AFFAIRE

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Nom de l'affaire

Donofrio v. Burrell

Référence INCADAT

HC/E/UKs 348

Juridiction

Pays

Royaume-Uni - Écosse

Nom

Outer House of the Court of Session (tribunal de première instance) (Ecosse)

Degré

Première instance

États concernés

État requérant

Canada

État requis

Royaume-Uni - Écosse

Décision

Date

3 March 1999

Statut

-

Motifs

Droit de visite - art. 21 | Questions procédurales

Décision

-

Article(s) de la Convention visé(s)

21

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

21

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

INCADAT commentaire

Droit de visite / droit d’entretenir un contact

Droit de visite / droit d’entretenir un contact
Protection du droit de visite

RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The application related to two girls, aged 10 and 8 1/2 at the date of the hearing. The parents divorced in Canada in 1991, a little over a year after the birth of the second child. The mother was awarded custody, the father access.

In 1997 the mother took the 2 children, plus a child from a subsequent marriage, from their home in Canada to Scotland. The purpose of the trip was to visit the maternal grandfather who was ill and was undertaken with the consent of the fathers.

However, the mother did not return with the children and after 6 months she terminated telephone contact with the first husband / father.

The fathers then petitioned for the return of the children under the Convention. The second husband / father succeeded in his application, but, the first husband / father failed on the basis that he did not possess any rights of custody.

The first husband / father, who had remained in Canada, then petitioned under the Convention for assistance in exercising his rights of access. The application was opposed by the mother.

Ruling

Application for access under Article 21 allowed to proceed.

Grounds

Rights of Access - Art. 21

It was argued on behalf of the mother first that Article 21 did not confer any private law rights on an applicant, therefore the relevant Scottish procedural rule, Rule 70.5(2) of the Court of Session, was not entitled to allow ‘an application for access to a child under the Hague Convention.’ Alternatively, it was submitted that if an application could be made under Rule 70.5(2) it had to be for access in the same terms as the foreign order and since this was not the case in the present case the petition should fail. The trial judge held that a court should treat an Article 21 application in the same way as a domestic contact application. In this the existence of the Canadian order did not alter the substantive law applicable to the case. Furthermore he rejected the first submission, finding that although an Article 21 application was in effect a domestic application otherwise made under s. 11(2)(d) of the Children (Scotland) Act 1995, Rule 70.5(2) had made an exception to that and the application was therefore competent. However, he did consider that as an Article 21 application did not have to be treated in the same way as a return application there was cause to question whether r. 70.5(2) was needed at all. As to the subsidiary point the trial judge ruled that it would not be appropriate to regard any discrepancy between the order held and the order sought as taking the application out of the scope of r. 70.5(2). Notwithstanding his order the trial judge granted the mother leave to appeal.

Procedural Matters

The father was granted legal aid for his application by the Scottish Central Authority.

INCADAT comment

This decision was upheld on appeal, see: Donofrio v. Burrell, 2000 S.L.T. 1051 [INCADAT Reference: HC/E/UKs 349].

Protection of Rights of Access

Article 21 has been subjected to varying interpretations.  Contracting States favouring a literal interpretation have ruled that the provision does not establish a basis of jurisdiction for courts to intervene in access matters and is focussed on procedural assistance from the relevant Central Authority.  Other Contracting States have allowed proceedings to be brought on the basis of Article 21 to give effect to existing access rights or even to create new access rights.

A literal interpretation of the provision has found favour in:

Austria
S. v. S., 25 May 1998, transcript (official translation), Regional civil court at Graz, [INCADAT cite: HC/E/AT 245];

Germany
2 UF 286/97, Oberlandesgericht Bamberg, [INCADAT cite: HC/E/DE 488];

United States of America
Bromley v. Bromley, 30 F. Supp. 2d 857, 860-61 (E.D. Pa. 1998). [INCADAT cite: HC/E/USf 223];

Teijeiro Fernandez v. Yeager, 121 F. Supp. 2d 1118, 1125 (W.D. Mich. 2000);

Janzik v. Schand, 22 November 2000, United States District Court for the Northern District of Illinois, Eastern Division, [INCADAT cite: HC/E/USf 463];

Wiggill v. Janicki, 262 F. Supp. 2d 687, 689 (S.D.W. Va. 2003);

Yi Ly v. Heu, 296 F. Supp. 2d 1009, 1011 (D. Minn. 2003);

In re Application of Adams ex. rel. Naik v. Naik, 363 F. Supp. 2d 1025, 1030 (N.D. Ill. 2005);

Wiezel v. Wiezel-Tyrnauer, 388 F. Supp. 2d 206 (S.D.N.Y. 2005), [INCADAT cite: HC/E/USf 828];

Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006), [INCADAT cite: HC/E/USf 827]. 

In Cantor, the only US appellate decision on Article 21, there was a dissenting judgment which found that the US implementing act did provide a jurisdictional basis for federal courts to hear an application with regard to an existing access right.

United Kingdom - England & Wales
In Re G. (A Minor) (Enforcement of Access Abroad) [1993] Fam 216 [INCADAT cite: HC/E/UKs 110].

More recently however the English Court of Appeal has suggested that it might be prepared to consider a more permissive interpretation:

Hunter v. Murrow [2005] [2005] 2 F.L.R. 1119, [INCADAT cite: HC/E/UKe 809].

Baroness Hale has recommended the elaboration of a procedure whereby the facilitation of rights of access in the United Kingdom under Article 21 could be contemplated at the same time as the return of the child under Article 12:

Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51[INCADAT cite: HC/E/UKe 880].

Switzerland
Arrondissement judiciaire I Courterlary-Moutier-La Neuveville (Suisse) 11 October 1999, N° C 99 4313 [INCADAT cite: HC/E/CH 454].                        

A more permissive interpretation of Article 21 has indeed been adopted elsewhere, see:

United Kingdom - Scotland
Donofrio v. Burrell, 2000 S.L.T. 1051 [INCADAT cite: HC/E/UKs 349].

Wider still is the interpretation adopted in New Zealand, see:

Gumbrell v. Jones [2001] NZFLR 593 [INCADAT cite: HC/E/NZ 446].

Australia
The position in Australia has evolved in the light of statutory reforms.

Initially a State Central Authority could only apply for an order that was ‘necessary or appropriate to organise or secure the effective exercise of rights of access to a child in Australia', see:

Director-General, Department of Families Youth & Community Care v. Reissner [1999] FamCA 1238, (1999) 25 Fam LR 330, [INCADAT cite: HC/E/AU 278].

Subsequently it acquired the power to initiate proceedings to establish access rights:

State Central Authority & Peddar [2008] FamCA 519, [INCADAT cite: HC/E/AU 1107];

State Central Authority & Quang [2009] FamCA 1038, [INCADAT cite: HC/E/AU 1106].