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Nouvelle rechercheAFFAIRE
Nom de l'affaire
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles, 27/5/2003
Référence INCADAT
HC/E/BE 546
Juridiction
Belgique
Tribunal de première instance de Bruxelles (Belgique)
Première instance
États concernés
Italie
Belgique
Décision
27 May 2003
Inconnu
Opposition de l'enfant au retour - art. 13(2)
Retour refusé
-
-
INCADAT commentaire
Exceptions au retour
Nature et force de l'opposition
Exercice d'un pouvoir discrétionnaire
RÉSUMÉ
Résumé disponible en
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FR
Facts
On 21 June 2001, the father took the child to Belgium (where he had been residing since at least 1998). The reasons and circumstances of this removal were disputed. According to the mother, the child's stay was only to have been a short one (in order for him to attend the wedding of someone in the father's family), whereas the father alleged that the mother had asked him to be the primary caretaker of the child. On 25 July 2001, the mother asked for the child to be returned.
On 6 March 2003, the Court deemed the request admissible and dismissed the exceptions raised by the father relating to ineffectual exercise of the custody and the mother's consent to the retention. The question of the child's objections to return remained open while waiting to hear the child. The child was heard by the Judge on 13 March 2003.
Ruling
Grounds
Objections of the Child to a Return - Art. 13(2)
The Court noted that the child was almost 13 years old at the time of the hearing and pointed out that it would have to be checked whether: 1. The child had sufficient age and maturity for his opinion to be taken into account; 2. The opposition expressed by the child was sufficient in the light of the Convention. Regarding the age and the maturity of the child, the Judge considered that there was nothing in the official report of the child’s interview that presumes that he did not have the necessary objectivity to give a balanced and enlightened opinion. Although the child was not very talkative, he nevertheless gave specific, nuanced replies, so that it could be seen that he understood the meaning and scope of the questions. The Court concluded that the child had indeed reached an age and maturity where it became appropriate to take such opinion into account. As regards the child’s opposition, the applicant, referring to decisions rendered in Australia, England, the United States of America and New Zealand, stressed that the child’s opposition had to be clearly independent, sufficiently deep and evidenced. The Court discussed two of them and considered that if the exceptions referred to in the Convention had by nature to be construed restrictively, it was out of the question to add conditions to those provided by the Convention. It added that the child had expressed a categorical refusal to return to Italy since he felt at home in Belgium, which was not the case in Italy where he didn’t have any friends and felt abandoned by his mother. The child had also excluded any final return to his country of origin. The Judge considered that the opposition was not the expression of a simple preference to be looked after by one parent rather than another, but was the demonstration of a detailed opinion comparing what he had known in Italy and what he was experiencing in Belgium. The Court pointed out that it was not only facts that were in question, but also feelings: it was true that the child had not been completely abandoned by his mother, but that was what he felt. The Court admitted that it was illusory to think that a child could be completely impermeable to what the parent he was living with was experiencing, thinking or saying, especially if he liked it there. This is not, however, to say that the parent automatically influences a child’s opinion when it agrees with the parent’s. Considering the child’s hearing, the Judge considered that it did not appear that the child had been directed or manipulated by the father. On the contrary, he had explained simply and clearly the reasons for his refusal, reasons above all linked to his feeling of abandonment. He had even pointed out that he would not have felt abandoned if his mother lived in Belgium, in which case there would have been no problem of the care of the child being shared between his father and mother. The Court concluded that the exception of Article 13 (2) was applicable and dismissed the request.
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).
Exercise of Discretion
Where it is established that a child objects to a return and he is of sufficient age and maturity at which it is appropriate to take his views into account, then the Court seised of the case will have a discretion whether or not to make a return order.
Different approaches have been espoused as to the manner in which this discretion should be exercised and the relevant factors that should be taken into consideration.
Australia
Richards & Director-General, Department of Child Safety [2007] FamCA 65 [INCADAT cite: HC/E/AU 904]
The appellate court found that the trial judge had erred in ruling that there had to be 'clear and compelling' reasons to frustrate the objectives of the Convention. The Court recalled that there were permitted exceptions to a mandatory return and where established these exceptions gave rise to a discretion. The relevant factors in the exercise of that discretion would vary according to each case, but would include giving significant weight to the objectives of the Convention in appropriate cases.
United Kingdom - England & Wales
The exercise of the discretion has caused difficulty for the Court of Appeal, in particular the factors to be considered and the weight to be accorded to them.
In the first key case:
Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKe 87]
The Court of Appeal held that a court's discretion to refuse the immediate return of a child must be exercised with regard to the overall approach of the Convention, i.e. a child's best interests are furthered by a prompt return, unless there are exceptional circumstances for ordering otherwise.
In Re R. (Child Abduction: Acquiescence) [1995] 1 FLR 716 [INCADAT cite: HC/E/UKe 60] contrasting views were put forward by two members of the panel.
Balcombe L.J., who was content for there to be a relatively flexible approach to the gateway findings of age and objection, held that the weight to be given to objections would vary with the age of the child, but the policy of the Convention would always be a very weighty factor.
Millet L.J., who advocated a stricter interpretation of the gateway filters, held that if it was appropriate to consider the views of a child then those views should prevail unless there were countervailing factors, which would include the policy of the Convention.
The third member of the panel gave his support to the interpretation of Balcombe L.J.
In Re T. (Abduction: Child's Objections to Return) [2000] 2 FCR 159 [INCADAT cite: HC/E/UKe 270] Ward L.J. took up the interpretation of Millett L.J.
The reasoning of Re. T. was implicitly accepted by a differently constituted Court of Appeal in:
Re J. (Abduction: Child's Objections to Return) [2004] EWCA CIV 428, [2004] 2 FLR 64 [INCADAT cite: HC/E/UKe 579].
However, it was rejected in Zaffino v. Zaffino (Abduction: Children's Views) [2005] EWCA Civ 1012; [2006] 1 FLR 410 [INCADAT cite: HC/E/UKe 813].
The correct approach to the exercise of judicial discretion in England is now clearly that advanced by Balcombe L.J.
In Zaffino v. Zaffino the Court also held that regard could be paid to welfare considerations in the exercise of the discretion. In that case, welfare considerations militated in favour of a return.
In Vigreux v. Michel [2006] EWCA Civ 630, [2006] 2 FLR 1180 [INCADAT cite: HC/E/UKe 829] the Court of Appeal considered how discretion should be exercised in a case governed by the Brussels II a Regulation. It held that the aims and policy of the Regulation had to be considered in addition to the policy of the Convention.
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] the Court gave a general consideration to welfare considerations in deciding not to order the return of the 8 year old girl concerned.
The Court also appeared to accept an obiter comment raised in Vigreux v. Michel that there had to be an ‘exceptional' dimension to a case before a Court might consider exercising its discretion against a return order.
Exceptionality was raised in Nyachowe v. Fielder [2007] EWCA Civ 1129, [INCADAT cite: HC/E/UKe 964]. There a return order was made notwithstanding the strong objections of an independent 12 year old. Particular emphasis was placed on the fact that the girl had come for a 2 week vacation.
In Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 [INCADAT cite: HC/E/UKe 937] the House of Lords affirmed that it was wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which a return may be refused were themselves exceptions to the general rule. That in itself was sufficient exceptionality. It was neither necessary nor desirable to import an additional gloss into the Convention.
Baroness Hale continued that where a discretion arose from the terms of the Convention itself, the discretion was at large. In Article 13(2) cases the court would have to consider the nature and strength of the child's objections, the extent to which they were authentically the child's own or the product of the influence of the abducting parent, the extent to which they coincided or were at odds with other considerations which were relevant to the child's welfare, as well as general Convention considerations. The older the child, the greater the weight that objections would likely carry.
New Zealand
The Balcombe / Millett interpretations gave rise to contrasting High Court judgments. The Court of Appeal however voiced its preference for the Balcombe ‘shades of grey' approach in:
White v. Northumberland [2006] NZFLR 1105 [INCADAT cite: HC/E/NZ 902].
United Kingdom - Scotland
P. v. S., 2002 FamLR 2 [INCADAT cite: HC/E/UKs 963]
When exercising his discretion to make a return order, the trial judge noted that a return order should not be refused unless there were sound reasons for not giving effect to the objects of the Convention. This was upheld on appeal. The Inner House of the Court of Session further held that the existence of the Article 13 exceptions did not negate or eliminate the general policy of the Convention that wrongfully removed children should be returned.
Singh v. Singh 1998 SC 68 [INCADAT cite: HC/E/UKs 197]
The Court held that the welfare of the child was a general factor which should be taken into account in the exercise of discretion. A court should not limit itself to a consideration of the child's objection and the reasons for it. Nevertheless, the court held that a rule could not be laid down as to whether a child's welfare should be considered broadly or in detail; this was a matter within the discretion of the court concerned.
In W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805] the Inner House held that a balancing exercise had to be carried out, and one of the factors in favour of return was the spirit and purpose of the Convention to allow the court of habitual residence to resolve the custody dispute.
United States of America
De Silva v. Pitts, 481 F.3d 1279, (10th Cir. 2007), [INCADAT cite: HC/E/USf 903].
In upholding the views of a 14 year old boy the Court of Appeals for the 10th Circuit paid regard to his best interests but not to the policy of the Convention.
France
An appellate court 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:
CA Bordeaux, 19 janvier 2007, No 06/002739 [INCADAT cite: HC/E/FR 947].