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Case Name
5P.454/2000/ZBE/bnm, Bundesgericht, II. Zivilabteilung ((Tribunal Fédéral, 2ème Chambre Civile)
INCADAT reference
HC/E/CH 786
Court
SWITZERLAND
Bundesgericht / Tribunal Federal
Superior Appellate Court
States involved
UNITED STATES OF AMERICA
SWITZERLAND
Decision
16 October 2001
Final
Procedural Matters
Application dismissed
Art. 14 Swiss Constitution, Art. 8 ECHR, Art. 12 UNCRC, Swiss procedural law
Entscheid des Bundesgerichtes vom 13. September 2001, E. 4b/aa [5P.160/2001; Bühler/Spühler, Berner Kommentar, N. 36 zu Art. 157 aZGB; Hegnauer, Berner Kommentar, N. 102 zu Art. 286 ZGB; Frank/Sträuli/Messmer, Kommentar zur zürcherischen Zivilprozessordnung, 3. Aufl., Zürich 1997, N. 5 zu § 293 ZPO; BGE 125 III 301 E. 2b/cc S. 304; BGE 119 Ia 11 E. 3a S. 12, 134 E. 4 S. 135.
INCADAT comment
Aims & Scope of the Convention
Jurisdiction Issues under the Hague Convention
Implementation & Application Issues
Enforcement of Return Orders
SUMMARY
Summary available in
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Facts
In September 1996 the judge in the canton of Zurich (Bezirksgericht) granted the mother exclusive interim custody. On 26 September the father commenced return proceedings. On 15 November the Zurich cantonal court dismissed the father's application.
On 6 March 1997 the Zurich court of appeal (Obergericht) ordered the return of the child within 10 days of the mother being notified of the decision. On 6 August the supreme court (Bundesgericht) dismissed a legal challenge filed by the mother. In October two attempts at executing the return order failed and the mother seised the Zurich cantonal court in an attempt to have the return order of 6 March 1997 struck out. On 19 December this application was dismissed.
On 25 April 1998 the court of cassation of the Zurich canton rejected an application to have the return order struck out. Several challenges to the supreme court were equally rejected. In May 1998 mother and child moved to Aargau. The father sought to have the return order executed in Aargau but an application to this effect was rejected by the local cantonal court.
On 26 March 2001 the court of appeal of the Aargau canton rejected the father's appeal finding that as the return order had been made 4 years earlier its execution could not be ordered without consideration of the best interests of the child, who was now aged 9. The court held that it did not matter that the mother's repeated legal challenges had led to the delays.
On 13 September 2001 the Swiss supreme court rejected a public law challenge by the father. On 16 October and 6 November 2000 the court of appeal for the Canton of Zurich had declared applications by the mother to revise the return order to be inadmissible. Challenges to these decisions were rejected by the cour de cassation of the Zurich Canton.
The mother then petitioned the Swiss supreme court for the order of 6 November to be retracted.
Ruling
Grounds
Procedural Matters
The mother alleged that the decision of 6 November 2000, which declared as inadmissible her challenge against the non-withdrawal of the return order, was contrary to her right to a family as provided for by Article 14 of the Swiss constitution (a right which mirrored the right to family life provided for in Art 8 of the ECHR). Her case was that the consequence of the decision of 6 November was that she was unable to obtain in her State of habitual residence a modification of the American custody order. Since she was habitually resident in Switzerland it should have been possible in her view, in accordance with Article 16 of the Hague Convention, to obtain in the country such a modification. The Court held that it had been decided on 13 September 2000 that the 1997 return order could not be enforced because this would be contrary to the best interests of the child, as provided for in Article 3 of the UNCRC 1989. It was for the judge who was territorially and materially competent to modify the 1997 order in order to adapt the order to the new situation. The fact that the Zurich court of appeal had considered the application for 'revision' to be inadmissible in the light of the procedural rules of the canton, did not stop the mother from obtaining a modification of the terms of the American custody order in Switzerland. There was no basis therefore on which the court of appeal had misapplied Article 14 of the Constitution or Article 8 of the ECHR. The Court also concluded that there had been no violation of Article 16 of the Convention or of the best interests of the child.
INCADAT comment
A summary of the decision of 6 August 1997 is available at: Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 6 août 1997 [INCADAT Reference: HC/E/CH 792].
A summary of the decision of 13 September 2001 is available at: Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 13 Septembre 2001, 5P.160/2001/min [INCADAT Reference: HC/E/CH 423].
A summary of the decision of the supreme court on the parallel legal challenge mounted by the child is available at: Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) Décision du 16 octobre 2001, 5P.477/2000/ZBE/bnm [INCADAT Reference: HC/E/CH 785].
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].
Enforcement of Return Orders
Where an abducting parent does not comply voluntarily the implementation of a return order will require coercive measures to be taken. The introduction of such measures may give rise to legal and practical difficulties for the applicant. Indeed, even where ultimately successful significant delays may result before the child's future can be adjudicated upon in the State of habitual residence. In some extreme cases the delays encountered may be of such length that it may no longer be appropriate for a return order to be made.
Work of the Hague Conference
Considerable attention has been paid to the issue of enforcement at the Special Commissions convened to review the operation of the Hague Convention.
In the Conclusions of the Fourth Review Special Commission in March 2001 it was noted:
"Methods and speed of enforcement
3.9 Delays in enforcement of return orders, or their non-enforcement, in certain Contracting States are matters of serious concern. The Special Commission calls upon Contracting States to enforce return orders promptly and effectively.
3.10 It should be made possible for courts, when making return orders, to include provisions to ensure that the order leads to the prompt and effective return of the child.
3.11 Efforts should be made by Central Authorities, or by other competent authorities, to track the outcome of return orders and to determine in each case whether enforcement is delayed or not achieved."
See: < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" and "Conclusions and Recommendations".
In preparation for the Fifth Review Special Commission in November 2006 the Permanent Bureau prepared a report entitled: "Enforcement of Orders Made Under the 1980 Convention - Towards Principles of Good Practice", Prel. Doc. No 7 of October 2006, (available on the Hague Conference website at < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" then "Preliminary Documents").
The 2006 Special Commission encouraged support for the principles of good practice set out in the report which will serve moreover as a future Guide to Good Practice on Enforcement Issues, see: < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" then "Conclusions and Recommendations" then "Special Commission of October-November 2006"
European Court of Human Rights (ECrtHR)
The ECrtHR has in recent years paid particular attention to the issue of the enforcement of return orders under the Hague Convention. On several occasions it has found Contracting States to the 1980 Hague Child Abduction Convention have failed in their positive obligations to take all the measures that could reasonably be expected to enforce a return order. This failure has in turn led to a breach of the applicant parent's right to respect for their family life, as guaranteed by Article 8 of the European Convention on Human Rights (ECHR), see:
Ignaccolo-Zenide v. Romania, No. 31679/96, (2001) 31 E.H.R.R. 7, [INCADAT cite: HC/E/ 336];
Sylvester v. Austria, Nos. 36812/97 and 40104/98, (2003) 37 E.H.R.R. 17, [INCADAT cite: HC/E/ 502];
H.N. v. Poland, No. 77710/01, (2005) 45 EHRR 1054, [INCADAT cite: HC/E/ 811];
Karadžic v. Croatia, No. 35030/04, (2005) 44 EHRR 896, [INCADAT cite: HC/E/ 819];
P.P. v. Poland, No. 8677/03, 8 January 2008, [INCADAT cite: HC/E/ 941].
The Court will have regard to the circumstances of the case and the action taken by the national authorities. A delay of 8 months between the delivery of a return order and enforcement was held not to have constituted a breach of the left behind parent's right to family life in:
Couderc v. Czech Republic, 31 January 2001, No. 54429/00, [INCADAT cite: HC/E/ 859].
The Court has dismissed challenges by parents who have argued that enforcement measures, including coercive steps, have interfered with their right to a family life, see:
Paradis v. Germany, 15 May 2003, No. 4783/03, [INCADAT cite: HC/E/ 860];
A.B. v. Poland, No. 33878/96, 20 November 2007, [INCADAT cite: HC/E/ 943];
Maumousseau and Washington v. France, No. 39388/05, 6 December 2007, [INCADAT cite: HC/E/ 942].
The positive obligation to act when faced with the enforcement of a custody order in a non-Hague Convention child abduction case was upheld in:
Bajrami v. Albania, 12 December 2006 [INCADAT cite: HC/E/ 898].
However, where an applicant parent has contributed to delay this will be a relevant consideration, see as regards the enforcement of a custody order following upon an abduction:
Ancel v. Turkey, No. 28514/04, 17 February 2009, [INCADAT cite: HC/E/ 1015].
Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights has held that the immediate enforcement of a return order whilst a final legal challenge was still pending did not breach Articles 8, 17, 19 or 25 of the American Convention on Human Rights (San José Pact), see:
Case 11.676, X et Z v. Argentina, 3 October 2000, Inter-American Commission on Human Rights Report n°71/00, [INCADAT cite: HC/E/ 772].
Case Law on Enforcement
The following are examples of cases where a return order was made but enforcement was resisted:
Belgium
Cour de cassation 30/10/2008, C.G. c. B.S., N° de rôle: C.06.0619.F, [INCADAT cite: HC/E/BE 750];
Canada
H.D. et N.C. c. H.F.C., Cour d'appel (Montréal), 15 mai 2000, N° 500-09-009601-006 (500-04-021679-007), [INCADAT cite: HC/E/CA 915];
Switzerland
427/01/1998, 49/III/97/bufr/mour, Cour d'appel du canton de Berne (Suisse); [INCADAT cite: HC/E/CH 433];
5P.160/2001/min, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile); [INCADAT cite: HC/E/CH 423];
5P.454/2000/ZBE/bnm, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile); [INCADAT cite: HC/E/CH 786];
5P.115/2006/bnm, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile); [INCADAT cite: HC/E/CH 840].
Enforcement may equally be rendered impossible because of the reaction of the children concerned, see:
United Kingdom - England & Wales
Re B. (Children) (Abduction: New Evidence) [2001] 2 FCR 531; [INCADAT cite: HC/E/UKe 420];
United Kingdom - Scotland
Cameron v. Cameron (No. 3) 1997 SCLR 192; [INCADAT cite: HC/E/UKs 112];
Spain
Auto Juzgado de Familia Nº 6 de Zaragoza (España), Expediente Nº 1233/95-B; [INCADAT cite: HC/E/ES 899].
Enforcement of Return Orders Pending Appeal
For examples of cases where return orders have been enforced notwithstanding an appeal being pending see:
Argentina
Case 11.676, X et Z v. Argentina, 3 October 2000, Inter-American Commission on Human Rights Report n° 11/00 [INCADAT cite: HC/E/ 772].
The Inter-American Commission on Human Rights has held that the immediate enforcement of a return order whilst a final legal challenge was still pending did not breach Articles 8, 17, 19 or 25 of the American Convention on Human Rights (San José Pact).
Spain
Sentencia nº 120/2002 (Sala Primera); Número de Registro 129/1999. Recurso de amparo [INCADAT cite: HC/E/ES 907];
United States of America
Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. Va., 2003) [INCADAT cite: HC/E/USf 494].
In Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) [INCADAT cite: HC/E/USf 461] while it is not clear whether the petition was lodged prior to the return being executed, the appeal was nevertheless allowed to proceed.
However, in Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001) [INCADAT cite: HC/E/USf 909] an appeal was not allowed to proceed once the child was returned to the State of habitual residence.
In the European Union where following the entry into force of the Brussels IIa Regulation there is now an obligation that abductions cases be dealt with in a six week time frame, the European Commission has suggested that to guarantee compliance return orders might be enforced pending appeal, see Practice Guide for the application of Council Regulation (EC) No 2201/2003.