CASE

Download full text DE

Case Name

7Ob72/98h, Oberster Gerichtshof

INCADAT reference

HC/E/AT 383

Court

Country

AUSTRIA

Name

Oberster Gerichtshof

Level

Superior Appellate Court

States involved

Requesting State

FRANCE

Requested State

AUSTRIA

Decision

Date

15 April 1998

Status

Final

Grounds

Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3

Order

-

HC article(s) Considered

1 3 5 12 14 17

HC article(s) Relied Upon

1 12 14

Other provisions

-

Authorities | Cases referred to

-

INCADAT comment

Article 12 Return Mechanism

Rights of Custody
Autonomous Interpretation of 'Rights of Custody' And 'Wrongfulness'

SUMMARY

Summary available in EN | FR | ES

Facts

The three children, two girls and one boy, were 2, 4 and 5 years old, at the date of the alleged wrongful retention. The parents were married and the family lived in France. In the summer of 1997 the family travelled to Austria for a holiday. The father was arrested during the holiday following accusations by the mother that he had threatened her with violence.

On 14 August 1997 the District Court of Gmunden granted interim custody to the mother. On the same day the father was acquitted of the charges by the criminal court and returned, without the children, to France. On 1 September the father lodged an application for the return of the children. On 8 October the District Court of Gmunden held that the retention of the children by their mother was wrongful and ordered their return to France.

The mother appealed. The Appellate Court allowed the appeal and refused to order the return of the child upon learning that the competent French court (Tribunal de Grande Instance de Narbonne) had decided on 7 October that the children should remain with their mother in Austria. The father appealed to the Supreme Court (Oberster Gerichtshof).

Ruling

Challenge to legality dismissed; while the return proceedings were pending, the authorities in the children's State of habitual residence had granted the mother custody.

Grounds

Removal and Retention - Arts 3 and 12

The question whether or not a retention is wrongful shall be determined in accordance with the law of the country in which the children are habitually resident at the time of the retention. In the instant case, the retention was wrongful but before the Austrian court of first instance had reached a decision, the competent French court decided that the children should remain with their mother in Austria. The Austrian court ruled that the decision of the competent court of the country in which the children are habitually resident also determines the question of whether or not the retention is still wrongful at the moment of the decision made in the requested State.

Rights of Custody - Art. 3

The father possessed a right of custody. However his right was subsequently restricted following the retention of the children by the decision of the competent French court which ordered that the children should remain with their mother in Austria.

INCADAT comment

Autonomous Interpretation of 'Rights of Custody' And 'Wrongfulness'

Conflicts have on occasion emerged between courts in different Contracting States as to the outcomes in individual cases.  This has primarily been with regard to the interpretation of custody rights or the separate, but related issue of the ‘wrongfulness' of a removal or retention.

Conflict Based on Scope of ‘Rights of Custody'

Whilst the overwhelming majority of Contracting States have accepted a uniform interpretation of rights of custody for the purposes of the Convention, some differences do exist.A

For example: in New Zealand a very broad view prevails - Gross v. Boda [1995] 1 NZLR 569 [INCADAT cite: HC/E/NZ 66].  But in parts of the United States of America a narrow view is favoured - Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313].

Consequently where a return petition involves either of these States a conflict may arise with the other Contracting State as to whether a right of custody does or does not exist and therefore whether the removal or retention is wrongful.

New Zealand / United Kingdom - England & Wales
Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT cite: HC/E/UKe 809].

A positive determination of wrongfulness by the courts in the child's State of habitual residence in New Zealand was rejected by the English Court of Appeal which found the applicant father to have no rights of custody for the purposes of the Convention.

United Kingdom  - Scotland / United States of America (Virginia)
Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494].

For the purposes of Scots law the removal of the child was in breach of actually exercised rights of custody.  This view was however rejected by the US Court of Appeals for the 4th Circuit.

United States of America / United Kingdom - England & Wales
Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591].

Making a return order the English Court of Appeal held that the rights given to the father by the New York custody order were rights of custody for Convention purposes, whether or not New York state or federal law so regarded them whether for domestic purposes or Convention purposes.

Conflict Based on Interpretation of ‘Wrongfulness'

United Kingdom - England & Wales
The Court of Appeal has traditionally held the view that the issue of wrongfulness is a matter for law of the forum, regardless of the law of the child's State of habitual residence.

Re F. (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224 [INCADAT cite: HC/E/UKe 8].

Whilst the respondent parent had the right under Colorado law to remove their child out of the jurisdiction unilaterally the removal was nevertheless regarded as being wrongful by the English Court of Appeal.

Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591];

Hunter v. Murrow [2005] EWCA Civ 976, [2005] 2 F.L.R. 1119 [INCADAT cite: HC/E/UKe 809].

In the most extreme example this reasoning was applied notwithstanding an Article 15 declaration to the contrary, see:

Deak v. Deak [2006] EWCA Civ 830 [INCADAT cite: HC/E/UKe 866].

However, this finding was overturned by the House of Lords which unanimously held that where an Article 15 declaration is sought the ruling of the foreign court as to the content of the rights held by the applicant must be treated as conclusive, save in exceptional cases where, for example, the ruling has been obtained by fraud or in breach of the rules of natural justice:

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 A.C. 619, [INCADAT cite: HC/E/UKe 880].

Elsewhere there has been an express or implied preference for the general application of the law of the child's State of habitual residence to the issue of wrongfulness, see:

Australia
S. Hanbury-Brown and R. Hanbury-Brown v. Director General of Community Services (Central Authority) (1996) FLC 92-671, [INCADAT cite: HC/E/AU 69];

Austria
3Ob89/05t, Oberster Gerichtshof, 11/05/2005 [INCADAT cite: HC/E/AT 855];

6Ob183/97y, Oberster Gerichtshof, 19/06/1997 [INCADAT cite: HC/E/AT 557];

Canada
Droit de la famille 2675, Cour supérieure de Québec, 22 April 1997, No 200-04-003138-979[INCADAT cite : HC/E/CA 666];

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

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

United States of America
Carrascosa v. McGuire, 520 F.3d 249 (3rd Cir. 2008), [INCADAT cite: HC/E/USf 970].

The United States Court of Appeals for the 3rd Circuit refused to recognize a Spanish non-return order, finding that the Spanish courts had applied their own law rather than the law of New Jersey in assessing whether the applicant father held rights of custody.

The European Court of Human Rights (ECrtHR)
The ECrtHR has been prepared to intervene where interpretation of rights of custody has been misapplied:

Monory v. Hungary & Romania, (2005) 41 E.H.R.R. 37, [INCADAT cite: HC/E/ 802].

In Monory the ECrtHR found that there had been a breach of the right to family life in Article 8 of the European Convention on Human Rights (ECHR) where the Romanian courts had so misinterpreted Article 3 of the Hague Convention that the guarantees of the latter instrument itself were violated.