CASE

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Case Name

Silverman v. Silverman, 267 F.3d 788 (8th Cir. 2001)

INCADAT reference

HC/E/USf 412

Court

Country

UNITED STATES - FEDERAL JURISDICTION

Name

United States Court of Appeals for the Eighth Circuit

Level

Appellate Court

Judge(s)
Murphy, Heaney, and Beam C.JJ.

States involved

Requesting State

ISRAEL

Requested State

UNITED STATES - FEDERAL JURISDICTION

Decision

Date

13 June 2001

Status

-

Grounds

Procedural Matters

Order

-

HC article(s) Considered

-

HC article(s) Relied Upon

-

Other provisions
US
Authorities | Cases referred to

-

INCADAT comment

Aims & Scope of the Convention

Jurisdiction Issues under the Hague Convention
Jurisdiction Issues under the Hague Convention

SUMMARY

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Facts

The children were 8 and 5 at the date of the alleged wrongful retention. The parents were married and the family had lived together in the United States until August 1999 when they moved to Israel. The family stayed there for 10 months when the mother took the children back to the United States for a 2 month vacation. However in August 2000 the mother informed the father that she would not be returning and she commenced divorce and custody proceedings in a Minnesota state court.

The father immediately contacted the United States Central Authority, the National Center for Missing and Exploited Children, and on 5 October his return application was filed in the United States District Court for the District of Minnesota, a federal court.

On 10 October the father filed a motion in the Minnesota state court seeking the dismissal or a stay of the custody proceedings. This was refused. On 17 October the state court granted the mother temporary custody and found that the move to Israel had only been a temporary absence and that Minnesota was the children's home state.

The mother then issued an application in the federal court to have the father's return petition dismissed. She argued that there were on-going state court proceedings, the state had a significant interest in matters of child custody, and the father had the opportunity to present the Hague issue in the state court.

On 7 November the federal District Court granted the mother's motion and dismissed the return petition on the basis that the father had failed to show that the state courts would afford him adequate opportunity to litigate his petition under the Hague Convention.

The father appealed.

Ruling

Appeal allowed; case remitted to the District Court (federal jurisdiction) for a ruling to be made on the merits of the return application.

Grounds

Procedural Matters

The appellate court noted that the Supreme Court of the United States had formulated a number of abstention doctrines. In particular the ‘Younger’ abstention doctrine prohibits a federal court from interfering in pending state civil cases where (1) there is an on-going state proceeding (2) that implicates important state interests and (3) there is an adequate opportunity in the state proceeding to raise the federal issues. The father argued that the District Court’s ruling had denied him his right to select the forum in which to proceed with his petition, thereby permitting the mother to engage in the sort of forum shopping the Convention seeks to prevent. He further argued that the Hague Convention issues were only raised in the state court by way of support for his argument that the custody issue should not be addressed until the Hague issues had been resolved by the federal court. The appellate court ruled that there had been a fundamental defect in the District Court’s decision to dismiss the father’s return petition on abstention grounds. It noted that such action was only available where the relief sought was equitable or otherwise discretionary. This was not the case with the Convention which provides that a court which receives a valid return petition must determine whether the child has been wrongfully removed or retained. Consequently abstention principles do not permit the outright dismissal of a Hague petition. The court ruled that since the Hague issue had not been addressed the case should be remitted to the District Court.

INCADAT comment

The District Court changed with examining the merits dismissed the father's application, see: Silverman v. Silverman, 2002 U.S. Dist. LEXIS 8313 [INCADAT reference: HC/E/USf 481].

The father's appeal was rejected by a 2:1 verdict, see: Silverman v. Silverman 312 F.3d 914; 2002 U.S. App. [INCADAT reference: HC/E/USf 483].

For other United States decisions which have examined the interface of state and federal jurisdiction see: Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) [INCADAT reference: HC/E/USf 125] and Copeland v. Copeland, 134 F.3d 362 (4th Cir. Feb. 6, 1998) [INCADAT reference: HC/E/USf 239].

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].