Borgarting lagmannsrett (Borgarting Court of Appeal)
Mette D. Trovik, Anne Austbø, Anders Bøhn
UNITED STATES OF AMERICA
27 September 2012
Habitual Residence - Art. 3
1 child allegedly wrongfully retained at age 2 – National of Norway and USA – Married parents– Father national of USA – Mother national of Norway – Parents exercised joint rights of custody – Child lived in USA until 2010 – Application for return filed with the Central Authority of Norway in December 2011 –Return refused – Main issue: Article 3 – The father had consented to the change of habitual residence of the child
The case concerned a child with an American father (A) and a Norwegian mother (B). They had joint custody. The parents married in Norway in September 2007 before moving to the USA in November 2007. The son was born in the USA in 2009. In the autumn of 2010, the father, the mother and child travelled to Norway after it had become clear that the mother was unhappy in the USA and because difficulties had developed in the couple’s relationship. The father returned to the USA after a short while, but visited Norway once during the autumn. In the autumn of 2010, the child was allocated a daycare place in Norway, and the mother found a job. The relationship between the spouses deteriorated and, as a result, the mother and the child did not travel to the USA at Christmas 2010 as planned. In January 2011, the father applied for a divorce. In January 2011, the father travelled to Norway again, and wished to take his son back to the USA but the mother refused to allow this. In December 2011, the father applied for the return of the child to the USA under the Hague Convention. The case was heard by Oslo County Court, which in April 2012 concluded that the child should not be returned. The father appealed the case to Borgarting Court of Appeal.
The appeal was rejected by unanimous ruling, and return was refused. The court concluded that the father had consented to a permanent change of habitual residence, and that there was no unlawful retention. An appeal to the Supreme Court was rejected and the case was not heard because the Supreme Court unanimously deemed it clear that the appeal could not succeed.
Author: Bjarte Wivestad Engesland, Higher Executive Officer, Royal Norwegian Ministry of Justice and Public Security
It was undisputed that the child had been habitually resident in the USA before travelling to Norway and that the parents exercised rights of joint custody. The father accepted that consent had been given for the initial travel to Norway, but stated that this only related to a temporary stay. The mother maintained that the consent extended to a permanent move, and that consent had therefore been given to a change of habitual residence.
The court first concluded that, as a rule, “express consent” is required under section 11 of the Child Abduction Act, but that the case law of the Norwegian Supreme Court has established that no written agreement is required.
The court emphasised several factors that indicated consent to a change of habitual residence, including that the father helped to move a considerable proportion of the mother and child’s belongings to Norway, that he participated in the child’s induction at the Norwegian daycare centre and that he had formally notified a change of the child’s permanent habitual residence to the Norwegian authorities by signing a notice of change of address jointly with the mother.
The court particularly emphasised written correspondence between the parents before the dispute about consent arose. In the court’s view, the emails clearly indicated that the father had accepted a change of the child’s permanent habitual residence prior to departure.
The court concluded that the father had expressly consented to a change of permanent habitual residence when the child left the USA in 2010. Accordingly, the child’s permanent habitual residence was changed to Norway, and no unlawful retention had occurred. The court rejected the appeal and the child was not returned.