AFFAIRE

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Nom de l'affaire

In re Coffield, 96 Ohio App. 3d 52, 644 N.E.2d 662 (1994)

Référence INCADAT

HC/E/USs 138

Juridiction

Pays

États-Unis d'Amérique - Niveau étatique

Nom

Court of Appeals of Ohio, Eleventh Appellate District, Portage County (Etats-Unis)

Degré

Deuxième Instance

États concernés

État requérant

Australie

État requis

États-Unis d'Amérique - Niveau étatique

Décision

Date

6 March 1994

Statut

Définitif

Motifs

Risque grave - art. 13(1)(b) | Intégration de l'enfant - art. 12(2) | Questions procédurales

Décision

Recours rejeté, retour ordonné

Article(s) de la Convention visé(s)

13(1)(b) 12(2)

Article(s) de la Convention visé(s) par le dispositif

13(1)(b) 12(2)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

INCADAT commentaire

Exceptions au retour

Problèmes généraux
Nature limitée des exceptions
Intégration de l'enfant
Intégration de l'enfant
Dissimulation de l'enfant
Principe de la suspension équitable du délai de prescription (« equitable tolling »)
Pouvoir d'ordonner le retour nonobstant l'intégration

RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The child, a boy, was 2 at the date of the alleged wrongful removal. In 1991 he was taken from his home in Australia by his father.

On 20 April 1994 the Juvenile Division of the Portage County Court of Common Pleas ordered the return of the boy.

The father appealed.

Ruling

Appeal dismissed and return ordered; the standard required under Articles 13(1)(b) and 12(2) had not been met.

Grounds

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

The scope of a trial court’s inquiry under the grave risk exception is very narrow. The court rejected the father’s assertion that the trial court erred in denying a pre-trial motion for psychological testing of himself, the mother and the child. Testing would only produce evidence which would normally be considered in a custody hearing.

Settlement of the Child - Art. 12(2)

Three years had elapsed between the abduction and the return application being filed. It was noted however that the boy had only been in Ohio for ten months prior to the proceedings being commenced. There was no evidence that he had been enrolled in school or other activities. The boy had not been shown to have developed relationships with other individuals other than those specifically chosen by the father.

Procedural Matters

It may be noted that just over one month elapsed between the trial and the appeal.

INCADAT comment

Limited Nature of the Exceptions

Preparation of INCADAT case law analysis in progress.

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.

Concealment

Where children are concealed in the State of refuge courts are reluctant to make a finding of settlement, even if many years elapse before their discovery:

Canada (7 years elapsed)
J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [INCADAT cite: HC/E/CA 754];

See however the decision of the Cour d'appel de Montréal in:

Droit de la Famille 2785, Cour d'appel de  Montréal, 5 December 1997, No 500-09-005532-973 [INCADAT cite: HC/E/CA 653].

United Kingdom - Scotland (2 ½ years elapsed)
C. v. C. [2008] CSOH 42, 2008 S.C.L.R. 329 [INCADAT cite: HC/E/UKs 962];

Switzerland (4 years elapsed)
Justice de Paix du cercle de Lausanne (Magistrates' Court), decision of 6 July 2000, J 765 CIEV 112E [INCADAT cite: HC/E/CH 434];

United States of America
(2 ½ years elapsed)
Lops v. Lops, 140 F. 3d 927 (11th Cir. 1998) [INCADAT cite: HC/E/USf 125];

(3 years elapsed)
In re Coffield, 96 Ohio App. 3d 52, 644 N.E. 2d 662 (1994) [INCADAT cite: HC/E/USs 138].

Non-return orders have been made where notwithstanding the concealment the children have still been able to lead open lives:

United Kingdom - England & Wales (4 years elapsed)
Re C. (Abduction: Settlement) (No 2) [2005] 1 FLR 938 [INCADAT cite: HC/E/UKe 815];

China - (Hong Kong Special Administrative Region) (4 ¾ years elapsed)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825].

Equitable Tolling

In accordance with this principle the one year time limit in Article 12 is only deemed to commence from the date of the discovery of the children. The rationale being that otherwise an abducting parent who concealed children for more than a year would be rewarded for their misconduct by creating eligibility for an affirmative defence which was not otherwise available.

Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 578].

The principle of 'equitable tolling' in the context of the time limit specified in Article 12 has been rejected in other jurisdictions, see:

United Kingdom - England & Wales
Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT Reference: HC/E/UKe 598];

China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT Reference: HC/E/HK 825];

New Zealand
H.J. v. Secretary for Justice [2006] NZFLR 1005 [INCADAT Reference: HC/E/NZ 1127].

Discretion to make a Return Order where Settlement is established

Unlike the Article 13 exceptions, Article 12(2) does not expressly afford courts a discretion to make a return order if settlement is established.  Where this issue has arisen for consideration the majority judicial view has nevertheless been to apply the provision as if a discretion does exist, but this has arisen in different ways.

Australia
The matter has not been conclusively decided but there would appear to be appellate support for inferring a discretion, reference has been made to English and Scottish case law, see:

Director-General Department of Families, Youth and Community Care v. Moore, (1999) FLC 92-841 [INCADAT cite: HC/E/AU 276].

United Kingdom - England & Wales
English case law initially favoured inferring that a Convention based discretion existed by virtue of Article 18, see:

Re S. (A Minor) (Abduction) [1991] 2 FLR 1, [INCADAT cite: HC/E/UKe 163];

Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT cite: HC/E/UKe 598].

However, this interpretation was expressly rejected in the House of Lords decision Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937].  A majority of the panel held that the construction of Article 12(2) left the matter open that there was an inherent discretion where settlement was established.  It was pointed out that Article 18 did not confer any new power to order the return of a child under the Convention, rather it contemplated powers conferred by domestic law.

Ireland
In accepting the existence of a discretion reference was made to early English authority and Article 18.

P. v. B. (No. 2) (Child Abduction: Delay) [1999] 4 IR 185; [1999] 2 ILRM 401 [INCADAT cite: HC/E/IE 391].

New Zealand
A discretion derives from the domestic legislation implementing the Convention, see:

Secretary for Justice (as the NZ Central Authority on behalf of T.J) v. H.J. [2006] NZSC 97, [INCADAT cite: HC/E/NZ 882].

United Kingdom - Scotland
Whilst the matter was not explored in any detail, settlement not being established, there was a suggestion that a discretion would exist, with reference being made to Article 18.

Soucie v. Soucie 1995 SC 134, [INCADAT cite: HC/E/UKs 107].

There have been a few decisions in which no discretion was found to attach to Article 12(2), these include:

Australia
State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232], - subsequently questioned;

State Central Authority v. C.R. [2005] Fam CA 1050 [INCADAT cite: HC/E/AU 824];

United Kingdom - England & Wales
Re C. (Abduction: Settlement) [2004] EWHC 1245, [2005] 1 FLR 127, [INCADAT cite: HC/E/UKe 596] - subsequently overruled;

China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825];

Canada (Québec)
Droit de la Famille 2785, Cour d'appel de Montréal, 5 décembre 1997, No 500-09-005532-973 , [INCADAT cite: HC/E/CA 653].

Article 18 not being included in the act implementing the Convention in Quebec, it is understood that courts do not possess a discretionary power where settlement is established.

For academic commentary on the use of discretion where settlement is established, see:

Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' OUP, Oxford, 1999 at p. 204 et seq.;

R. Schuz, ‘In Search of a Settled Interpretation of Article 12(2) of the Hague Child Abduction Convention' [2008] Child and Family Law Quarterly.