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Case Name

Cass Civ 1ère (pourvoi n° 05-14646 )

INCADAT reference

HC/E/FR 853

Court

Country

FRANCE

Name

Cour de cassation

Level

Superior Appellate Court

Judge(s)
Ancel, Pdt.

States involved

Requesting State

CANADA

Requested State

FRANCE

Decision

INCADAT comment

Exceptions to Return

Child's Objection
Nature and Strength of Objection
Separate Representation
Extreme Reaction to a Return Order

SUMMARY

Summary available in EN | FR

Facts

The children, a boy and a girl, were aged 8 and 6 respectively at the date of the alleged wrongful retention. The parents were married and the family lived in Canada. On 27 August 2001 the mother unilaterally took the children to France. The Tribunal de Grande Instance de Privas ordered the return of the children.

On 20 July 2004 the Cour d'appel de Nîmes upheld this decision. The mother challenged the legality of the decision before the Cour de Cassation.

Ruling

Challenge dismissed; the Cour d'Appel had been correct in finding that none of the exceptions had been proved to the standard required under the Convention.

Grounds

Objections of the Child to a Return - Art. 13(2)

The mother criticised the finding of the cour d’appel that there was no grave risk of harm in returning the children to Canada when the children had declared that they did not wish to return because they did not want to be separated from her. They had also referred to having been struck by the father with spoons when they refused to sit at the dining table. The boy affirmed that his life would be finished if he had to return to Canada, whilst the girl stated that she was uncomfortable at having to share a bed and a bath with the father. The mother argued that the cour d’appel should have considered whether the objections of the children alone could have justified a non-return order being made. The Court recalled how the cour d’appel had ruled that a preliminary hearing to hear the views of the children would have served no purpose; a lawyer had been appointed to convey their wishes and he had duly reported their wish not to be separated from the mother. The cour d’appel had ruled that the facts mentioned by the children were no longer of relevance and could not be said to characterise a future danger so as to place them in an intolerable situation whilst under the care of the father. The Court ruled therefore that the cour d’appel had given sufficient consideration as to whether the views of the children alone could suffice to dismiss the return petition.

INCADAT comment

Nature and Strength of Objection

Australia
De L. v. Director-General, NSW Department of Community Services (1996) FLC 92-706 [INCADAT cite: HC/E/AU 93].

The supreme Australian jurisdiction, the High Court, advocated a literal interpretation of the term ‘objection'.  However, this was subsequently reversed by a legislative amendment, see:

s.111B(1B) of the Family Law Act 1975 inserted by the Family Law Amendment Act 2000.

Article 13(2), as implemented into Australian law by reg. 16(3) of the Family Law (Child Abduction) Regulations 1989, now provides not only that the child must object to a return, but that the objection must show a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

See for example:

Richards & Director-General, Department of Child Safety [2007] FamCA 65 [INCADAT cite: HC/E/UKs 904].

The issue as to whether a child must specifically object to the State of habitual residence has not been settled, see:

Re F. (Hague Convention: Child's Objections) [2006] FamCA 685 [INCADAT cite: HC/E/AU 864].

Austria
9Ob102/03w, Oberster Gerichtshof (Austrian Supreme Court), 8/10/2003 [INCADAT: cite HC/E/AT 549].

A mere preference for the State of refuge is not enough to amount to an objection.

Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles, 27/5/2003 [INCADAT cite: HC/E/BE 546].

A mere preference for the State of refuge is not enough to amount to an objection.

Canada
Crnkovich v. Hortensius, [2009] W.D.F.L. 337, 62 R.F.L. (6th) 351, 2008, [INCADAT cite: HC/E/CA 1028].

To prove that a child objects, it must be shown that the child "displayed a strong sense of disagreement to returning to the jurisdiction of his habitual residence. He must be adamant in expressing his objection. The objection cannot be ascertained by simply weighing the pros and cons of the competing jurisdictions, such as in a best interests analysis. It must be something stronger than a mere expression of preference".

United Kingdom - England & Wales
In Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242 [INCADAT cite: HC/E/UKs 87] the Court of Appeal held that the return to which a child objects must be an immediate return to the country from which it was wrongfully removed. There is nothing in the provisions of Article 13 to make it appropriate to consider whether the child objects to returning in any circumstances.

In Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKs 56] it was, however, accepted that an objection to life with the applicant parent may be distinguishable from an objection to life in the former home country.

In Re T. (Abduction: Child's Objections to Return) [2000] 2 FCR 159 [INCADAT cite: HC/E/UKe 270] Ward L.J. set down a series of questions to assist in determining whether it was appropriate to take a child's objections into account.

These questions where endorsed by the Court of Appeal in Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72 [INCADAT cite: HC/E/UKe 901].

For academic commentary see: P. McEleavy ‘Evaluating the Views of Abducted Children: Trends in Appellate Case Law' [2008] Child and Family Law Quarterly, pp. 230-254.

France
Objections based solely on a preference for life in France or life with the abducting parent have not been upheld, see:

CA Grenoble 29/03/2000 M. v. F. [INCADAT cite: HC/E/FR 274];

TGI Niort 09/01/1995, Procureur de la République c. Y. [INCADAT cite: HC/E/FR 63].

United Kingdom - Scotland
In Urness v. Minto 1994 SC 249 [INCADAT cite: HC/E/UKs 79] a broad interpretation was adopted, with the Inner House accepting that a strong preference for remaining with the abducting parent and for life in Scotland implicitly meant an objection to returning to the United States of America.

In W. v. W. 2004 S.C. 63 IH (1 Div) [INCADAT cite: HC/E/UKs 805] the Inner House, which accepted the Re T. [INCADAT cite: HC/E/UKe 270] gateway test, held that objections relating to welfare matters were only to be dealt with by the authorities in the child's State of habitual residence.

In the subsequent first instance case: M. Petitioner 2005 S.L.T. 2 OH [INCADAT cite: HC/E/UKs 804], Lady Smith noted the division in appellate case law and decided to follow the earlier line of authority as exemplified in Urness v. Minto.  She explicitly rejected the Re T. gateway tests.

The judge recorded in her judgment that there would have been an attempt to challenge the Inner House judgment in W. v. W. before the House of Lords but the case had been resolved amicably.

More recently a stricter approach to the objections has been followed, see:  C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]; upheld on appeal: C v. C. [2008] CSIH 34, [INCADAT cite: HC/E/UKs 996].

Switzerland
The highest Swiss court has stressed the importance of children being able to distinguish between issues relating to custody and issues relating to return, see:

5P.1/2005 /bnm, Bundesgericht II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 795];

5P.3/2007 /bnm; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 894].

A mere preference for life in the State of refuge, even if reasoned, will not satisfy the terms of Article 13(2):

5A.582/2007 Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 986].

For general academic commentary see: R. Schuz ‘Protection or Autonomy -The Child Abduction Experience' in  Y. Ronen et al. (eds), The Case for the Child- Towards the Construction of a New Agenda,  271-310 (Intersentia,  2008).

Separate Representation

There is a lack of uniformity in English speaking jurisdictions with regard to separate representation for children.

United Kingdom - England & Wales
An early appellate judgment established that in keeping with the summary nature of Convention proceedings, separate representation should only be allowed in exceptional circumstances.

Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKe 56].

Reaffirmed by:

Re H. (A Child: Child Abduction) [2006] EWCA Civ 1247, [2007] 1 FLR 242 [INCADAT cite: HC/E/UKe 881];

Re F. (Abduction: Joinder of Child as Party) [2007] EWCA Civ 393, [2007] 2 FLR 313, [INCADAT cite: HC/E/UKe 905].

The exceptional circumstances standard has been established in several cases, see:

Re M. (A Minor) (Abduction: Child's Objections) [1994] 2 FLR 126 [INCADAT cite: HC/E/UKe 57];

Re S. (Abduction: Children: Separate Representation) [1997] 1 FLR 486 [INCADAT cite: HC/E/UKe 180];

Re H.B. (Abduction: Children's Objections) (No. 2) [1998] 1 FLR 564 [INCADAT cite: HC/E/UKe 168];

Re J. (Abduction: Child's Objections to Return) [2004] EWCA CIV 428, [2004] 2 FLR 64 [INCADAT cite: HC/E/UKe 579];

Vigreux v. Michel [2006] EWCA Civ 630, [2006] 2 FLR 1180 [INCADAT cite: HC/E/UKe 829];

Nyachowe v. Fielder [2007] EWCA Civ 1129, [INCADAT cite: HC/E/UKe 964].

In Re H. (A Child) [2006] EWCA Civ 1247, [2007] 1 FLR 242, [INCADAT cite: HC/E/UKe 881] it was suggested by Thorpe L.J. that the bar had been raised by the Brussels II a Regulation insofar as applications for party status were concerned.

This suggestion was rejected by Baroness Hale in:

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 A.C. 619  [INCADAT cite: HC/E/UKe 880]. Without departing from the exceptional circumstances test, she signalled the need, in the light of the new Community child abduction regime, for a re-appraisal of the way in which the views of abducted children were to be ascertained. In particular she argued for views to be sought at the outset of proceedings to avoid delays.

In Re F. (Abduction: Joinder of Child as Party) [2007] EWCA Civ 393, [2007] 2 FLR 313, [INCADAT cite: HC/E/UKe 905] Thorpe L.J. acknowledged that the bar had not been raised in applications for party status.  He rejected the suggestion that the bar had been lowered by the House of Lords in Re D.

However, in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937] Baroness Hale again intervened in the debate and affirmed that a directions judge should evaluate whether separate representation would add enough to the Court's understanding of the issues to justify the resultant intrusion, delay and expense which would follow.  This would suggest a more flexible test, however, she also added that children should not be given an exaggerated impression of the relevance and importance of their views and in the general run of cases party status would not be accorded.

Australia
Australia's supreme jurisdiction sought to break from an exceptional circumstances test in De L. v. Director General, New South Wales Department of Community Services and Another, (1996) 20 Fam LR 390 [INCADAT cite: HC/E/AU 93].

However, the test was reinstated by the legislator in the Family Law Amendment Act 2000, see: Family Law Act 1975, s. 68L.

See:
State Central Authority & Quang [2009] FamCA 1038, [INCADAT cite: HC/E/AU 1106].

France
Children heard under Art 13(2) can be assisted by a lawyer (art 338-5 NCPC and art 388-1 Code Civil - the latter article specifies however that children so assisted are not conferred the status of a party to the proceedings), see:

Cass Civ 1ère 17 Octobre 2007, [INCADAT cite: HC/E/FR 946];

Cass. Civ 1ère 14/02/2006, [INCADAT cite: HC/E/FR 853].

In Scotland & New Zealand there has been a much greater willingness to allow children separate representation, see for example:

United Kingdom - Scotland
C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962];

M. Petitioner 2005 SLT 2 [INCADAT cite: HC/E/UKs 804];

W. v. W. 2003 SLT 1253 [INCADAT cite: HC/E/UKs 508];

New Zealand
K.S v.L.S [2003] 3 NZLR 837 [INCADAT cite: HC/E/NZ 770];

B. v. C., 24 December 2001, High Court at Christchurch (New Zealand) [INCADAT cite: HC/E/NZ 532].

Extreme Reaction to a Return Order

In a certain number of cases the reaction of children to a proposed return to the State of habitual residence goes beyond a mere objection and may manifest itself in physical opposition to being sent back or the threat of suicide. There have also been examples of an abducting parent threatening to commit suicide if forced to return to the child's State of habitual residence.


Physical Resistance

There are several examples of cases where the views of the children concerned were not gathered or were initially not acted upon and this resulted in the children taking steps to prevent the return order being enforced; in each case the return order was subsequently overturned or dismissed, see:

United Kingdom - England & Wales
Re M. (A Minor) (Child Abduction) [1994] 1 FLR 390 [INCADAT cite: HC/E/UKe 56];

The children attempted to open the door of the aircraft taking them back to Australia as it taxied for take off at London's Heathrow airport.

Re H.B. (Abduction: Children's Objections) [1998] 1 FLR 422 [INCADAT cite: HC/E/UKe 167];

The younger of two siblings, a girl aged 12, refused to board a plane to take her back to Denmark. Ironically, the older brother had only been made subject to the return order to ensure the siblings would not be separated.

Re B. (Children) (Abduction: New Evidence) [2001] 2 FCR 531 [INCADAT cite: HC/E/UKe 420];

The children attacked the court officers sent to take them to Heathrow airport for their flight back to New Zealand.

Australia
Re F. (Hague Convention: Child's Objections) [2006] FamCA 685, [INCADAT cite: HC/E/AU 864];

An 11 year old boy resisted attempts to place him on a plane to the United States of America.


Threat of Suicide

Where it is alleged at trial that the child or abducting parent will commit suicide if forced to return, it is for the court seized to decide on the veracity of the claim in the light of the available evidence and the circumstances of the case.

The issue of course may not always be raised, as happened in the Hong Kong Special Administrative Region case S. v. S. [1998] 2 HKC 316, [INCADAT cite: HC/E/HK 234] where after a return order was made the mother killed her child and then committed suicide.


Threat of Suicide - Child

Evidence that the child concerned had threatened to commit suicide was central to a non-return order being made in the following cases:

United Kingdom - England & Wales
Re R. (A Minor Abduction) [1992] 1 FLR 105 [INCADAT cite: HC/E/UKe 59].

Israel
Evidence that a child had previously made a suicide attempt in the State of habitual residence was not accepted as justifying a non-return order in:

Family Appeal 1169/99 R. v. L. [INCADAT cite: HC/E/IL 834].

A submission that a child would commit suicide was not accepted as justifying a non-return order in:

B. v. G., Supreme Court 8 April 2008 [INCADAT cite: HC/E/IL 923].

Australia
Commissioner, Western Australia Police v. Dormann, JP (1997) FLC 92-766 [INCADAT cite: HC/E/AU 213].


Threat of Suicide - Abducting parent

Evidence that the abducting parent may commit suicide if forced to return to the child's State of habitual residence has been upheld as creating a situation where the child concerned would be at a grave risk of harm and should not therefore be sent back, see:

Australia
J.L.M. v. Director-General NSW Department of Community Services [2001] HCA 39 [INCADAT cite: HC/E/AU 347];

Director-General, Department of Families v. RSP [2003] FamCA 623 [INCADAT cite: HC/E/AU 544].


Illness

New Zealand
Secretary for Justice v. C., ex parte H., 28/04/2000, transcript, District Court at Otahuhu [INCADAT cite: HC/E/NZ 534].

The latter meeting, during which the child's counsel was present, terminated when the boy became unwell and vomited as a result of the judge mentioning the possibility of a return to Australia.