite: HC/E/AU 347];
Director-General, Department of Families v. RSP [2003] FamCA 623 [INCADAT cite: HC/E/AU 544].
Illness
New Zealand
Secretary for Justice v. C., ex parte H., 28/04/2000, transcript, District Court at Otahuhu [INCADAT cite: HC/E/NZ 534].
The latter meeting, during which the child's counsel was present, terminated when the boy became unwell and vomited as a result of the judge mentioning the possibility of a return to Australia.
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].
Judicial Cooperation & Communication
The Fourth Special Commission to review the operation of the 1980 Child Abduction Convention in 2001 recommended that Contracting States actively encourage international judicial co-operation. This view was repeated at the Fifth Special Commission in 2006.
Where this co-operation has manifested itself in the form of direct communication between judges, it has been noted that the procedural standards and safeguards of the forum should be respected. The latter was acknowledged in the "Emerging Guidance and General Principles for Judicial Communications" (Prel. Doc. No 3A for the attention of the Special Commission of June 2011, revised in July 2012) where it is stated in Principles 6.1 to 6.5 that:
"6.1 Every judge engaging in direct judicial communications must respect the law of his or her own jurisdiction.
6.2 When communicating, each judge seized should maintain his or her independence in reaching his or her own decision on the matter at issue.
6.3 Communications must not compromise the independence of the judge seized in reaching his or her own decision on the matter at issue.
6.4 In Contracting States in which direct judicial communications are practised, the following are commonly accepted procedural safeguards:
- except in special circumstances, parties are to be notified of the nature of the proposed communication;
- a record is to be kept of communications and it is to be made available to the parties;
- any conclusions reached should be in writing;
- parties or their representatives should have the opportunity to be present in certain cases, for example via conference call facilities.
6.5 Nothing in these commonly accepted procedural safeguards prevents a judge from following rules of domestic law or practices which allow greater latitude."
Direct judicial co-operation has been employed in several jurisdictions:
Canada
Y.D. v. J.B., [1996] R.D.F. 753 (Que.C.A.) [INCADAT Reference: HC/E/CA/ 369]
Hoole v. Hoole, 2008 BCSC 1248 [INCADAT Reference: HC/E/CA/ 991]
Adkins v. Adkins, 2009 BCSC 337 [INCADAT Reference: HC/E/CA 1108]
In this case, as a result of the direct communication, the Convention proceedings were adjourned pending an adjudication of the substantive custody issue by the competent Court of the child's State of habitual residence in Nevada, United States of America.
United Kingdom - England and Wales
Re M. and J. (Abduction) (International Judicial Collaboration) [1999] 3 FCR 721 [INCADAT Reference: HC/E/UKe 266]
Re A. (Custody Decision after Maltese Non-Return Order) [2006] EWHC 3397, [2007] 1 FLR 1923 [INCADAT Reference: HC/E/UKe 883]
United Kingdom - Northern Ireland
RA v DA [2012] NIFam 9 [INCADAT Reference: HC/E/UKn 1197]
United States of America
Panazatou v. Pantazatos, No. FA 960713571S (Conn. Super. Ct. Sept. 24, 1997) [INCADAT Reference: HC/E/USs 97]
Special provision is made for judicial communication in the Uniform Child-Custody Jurisdiction and Enforcement Act (1997), s. 110, see:
http://www.uniformlaws.org/shared/docs/child_custody_jurisdiction/uccjea_final_97.pdf
Criticism of the practice of direct judicial co-operation has been raised by the High Court of the Hong Kong Special Administrative Region - Court of Appeal in D. v. G. [2001] 1179 HKCU 1 [INCADAT Reference: HC/E/HK 595].
A study of all aspects of international judicial co-operation was undertaken by Philippe Lortie, Permanent Bureau of the Hague Conference on Private International Law, first in 2002: "Practical Mechanisms for Facilitating Direct International Judicial Communications in the Context of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Preliminary Report", Preliminary Document No 6 of August 2002 for the attention of the Special Commission of September / October 2002.
In 2006, Philippe Lortie prepared the "Report on Judicial Communications in Relation to International Child Protection", Preliminary Document No 8 of October 2006 for the attention of the Fifth Meeting of the Special Commission to review the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (30 October - 9 November 2006).
(See < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" and "Preliminary Documents".)
In 2013, the Permanent Bureau of the Hague Conference published the brochure "Direct Judicial Communications - Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges". (See < www.hcch.net >, under "Publications", then "Brochures".)
For other commentaries see:
Hague Conference "The Judges' Newsletter" Volume IV/Summer 2002 and Volume XV/Autumn 2009. (See < www.hcch.net >, under "Child Abduction Section" then "Judges' Newsletter".)
R. Moglove Diamond, "Canadian Initiatives Respecting the Handling of Hague Abduction Convention Cases" (2008) 50 R.F.L. (6th) 275.
(June 2014)
Central Authorities' Co-operation
Preparation of INCADAT commentary in progress.
Undertakings
Preparation of INCADAT case law analysis in progress.