AFFAIRE

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Nom de l'affaire

Bundesgericht, II. Zivilabteilung (Federal Supreme Court, 2nd Civil Chamber) Decision of 13 September 2001, 5P.160/2001/min

Référence INCADAT

HC/E/CH 423

Juridiction

Pays

Suisse

Nom

Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) (Suisse)

Degré

Instance Suprême

États concernés

État requérant

États-Unis d'Amérique

État requis

Suisse

Décision

Date

13 September 2001

Statut

Définitif

Motifs

Questions procédurales

Décision

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Article(s) de la Convention visé(s)

13(1)(b) 13(3)

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

13(1)(b) 13(3)

Autres dispositions
Article 9 of the Swiss federal Constitution, Articles 3 (1), 12 (1) UN Convention on the Rights of the Child
Jurisprudence | Affaires invoquées

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INCADAT commentaire

Mise en œuvre & difficultés d’application

Questions procédurales
Exécution de l'ordonnance de retour

RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The child, a girl, was two and a half years old at the date of the alleged wrongful removal. She had until then lived all of her life in the United States. The parents, an American father and a Swiss mother, had divorced in the United States in 1995 and had joint rights of custody. In September 1996 the mother took the child to Switzerland.

In September 1996 the Zurich District Court (Bezirksgericht) granted the mother full custody over the child on an interim basis pending a decision on the merits. On 26 September 1996 the father initiated return proceedings. On 15 November 1996 the Zurich District Court dismissed the father's return application in summary proceedings.

On 6 March 1997 the Superior Court of the Zurich Canton (Obergericht) allowed the father's appeal and ordered the return of the child within ten days following service of the decision on the mother.

On 6 August 1997 the Federal Supreme Court (Bundesgericht) dismissed the mother's further appeal against the return order. Two attempts to enforce the return order in October 1997 failed and the mother subsequently applied to the Superior Court of the Zurich Canton to set aside the return order of 6 March 1997 and suspend enforcement until a ruling was made on her application.

On 19 December 1997 the Superior Court decided not to entertain the mother's application. On 25 April 1998 the Court of Cassation of the Canton Zurich dismissed an appeal to declare the return order of the Superior Court of 19 December 1997 null and void.

Further appeals to the Federal Supreme Court against these two decisions were dismissed. In May 1998 mother and child moved from Zurich to Aargau. On 16 October and 6 November 2000 the Superior Court of the Zurich Canton refused to entertain further appeals lodged by mother and child. The appeals for nullity brought against these decisions were dismissed by the Court of Cassation of the Zurich Canton.

Mother and daughter lodged further appeals against the decisions of the Superior Court of 16 October and 6 November 2000 which were still pending before the Federal Supreme Court at the time of the present decision. The father's application to enforce the Zurich return order of 6 March 1997 was dismissed by the competent District Court of the Aargau Canton.

On 26 March 2001 the Superior Court of the Aargau Canton rejected his appeal against the refusal, stating that the four-year-old return order could not be enforced without re-examining the best interests of the child who was now 9 years old. The court considered it to be irrelevant in this context that the main reason for the non-enforcement of the order had been the applications and appeals lodged by the mother herself.

The father then lodged a further appeal with the Federal Supreme Court.

Ruling

Appeal dismissed; refusal to enforce return order upheld. The Court did not find that the refusal to enforce the return order had violated any of the applicant father's rights under either the Swiss Federal Constitution or any international instrument.

Grounds

Procedural Matters

The appeal lodged by the applicant father allowed the Federal Supreme Court to consider whether the failure to enforce the return order had led to the violation of any provisions of the Swiss Federal Constitution or indeed of any international conventions. The Court found, inter alia, that the lower court had not acted arbitrarily (Article 9 of the Federal Constitution) when it ordered an expert opinion on the possible harm to the child if the 4 year-old return order were to be enforced. Moreover, the fact the expert had heard the child in person, but not the applicant, did not violate the latter's right to be heard (Article 29 (2) of the Federal Constitution). This was because the expert was to assess the psychological state of the child, not that of the father. Furthermore the father had had the opportunity to comment on the expert report before the trial court. The refusal to enforce the return order did not constitute a violation of Article 13(1)b or Article 13(3) of the Convention since these provisions did not apply at the enforcement stage. The Court noted that the Hague Convention did not contain any provisions on enforcement as such. The latter, including possible legal remedies against enforcement, were therefore to be governed by national law. Given that the “object” of enforcement was a child, under Swiss law the child’s best interests would have to be taken into account at the enforcement stage. The Court found that the lower courts, acting at the enforcement stage, had correctly assumed that they were not entitled to review or amend the return order; this was to be done by a court having jurisdiction on the merits. The courts responsible for enforcement were however obliged and entitled to check whether any obstacles to enforcement existed, and in the present case this involved an examination of whether the enforcement of a four-year-old return order was still in the child’s best interest. The Court further noted that the Hague Convention sometimes allows “the child’s best interests prevail over the interest to return an abducted child (Article 12 (2), 13 (1) b and 13 (2))”. The Court concluded that it could not see any violation of the applicant’s rights granted either by the Federal Constitution or by international instruments.

INCADAT comment

For academic commentary on this case, see the Note by Prof. Andreas Bucher, Geneva, AJP/PJA 4/2002, p. 471-479. A summary of the decision of 6 August 1997 is available at: Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 6 août 1997 [INCADAT Reference: HC/E/CH 792]; Summaries of the decisions of the Supreme Court on the parallel legal challenges mounted by the mother and child are available at: Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 16 octobre 2001, 5P.477/2000/ZBE/bnm [INCADAT Reference: HC/E/CH 785], 5P.454/2000/ZBE/bnm, Bundesgericht, II. Zivilabteilung [INCADAT Reference: HC/E/CH 786].

Enforcement of Return Orders

Where an abducting parent does not comply voluntarily the implementation of a return order will require coercive measures to be taken.  The introduction of such measures may give rise to legal and practical difficulties for the applicant.  Indeed, even where ultimately successful significant delays may result before the child's future can be adjudicated upon in the State of habitual residence.  In some extreme cases the delays encountered may be of such length that it may no longer be appropriate for a return order to be made.


Work of the Hague Conference

Considerable attention has been paid to the issue of enforcement at the Special Commissions convened to review the operation of the Hague Convention.

In the Conclusions of the Fourth Review Special Commission in March 2001 it was noted:

"Methods and speed of enforcement

3.9        Delays in enforcement of return orders, or their non-enforcement, in certain Contracting States are matters of serious concern. The Special Commission calls upon Contracting States to enforce return orders promptly and effectively.

3.10        It should be made possible for courts, when making return orders, to include provisions to ensure that the order leads to the prompt and effective return of the child.

3.11        Efforts should be made by Central Authorities, or by other competent authorities, to track the outcome of return orders and to determine in each case whether enforcement is delayed or not achieved."

See: < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" and "Conclusions and Recommendations".

In preparation for the Fifth Review Special Commission in November 2006 the Permanent Bureau prepared a report entitled: "Enforcement of Orders Made Under the 1980 Convention - Towards Principles of Good Practice", Prel. Doc. No 7 of October 2006, (available on the Hague Conference website at < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" then "Preliminary Documents").

The 2006 Special Commission encouraged support for the principles of good practice set out in the report which will serve moreover as a future Guide to Good Practice on Enforcement Issues, see: < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" then "Conclusions and Recommendations" then "Special Commission of October-November 2006"


European Court of Human Rights (ECrtHR)

The ECrtHR has in recent years paid particular attention to the issue of the enforcement of return orders under the Hague Convention.  On several occasions it has found Contracting States to the 1980 Hague Child Abduction Convention have failed in their positive obligations to take all the measures that could reasonably be expected to enforce a return order.  This failure has in turn led to a breach of the applicant parent's right to respect for their family life, as guaranteed by Article 8 of the European Convention on Human Rights (ECHR), see:

Ignaccolo-Zenide v. Romania, No. 31679/96, (2001) 31 E.H.R.R. 7, [INCADAT cite: HC/E/ 336];

Sylvester v. Austria, Nos. 36812/97 and 40104/98, (2003) 37 E.H.R.R. 17, [INCADAT cite: HC/E/ 502];

H.N. v. Poland, No. 77710/01, (2005) 45 EHRR 1054, [INCADAT cite: HC/E/ 811];

Karadžic v. Croatia, No. 35030/04, (2005) 44 EHRR 896, [INCADAT cite: HC/E/ 819];

P.P. v. Poland, No. 8677/03, 8 January 2008, [INCADAT cite: HC/E/ 941].

The Court will have regard to the circumstances of the case and the action taken by the national authorities.  A delay of 8 months between the delivery of a return order and enforcement was held not to have constituted a breach of the left behind parent's right to family life in:

Couderc v. Czech Republic, 31 January 2001, No. 54429/00, [INCADAT cite: HC/E/ 859].

The Court has dismissed challenges by parents who have argued that enforcement measures, including coercive steps, have interfered with their right to a family life, see:

Paradis v. Germany, 15 May 2003, No. 4783/03, [INCADAT cite: HC/E/ 860];

A.B. v. Poland, No. 33878/96, 20 November 2007, [INCADAT cite: HC/E/ 943];

Maumousseau and Washington v. France, No. 39388/05, 6 December 2007, [INCADAT cite: HC/E/ 942].

The positive obligation to act when faced with the enforcement of a custody order in a non-Hague Convention child abduction case was upheld in:

Bajrami v. Albania, 12 December 2006 [INCADAT cite: HC/E/ 898].

However, where an applicant parent has contributed to delay this will be a relevant consideration, see as regards the enforcement of a custody order following upon an abduction:

Ancel v. Turkey, No. 28514/04, 17 February 2009, [INCADAT cite: HC/E/ 1015].


Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights has held that the immediate enforcement of a return order whilst a final legal challenge was still pending did not breach Articles 8, 17, 19 or 25 of the American Convention on Human Rights (San José Pact), see:

Case 11.676, X et Z v. Argentina, 3 October 2000, Inter-American Commission on Human Rights Report n°71/00, [INCADAT cite: HC/E/ 772].


Case Law on Enforcement

The following are examples of cases where a return order was made but enforcement was resisted:

Belgium
Cour de cassation 30/10/2008, C.G. c. B.S., N° de rôle: C.06.0619.F, [INCADAT cite: HC/E/BE 750];

Canada
H.D. et N.C. c. H.F.C., Cour d'appel (Montréal), 15 mai 2000, N° 500-09-009601-006 (500-04-021679-007), [INCADAT cite: HC/E/CA 915];

Switzerland
427/01/1998, 49/III/97/bufr/mour, Cour d'appel du canton de Berne (Suisse); [INCADAT cite: HC/E/CH 433];

5P.160/2001/min, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile); [INCADAT cite: HC/E/CH 423];

5P.454/2000/ZBE/bnm, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile); [INCADAT cite: HC/E/CH 786];

5P.115/2006/bnm, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile); [INCADAT cite: HC/E/CH 840].

Enforcement may equally be rendered impossible because of the reaction of the children concerned, see:

United Kingdom - England & Wales
Re B. (Children) (Abduction: New Evidence) [2001] 2 FCR 531; [INCADAT cite: HC/E/UKe 420];

United Kingdom - Scotland
Cameron v. Cameron (No. 3) 1997 SCLR 192; [INCADAT cite: HC/E/UKs 112];

Spain
Auto Juzgado de Familia Nº 6 de Zaragoza (España), Expediente Nº 1233/95-B; [INCADAT cite: HC/E/ES 899].


Enforcement of Return Orders Pending Appeal

For examples of cases where return orders have been enforced notwithstanding an appeal being pending see:

Argentina
Case 11.676, X et Z v. Argentina, 3 October 2000, Inter-American Commission on Human Rights Report n° 11/00 [INCADAT cite: HC/E/ 772].

The Inter-American Commission on Human Rights has held that the immediate enforcement of a return order whilst a final legal challenge was still pending did not breach Articles 8, 17, 19 or 25 of the American Convention on Human Rights (San José Pact).

Spain
Sentencia nº 120/2002 (Sala Primera); Número de Registro 129/1999. Recurso de amparo [INCADAT cite: HC/E/ES 907];

United States of America
Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. Va., 2003) [INCADAT cite: HC/E/USf 494].

In Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) [INCADAT cite: HC/E/USf 461] while it is not clear whether the petition was lodged prior to the return being executed, the appeal was nevertheless allowed to proceed.

However, in Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001) [INCADAT cite: HC/E/USf 909] an appeal was not allowed to proceed once the child was returned to the State of habitual residence.

In the European Union where following the entry into force of the Brussels IIa Regulation there is now an obligation that abductions cases be dealt with in a six week time frame, the European Commission has suggested that to guarantee compliance return orders might be enforced pending appeal, see Practice Guide for the application of Council Regulation (EC) No 2201/2003.