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Nombre del caso

Cass Civ 1ère 9 Juin 2010, N° de pourvoi 09-65170

Referencia INCADAT

HC/E/FR 1071

Tribunal

País

Francia

Instancia

última instancia

Estados involucrados

Estado requirente

Estados Unidos de América

Estado requerido

Francia

Fallo

INCADAT comentario

Excepciones a la restitución

Aceptación posterior
Aceptación posterior

SUMARIO

Sumario disponible en EN | FR

Facts

The application concerned a girl born in the USA in 2007. The parents had lived there since June 2006. The parents and child travelled to France in September 2007. The father returned to the USA alone in October, and the mother remained in France to work. The father entered an application for the child's return

On 3 July 2008, the Toulouse Court at first instance dismissed the father's application, and he appealed against that ruling. On 2 December 2006, the Toulouse Court of Appeal upheld the lower-court ruling, on the grounds that the retention was wrongful but that the father had acquiesced in it. The father appealed to the Supreme Court.

Ruling

Appeal dismissed. The Court of Appeal had proper grounds to hold that the retention was wrongful, and had observed correctly that the father had acquiesced in the child's residence in France.

Grounds

Acquiescence - Art. 13(1)(a)

The Court of Appeal had considered that the parents were in complete disagreement regarding the location of the family's durable residence, but had nonetheless observed that the parents' visa was due to expire in February 2008 and that the father had been informed of the offer of the mother's employment from October to February and had not objected to it.

He had himself requested relocation to Toulouse of the mother's belongings which she would need in order to resume her teaching activities. While return tickets had been purchased, they did not reflect an intention to return to the USA, whereas the return date was in the middle of the school year (the mother alleged that the fares were cheaper than for ordinary tickets). Finally, the mother's application for membership of the French welfare scheme had been signed jointly by the father.

The father asserted that the Court of Appeal had misinterpreted his pleas by considering in its observations that he had not objected to the offer of the mother's employment in France whereas he had objected and the mother had proceeded regardless. He added that he had denied his handwriting on the application for membership of the welfare scheme, but the Court of Appeal had not sought to determine whether the document was in his hand.

Finally, he added that the Court of Appeal had been inconsistent in ruling both that there was "major disagreement regarding the location of the family's durable residence" and that the father had acquiesced in the child's residence in France. The Supreme Court dismissed the father's appeal. It pointed out that the Court of Appeal had observed that the spouses had set their habitual residence in the USA and that the child's removal required both parents' consent.

It added that the Court of Appeal had noted that it had been proven that the father had been informed of the offer of his wife's employment for a period running until February 2008, and that various possessions required for the mother's resumption of work had been shipped to France, demonstrating the father's consent to that resumed activity, so that the Court of Appeal might properly, without inconsistency, exercise its discretion in deducing that the father had acquiesced, at least until February 2008, in his child's residence in France. The Court of Appeal was not required to ascertain whether the document had been signed in the father's hand when no related plea had been entered.

Author of the summary: Aude Fiorini

INCADAT comment

The judgment of the Toulouse Court of Appeal, upheld by this decision, is available on this site: [INCADAT Reference: HC/E/FR 960].

Acquiescence

There has been general acceptance that where the exception of acquiescence is concerned regard must be paid in the first instance to the subjective intentions of the left behind parent, see:

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

Barry Eldon Matthews (Commissioner, Western Australia Police Service) v. Ziba Sabaghian PT 1767 of 2001 [INCADAT cite: HC/E/AU 345];

Austria
5Ob17/08y, Oberster Gerichtshof, (Austrian Supreme Court) 1/4/2008 [INCADAT cite: HC/E/AT 981].

Considering the issue for the first time, Austria's supreme court held that acquiescence in a temporary state of affairs would not suffice for the purposes of Article 13(1) a), rather there had to be acquiescence in a durable change in habitual residence.

Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003, [INCADAT cite: HC/E/BE 545];

Canada
Ibrahim v. Girgis, 2008 ONCA 23, [INCADAT cite: HC/E/CA 851];

United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];

In this case the House of Lords affirmed that acquiescence was not to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children.

Ireland
K. v. K., 6 May 1998, transcript, Supreme Court of Ireland [INCADAT cite: HC/E/IE 285];

Israel
Dagan v. Dagan 53 P.D (3) 254 [INCADAT cite: HC/E/IL 807];

New Zealand
P. v. P., 13 March 2002, Family Court at Greymouth (New Zealand), [INCADAT cite: HC/E/NZ 533];

United Kingdom - Scotland
M.M. v. A.M.R. or M. 2003 SCLR 71, [INCADAT cite: HC/E/UKs 500];

South Africa
Smith v. Smith 2001 (3) SA 845 [INCADAT cite: HC/E/ZA 499];

Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841].

In keeping with this approach there has also been a reluctance to find acquiescence where the applicant parent has sought initially to secure the voluntary return of the child or a reconciliation with the abducting parent, see:

United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];

P. v. P. (Abduction: Acquiescence) [1998] 2 FLR 835, [INCADAT cite:  HC/E/UKe 179];

Ireland
R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416, [INCADAT cite: HC/E/IE 285];

United States of America
Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass. 1994), [INCADAT cite: HC/E/USf 84];

In the Australian case Townsend & Director-General, Department of Families, Youth and Community (1999) 24 Fam LR 495, [INCADAT cite: HC/E/AU 290] negotiation over the course of 12 months was taken to amount to acquiescence but, notably, in the court's exercise of its discretion it decided to make a return order.