CASE

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Case Name

CA Dijon, 17 juin 2010, No de RG 10/00967

INCADAT reference

HC/E/FR 1133

Court

Country

FRANCE

Name

Cour d'appel de Dijon, chambre civile C

Level

Appellate Court

Judge(s)
Valtat (président); Plantier, Pertuisot (conseillers)

States involved

Requesting State

BELGIUM

Requested State

FRANCE

Decision

Date

17 June 2010

Status

Subject to appeal

Grounds

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Order

Appeal dismissed, return ordered

HC article(s) Considered

3 12 13(1)(b) 13(2)

HC article(s) Relied Upon

3 12 13(1)(b) 13(2)

Other provisions
Article 1210-5 of the French Code of Civil Procedure; Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003); United Nations Convention of the Rights of the Child of 20 November 1989
Authorities | Cases referred to

-

Published in

-

INCADAT comment

Aims & Scope of the Convention

Removal & Retention
Commencement of Removal / Retention

Exceptions to Return

Grave Risk of Harm
French Case Law
Child's Objection
Parental Influence on the Views of Children

SUMMARY

Summary available in EN | FR | ES

Facts

The case concerned a boy born in 2001. His parents divorced in Belgium in 2004. The child at that time lived mainly with his mother and his father had a right of access and accommodation during half the school holidays and every second week-end.

Starting in 2007, the mother expressed a wish to move to France, but her application for permission to move there with the child was denied in November 2008. She appealed against that decision but left Belgium with the child immediately in December 2008. The Court of Appeal eventually upheld the decision and granted the father custody of the child starting on 1 July 2009.

In the meantime the father had made an application for return. On 2 April 2010, the family judge at the Tribunal of Dijon ordered the child's return to Belgium. The mother appealed against that decision.

Ruling

Appeal dismissed, return ordered. The removal was wrongful and the exceptions inapplicable.

Grounds

Removal and Retention - Arts 3 and 12

According to the Court of Appeal, the mother had taken the child to France in disregard of the Belgian court rulings having ordered joint parental authority and set the child's principal residence with his mother. The removal to France had occurred in early December 2008.

The father had applied to the Belgian Central Authority on 10 August 2009, and as early as 21 August, the Public Prosecutor had obtained the mother's testimony at the Châlon sur Saône police station with a view to securing the child's voluntary return or facilitating an agreed solution.

Admittedly, the application to the Family Court had been made on 5 March 2010, but the Court of Appeal's view was that "it was in August 2009, i.e., less than a year after the wrongful removal, that the application had been made to the French judicial authority within the meaning of Article 12".

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

The Court of Appeal found that the "manifestly biased" attestations discovered by the mother were insufficient to prove the father's violent behaviour, which had been alleged by the mother only after the application for return in France.

It stressed that the purpose of the action was only restoration of a pre-existing situation and not the award of the child's residence to the father. On the contrary, the child's interests within the meaning of the New York Convention demanded an end to unlawful action whereby the child had been entirely cut off from his father who until then did exercise parental rights as determined by a court ruling.

Objections of the Child to a Return - Art. 13(2)

The Court of Appeal noted that the child unambiguously objected to his return to Belgium. It pointed out, however, that this child under the age of 10 had been subjected for 15 months "to the sole influence of his mother, who prevented any contact" with his father and did not abide by her undertaking to allow a temporary return to Belgium at Easter 2009". "Subjected to such a conditioning, so young a child" could not "have sufficient detachment and maturity for its objection to be taken into account."

Procedural Matters

The Court of Appeal stated that under Art. 1210-5 of the French Code of Civil Procedure, an application for return is to be tried and judged in summary proceedings, but it is nonetheless a ruling on the merits which is res judicata and may not be enforced on a provisional basis as of right.

Expenses
The Court of Appeal upheld the lower court's ruling that there were no expenses under Art. 26, but holding the mother liable to refund the father for any expenses to be incurred in the child's return.

Mediation
The mother applied for mediation. The Court of Appeal held that application to be pointless as it required consent by both parents. In addition, it was illusory since the attempt to obtain a voluntary return by the mother (who had made a commitment to the Police to return the child) had been ineffective. In the Court's view, "a further extension of the present situation could only make the necessary restoration of connections between the child and father even more difficult".

Author of summary: Aude Fiorini

INCADAT comment

Commencement of Removal / Retention

Primarily this will be a factual question for the court seised of the return petition. The issue may be of relevance where there is doubt as to whether the 12 month time limit referred to in Article 12(1) has elapsed, or indeed if there is uncertainty as to whether the alleged wrongful act has occurred before or after the entry into force of the Convention between the child's State of habitual residence and the State of refuge.

International Dimension

A legal issue which has arisen and been settled with little controversy in several States, is that as the Convention is only concerned with international protection for children from removal or retention and not with removal or retention within the State of their habitual residence, the removal or retention in question must of necessity be from the jurisdiction of the courts of the State of the child's habitual residence and not simply from the care of holder of custody rights.

Australia
Murray v. Director, Family Services (1993) FLC 92-416, [INCADAT cite: HC/E/AU 113]. 

State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567, [INCADAT cite: HC/E/AU 232];  Kay J. confirmed that time did not run, for the purposes of Art. 12, from the moment the child arrived in the State of refuge.

State Central Authority v. C.R. [2005] Fam CA 1050, [INCADAT cite: HC/E/AU 232];  Kay J. held that the precise determination of time had to be calculated in accordance with local time at the place where the wrongful removal had occurred.

United Kingdom - England & Wales
Re H.; Re S. (Abduction: Custody Rights) [1991] 2 AC 476, [1991] 3 All ER 230, [1991] 2 FLR 262, [INCADAT cite: HC/E/UKe 115].

United Kingdom - Scotland
Findlay v. Findlay 1994 SLT 709, [INCADAT cite: HC/E/UKs 184].

However in a very early Convention case Kilgour v. Kilgour 1987 SC 55, 1987 SLT 568, 1987 SCLR 344, [INCADAT cite: HC/E/UKs 116], the parties were at one in proceeding on the basis that the relevant removal for the purposes of the Convention was a removal in breach of custody rights rather than a removal from the country where the child previously lived. 

Agreement on the issue of the commencement of return was not reached in the Israeli case Family Application 000111/07 Ploni v. Almonit, [INCADAT cite:  HC/E/IL 938].  One judge accepted that the relevant date was the date of removal from the State of habitual residence, whilst the other who reached a view held that it was the date of arrival in Israel. 

Communication of Intention Not to Return a Child

Different positions have been adopted as to whether a retention will commence from the moment a person decides not to return a child, or whether the retention only commences from when the other custody holder learns of the intention not to return or that intention is specifically communicated.

United Kingdom - England & Wales
In Re S. (Minors) (Abduction: Wrongful Retention) [1994] Fam 70, [INCADAT cite: HC/E/UKe 117], the English High Court was prepared to accept that an uncommunicated decision by the abductor was of itself capable of constituting an act of wrongful retention.

Re A.Z. (A Minor) (Abduction: Acquiescence) [1993] 1 FLR 682, [INCADAT cite: HC/E/UKe 50]: the moment the mother unilaterally decided not to return the child was not the point in time at which the retention became wrongful. This was no more than an uncommunicated intention to retain the child in the future from which the mother could still have resiled.  The retention could have originated from the date of the aunt's ex parte application for residence and prohibited steps orders.

United States of America
Slagenweit v. Slagenweit, 841 F. Supp. 264 (N.D. Iowa 1993), [INCADAT cite: HC/E/USf 143].

The wrongful retention did not begin to run until the mother clearly communicated her desire to regain custody and asserted her parental right to have the child live with her.

Zuker v. Andrews, 2 F. Supp. 2d 134 (D. Mass. 1998) [INCADAT cite: HC/E/UKf 122], the United States District Court for the District of Massachusetts held that a retention occurs when, on an objective assessment, a dispossessed custodian learns that the child is not to be returned.

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006), [INCADAT cite: HC/E/USf 879].

The Court of Appeals held that ultimately it was not required to decide whether a child was not retained under the Convention until a parent unequivocally communicated his or her desire to regain custody, but it assumed that this standard applied.

French Case Law

The treatment of Article 13(1) b) by French courts has evolved, with a permissive approach being replaced by a more robust interpretation.

The judgments of France's highest jurisdiction, the Cour de cassation, from the mid to late 1990s, may be contrasted with more recent decisions of the same court and also with decisions of the court of appeal. See:

Cass. Civ. 1ère 12 juillet 1994, Rev. Crit. 84 (1995), p. 96 note H. Muir Watt ; JCP 1996 IV 64 note Bosse-Platière, Defrénois 1995, art. 36024, note J. Massip [INCADAT cite: HC/E/FR 103];

Cass. Civ. 1ère 21 novembre 1995 (Pourvoi N° 93-20140), [INCADAT cite: HC/E/FR 514];

Cass. Civ. 1ère 22 juin 1999, (N° de pourvoi : 98-17902), [INCADAT cite: HC/E/FR 498];

And contrast with:

Cass. Civ. 1ère 25 janvier 2005 (N° de pourvoi : 02-17411), [INCADAT cite: HC/E/FR 708];

Cass. Civ. 1ère 14 juin 2005 (N° de pourvoi : 04-16942), [INCADAT cite: HC/E/FR 844];

Cass. Civ 1ère 13 juillet 2005 (N° de pourvoi : 05-10519), [INCADAT cite: HC/E/FR 845];

CA. Amiens 4 mars 1998, n°5704759, [INCADAT cite: HC/E/FR 704];

CA. Grenoble 29 mars 2000 M. c. F., [INCADAT cite: HC/E/FR 274];

CA. Paris 7 février 2002 (N° de pourvoi : 2001/21768), [INCADAT cite: HC/E/FR 849];

CA. Paris, 20/09/2002 (N° de pourvoi : 2002/13730), [INCADAT cite: HC/E/FR 850];

CA. Aix en Provence 8 octobre 2002, L c. Ministère Public, Mme B. et Mesdemoiselles L. (N° de rôle 02/14917) [INCADAT cite: HC/E/FR 509];

CA. Paris 27 octobre 2005, 05/15032 [INCADAT cite: HC/E/FR 814];

Cass. Civ. 1ère 14 décembre 2005 (N° de pourvoi :05-12934) [INCADAT cite: HC/E/FR @889@];

Cass. Civ. 1ère 14 November 2006 (N° de pourvoi : 05-15692) [INCADAT cite: HC/E/FR @890@].

Recent examples where Article 13(1) b) has been upheld include:

Cass. Civ. 1ère 12 Décembre 2006 (N° de pourvoi : 05-22119) [INCADAT cite: HC/E/FR @891@];

Cass. Civ. 1ère 17 Octobre 2007 [INCADAT cite: HC/E/FR @946@]. 

The interpretation given by the Cour d'appel de Rouen in 2006, whilst obiter, does recall the more permissive approach to Article 13(1) b) favoured in the early 1990s, see:

CA. Rouen, 9 Mars 2006, N°05/04340 [INCADAT cite: HC/E/FR @897@].

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].