CASE

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Case Name

Walker v. Walker, 701 F.3d 1110 (7th Cir. 2012)

INCADAT reference

HC/E/US 1182

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States Court of Appeals for the Seventh Circuit

Level

Appellate Court

Judge(s)
Bauer, Posner, Wood (Circuit Judges)

States involved

Requesting State

AUSTRALIA

Requested State

UNITED STATES OF AMERICA

Decision

Date

16 November 2012

Status

-

Grounds

Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Consent - Art. 13(1)(a) | Jurisdiction Issues - Art. 16 | Procedural Matters

Order

-

HC article(s) Considered

3 13(1)(a) 17

HC article(s) Relied Upon

3 13(1)(a) 17

Other provisions
International Child Abduction Remedies Act, 42 U.S.C. § 11603; Fed. R. Evid. 408
Authorities | Cases referred to
Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011); Navani v. Shahani, 496 F.3d 1121 (10th Cir. 2007); Yang v. Tsui, 416 F.3d 199 (3d Cir. 2005); Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003); Holder v. Holder, 305 F.3d 854 (9th Cir. 2002); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006); Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996); Koch v. Koch, 450 F.3d 703 (7th Cir. 2006); Bader v. Kramer, 484 F.3d 666 (4th Cir. 2007); Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005); Habrzyk v. Habrzyk, 759 F. Supp. 2d 1014 (N.D. Ill. 2011); In re Polson, 578 F. Supp. 2d 1064 (S.D. Ill. 2008); Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012); Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012).

INCADAT comment

Aims & Scope of the Convention

Removal & Retention
Commencement of Removal / Retention
Habitual Residence
Habitual Residence
Relocations
Jurisdiction Issues under the Hague Convention
Jurisdiction Issues under the Hague Convention

Article 12 Return Mechanism

Rights of Custody
Actual Exercise

Exceptions to Return

Consent
Establishing Consent

SUMMARY

Summary available in EN

Facts

The proceedings related to three children born to an Australian father and an American mother. The parents had married in Chicago in 1993 and remained in the United States of America until 1998, whereupon they relocated to Australia with their first child. The two younger children were born in Australia in 1999 and 2001.

In June 2010, the family travelled to the United States of America. The parents expected that mother and children would remain in the United States for between 6 to 12 months (there were fixed plans to return by June 2011). However, their views of the underlying reason for the move differed; the father's view was that mother and children would live with the maternal grandparents whilst the family home in Australia was being rebuilt; for the mother the move was a prelude to a permanent relocation.

The father returned to Australia in late July 2010. In November 2010, the mother filed for divorce in the United States of America. The father, through his lawyer, offered to settle the divorce out of court. On a without prejudice basis, he made a time limited offer (letter of 21 January 2011) which included, inter alia, the children remaining with the mother in the United States of America.

The offer explicitly referred to the 1980 Hague Child Abduction Convention. The offer was not accepted, though the Court found that the mother treated it as giving her permission to stay in the United States of America. The father subsequently issued return proceedings under the 1980 Hague Child Abduction Convention.

The return petition was denied by the United States District Court for the Northern District of Illinois, Eastern Division: Walker v. Walker, 2011 U.S. Dist. LEXIS 121371 (N.D. Ill., Oct. 20, 2011). The father appealed.

Ruling

Appeal allowed and case remitted to the District Court; the trial court had erred in its conclusions on habitual residence, actual exercise of custody rights and consent.

Grounds

Habitual Residence - Art. 3


The Court of Appeals reiterated its established standard for determining habitual residence, namely asking "whether a prior place of residence . . . was effectively abandoned and a new residence established . . . 'by the shared actions and intent of the parents coupled with the passage of time'," (see Koch v. Koch, 450 F.3d 703 (7th Cir. 2006) [INCADAT Reference: HC/E/USf 878] and Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011) [INCADAT Reference: HC/E/USf 1138]).

The District Court had found that the children's habitual residence had become the United States of America by 21 January 2011, at the latest. In considering the parties' intentions, the District Court had focused on the mother's testimony that she and the father looked at real estate when they arrived in 2010, talked about the housing market and had met with an agent.

The Court of Appeals found that whilst the mother's testimony might have shown that the couple had been considering relocating to the United States, this was a perilously thin basis for inferring that the 2010 trip was intended to be the start of a permanent move. Moreover, it noted that other uncontroverted evidence undermined this inference; the bulk of the family's possessions remained in Australia; the family home was being rebuilt in Australia; and the mother herself had stated that she did not make up her mind to remain in the United States of America until she had received the January 21 letter.

The Court of Appeals concluded that the evidence that the parents mutually intended to abandon Australia and take up residence in the United States of America was too contradictory to support the District Court's habitual residence finding.

Furthermore the children had not been in the United States of America long enough prior to the filing of the return petition so that their lives could have become firmly embedded there as to make them habitually resident, regardless of their parents' lack of mutual intent to establish a habitual residence there.

Removal and Retention - Arts 3 and 12


The Court of Appeals found that the retention of the children began on 21 January 2011 when the father sent the settlement letter to the mother (or at the latest several weeks thereafter). 21 January was the date on which the father was deemed to have first unequivocally signalled his opposition to the children's presence in the United States of America. The District Court had identified the relevant date as 4 May 2011, the date on which the father had filed his return petition.

Rights of Custody - Art. 3 
Actual Exercise:
The Court of Appeals noted that the prevailing standard for the actual exercise of custody rights was a liberal one and that it had previously been stated that acts of clear and unequivocal abandonment of a child would be required to show such rights were not being exercised, see Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996, [INCADAT Reference: HC/E/USf 82].

The Court rejected the District Court's finding that the father had abandoned his children. The Court held, inter alia, that the father's lack of financial support after 21 January 2011 was not sufficient. It noted that non-exercise was to be evaluated at the time of the retention and failure to provide support after the retention was irrelevant to whether he was exercising his custody rights when the wrongful retention began.

It added that no authority had been produced in which a court had found abandonment based on a lack of financial support. The Court concluded that it would be wary of allowing the presence or absence of financial support to factor too prominently in the analysis of the exercise of custody rights at the time of the removal or retention.

Rights of Custody - Art. 3

-

Consent - Art. 13(1)(a)


The Court of Appeals rejected the District Court's assessment of consent. It held that the 21 January letter could not be read as an expression of consent, rather it was an opening offer, which conceded nothing and which was rendered null by the parties' failure to come to an agreement.

Jurisdiction Issues - Art. 16


The mother had made a preliminary submission that the case was rendered moot by an Illinois state-court judgment awarding her sole custody of the children. The Court of Appeals noted that this submission was mistaken given the terms of Art. 17 of the 1980 Hague Child Abduction Convention which provides that: "[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention." The Court added that were the case to be considered moot it "would encourage the very sort of jurisdictional gerrymandering the Convention was designed to prevent."

Procedural Matters

The Court of Appeals considered whether the District Court had been correct to admit the father's letter of settlement as evidence. It held that under Federal Rule of Evidence 408 the letter should have been excluded, noting that the admission of letters of settlement would deter left behind parents from making such offers.

Author of the summary: Peter McEleavy

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.

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

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

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.

Relocations

Where there is clear evidence of an intention to commence a new life in another State then the existing habitual residence will be lost and a new one acquired.

In common law jurisdictions it is accepted that acquisition may be able to occur within a short period of time, see:

Canada
DeHaan v. Gracia [2004] AJ No.94 (QL), [2004] ABQD 4, [INCADAT cite: HC/E/CA 576];

United Kingdom - England & Wales
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 [INCADAT cite: HC/E/UKe 2];

Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548, [INCADAT cite: HC/E/UKe 40].

In civil law jurisdictions it has been held that a new habitual residence may be acquired immediately, see:

Switzerland
Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 15 novembre 2005, 5P.367/2005 /ast, [INCADAT cite : HC/E/CH 841].

Conditional Relocations 

Where parental agreement as regards relocation is conditional on a future event, should an existing habitual residence be lost immediately upon leaving that country? 

Australia
The Full Court of the Family Court of Australia answered this question in the negative and further held that loss may not even follow from the fulfilment of the condition if the parent who aspires to relocate does not clearly commit to the relocation at that time, see:

Kilah & Director-General, Department of Community Services [2008] FamCAFC 81, [INCADAT cite: HC/E/AU 995].

However, this ruling was overturned on appeal by the High Court of Australia, which held that an existing habitual residence would be lost if the purpose had a sufficient degree of continuity to be described as settled.  There did not need to be a settled intention to take up ‘long term' residence:

L.K. v. Director-General Department of Community Services [2009] HCA 9, (2009) 253 ALR 202, [INCADAT cite: HC/E/AU 1012].

Jurisdiction Issues under the Hague Convention

Jurisdiction Issues under the Hague Convention (Art. 16)

Given the aim of the Convention to secure the prompt return of abducted children to their State of habitual residence to allow for substantive proceedings to be convened, it is essential that custody proceedings not be initiated in the State of refuge. To this end Article 16 provides that:

"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."

Contracting States which are also party to the 1996 Hague Convention are provided greater protection by virtue of Article 7 of that instrument.

Contracting States which are Member States of the European Union and to which the Council Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels II a Regulation) applies are provided further protection still by virtue of Article 10 of that instrument.

The importance of Article 16 has been noted by the European Court of Human Rights:

Iosub Caras v. Romania, Application No. 7198/04, (2008) 47 E.H.R.R. 35, [INCADAT cite: HC/E/ 867];
 
Carlson v. Switzerland no. 49492/06, 8 November 2008, [INCADAT cite: HC/E/ 999].

When should Article 16 be applied?

The High Court in England & Wales has held that courts and lawyers must be pro-active where there is an indication that a wrongful removal or retention has occurred.

R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].
 
When a court becomes aware, expressly or by inference that there has been a wrongful removal or retention it receives notice of that wrongful removal or retention within the meaning of Article 16. Moreover, it is the duty of the court to consider taking steps to secure that the parent in that State is informed of his or her Convention rights. 

Re H. (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294, [INCADAT cite: HC/E/UKe 478]

Lawyers, even those acting for abducting parents, had a duty to draw the attention of the court to the Convention where this was relevant.

Scope and Duration of Article 16 Protection?

Article 16 does not prevent provisional and protective measures from being taken:

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

However, in this case the provisional measures ultimately became final and the return was never enforced, due to a change in circumstances.

A return application must be made within a reasonable period of time:

France
Cass Civ 1ère 9 juillet 2008 (N° de pourvois K 06-22090 & M 06-22091), 9.7.2008, [INCADAT cite : HC/E/FR 749]

United Kingdom - England & Wales
R. v. R. (Residence Order: Child Abduction) [1995] Fam 209, [INCADAT cite: HC/E/UKe 120].

A return order which has become final but has not yet been enforced is covered by Article 16:

Germany
Bundesgerichtshof, XII. Zivilsenat Decision of 16 August 2000 - XII ZB 210/99, BGHZ 145, 97 16 August 2000 [INCADAT cite: HC/E/DE 467].

Article 16 will no longer apply when a return order cannot be enforced:

Switzerland
5P.477/2000/ZBE/bnm, [INCADAT cite : HC/E/CH 785].

Actual Exercise

Courts in a variety of Contracting States have afforded a wide interpretation to what amounts to the actual exercise of rights of custody, see:

Australia
Director General, Department of Community Services Central Authority v. J.C. and J.C. and T.C. (1996) FLC 92-717 [INCADAT cite: HC/E/AU 68];

Austria
8Ob121/03g, Oberster Gerichtshof, 30/10/2003 [INCADAT cite: HC/E/AT 548];

Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003 [INCADAT cite: HC/E/BE 545];

United Kingdom - England & Wales
Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37];

France
Ministère Public c. M.B. Cour d'Appel at Aix en Provence (6e Ch.) 23 March 1989, 79 Rev. crit. 1990, 529 note Y. Lequette [INCADAT cite: HC/E/FR 62];

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

CA Aix en Provence 8/10/2002, L. v. Ministère Public, Mme B et Mesdemoiselles L (N° de rôle 02/14917) [INCADAT cite: HC/E/FR 509];

Germany
11 UF 121/03, Oberlandesgericht Hamm, [INCADAT cite: HC/E/DE 822];

21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491];

New Zealand
The Chief Executive of the Department for Courts for R. v. P., 20 September 1999, Court of Appeal of New Zealand [INCADAT cite: HC/E/NZ 304];

United Kingdom - Scotland
O. v. O. 2002 SC 430 [INCADAT cite: HC/E/UKs 507].

In the above case the Court of Session stated that it might be going too far to suggest, as the United States Court of Appeals for the Sixth Circuit had done in Friedrich v Friedrich that only clear and unequivocal acts of abandonment might constitute failure to exercise custody rights. However, Friedrich was fully approved of in a later Court of Session judgment, see:

S. v S., 2003 SLT 344 [INCADAT cite: HC/E/UKs 577].

This interpretation was confirmed by the Inner House of the Court of Session (appellate court) in:

AJ. V. FJ. 2005 CSIH 36, 2005 1 S.C. 428 [INCADAT cite: HC/E/UKs 803].

Switzerland
K. v. K., Tribunal cantonal de Horgen [INCADAT cite: HC/E/CZ 299];

449/III/97/bufr/mour, Cour d'appel du canton de Berne, [INCADAT cite: HC/E/CH 433];

5A_479/2007/frs, Tribunal fédéral, IIè cour civile, [INCADAT cite: HC/E/CH 953];

United States of America
Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir) [INCADAT cite: HC/E/USf 82];

Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004), [INCADAT cite: HC/E/USf 779];

Abbott v. Abbott, 130 S. Ct. 1983 (2010), [INCADAT cite: HC/E/USf 1029].

See generally Beaumont P.R. and McEleavy P.E., 'The Hague Convention on International Child Abduction' OUP, Oxford, 1999 at p. 84 et seq.

Establishing Consent

Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.

United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:

Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37].

This strict view has not been repeated in later first instance English cases, see:

Re C. (Abduction: Consent) [1996] 1 FLR 414 [INCADAT cite: HC/E/UKe 53];

Re K. (Abduction: Consent) [1997] 2 FLR 212 [INCADAT cite: HC/E/UKe 55].

In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing.  Moreover, there could also be cases where consent could be inferred from conduct.

Germany
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].

Convincing evidence is required to establish consent.

Ireland
R. v. R. [2006] IESC 7; [INCADAT cite: HC/E/IE 817].

The Re K. approach was specifically endorsed by the Irish Supreme Court.

The Netherlands
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].

Consent need not be for a permanent stay.  The only issue is that there must be consent and that it has been proved convincingly.

South Africa
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].

Consent could be express or tacit.

Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];

5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];

5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];

The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child.  To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.

United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].

There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.