CASO

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Nombre del caso

M. v. K., 20/06/2000; Iceland Supreme Court

Referencia INCADAT

HC/E/IS 363

Tribunal

País

Islandia

Nombre

Iceland Supreme Court (Islandia)

Instancia

última instancia

Estados involucrados

Estado requirente

España

Estado requerido

Islandia

Fallo

Fecha

20 June 2000

Estado

Definitiva

Fundamentos

Derechos de custodia - art. 3 | Objeciones del niño a la restitución - art. 13(2) | Cuestiones relativas a la restitución | Cuestiones procesales

Fallo

Apelación concedida, restitución ordenada

Artículo(s) del Convenio considerados

3 5 12 13(2) 14 15 19

Artículo(s) del Convenio invocados en la decisión

3 12 13(2)

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

INCADAT comentario

Mecanismo de restitución del artículo 12

Restitución
Restitución inmediata
Derechos de custodia
Patria potestad

Excepciones a la restitución

Oposición del menor
Naturaleza y tenor de la oposición

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The parties lived in Spain, they separated in 1998 and divorced in 1999. Their two children, boys aged 10 and 13, lived with the mother after the separation and divorce. The mother had some custody rights, "custodia" and "cuidado", but other custody rights, notably, patria potestas, were shared by the parents. The mother took the children to Iceland in September 1999.

In November 1999 the father requested the return of the children through the Spanish Central Authority. On 19 April 2000 the District Court of Reykjanes refused to order the return of the boys. The mother had claimed to have sole custody which enabled her to decide where the children should reside.

The father appealed to the Supreme Court of Iceland. Leave was given for the submission of further evidence, including a psychiatrist's report regarding the views of the younger child and statements from a Spanish Judge and from the Central Authority of Spain regarding the Spanish law on custody.

Ruling

Appeal allowed and return ordered; the removal was wrongful and none of the exceptions had been proved to the standard required under the Convention.

Grounds

Rights of Custody - Art. 3


Having received information from the Spanish Central Authority on the nature of custody rights in Spanish law the court ruled that the Patria Potestas held by the father did indeed amount to rights of custody for the purposes of the Convention. The unilateral removal of the children breached this right and was therefore wrongful.

Objections of the Child to a Return - Art. 13(2)
The views of the children were found to be that they wanted to stay with their mother, however, they had no objections to returning to or living in Spain. For this reason the court found that the exception had not been proved.

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

The views of the children were found to be that they wanted to stay with their mother, however, they had no objections to returning to or living in Spain. For this reason the court found that the exception had not been proved.

Issues Relating to Return


With reference to Article 19 of the Convention the court noted that an order to return the children would not change the legal situation according to the divorce agreement, i.e. the children should still live with their mother in Spain.

Procedural Matters


The mother was ordered to take the children back to Spain within two months of the day of the judgment. In case the mother failed to do so, the father was permitted, at the end of the two months, to have the children taken away from the mother and brought to Spain. Each party was left to pay his/her costs of the case.

INCADAT comment

While Icelandic legislation has only one term for the concept of custody Spanish law has four: "Patria Potestad", "Guardia", "Custodia" and "Cuidado". Under Icelandic law parents either have joint custody or one of them has sole custody.

Return Forthwith

Where a removal or retention is established as being wrongful and less that 12 months have elapsed before the commencement of the return proceedings, then Article 12(1) provides that the child shall be returned forthwith.  This is designed to give effect to the goal of restoring the pre-abduction situation as quickly as possibly.  However questions sometimes arise as to the modalities of return and whether, if at all, time should be allowed to make preparations or to allow the child finish the school term.  Practice varies on this issue.

United States of America
Sampson v. Sampson, 267 Kan. 175, 975 P.2d 1211 (Kan. App. 1999), [INCADAT cite: HC/E/USs 226].

The trial court gave the mother 90 days to submit herself and the children to the jurisdiction of the Israeli courts.

In other cases the concept of the return 'forthwith' of a wrongfully removed or retained child has been interpreted much more strictly, see:

France
Procureur de la Rèpublique c. Bartège, 27 June 1994, transcript, Montpellier Court of Appeal [INCADAT cite: HC/E/FR 63];

New Zealand
Fenton v. Morris, 28 July 1995, transcript, New Zealand District Court at Wellington [INCADAT cite: HC/E/NZ 249];

United Kingdom - Scotland
D.I. Petitioner [1999] Green's Family Law Reports 126, [INCADAT cite: HC/E/UKs 352].

The trial judge held that the meaning of the term ‘return forthwith' depended on the circumstances of the case. It was agreed by the parties that the original time of two days was unrealistically short and a figure of seven days was agreed instead.

It has equally been noted that a return forthwith may no longer be appropriate where excessive delay has occurred since the commencement of the return proceedings:

United Kingdom - England & Wales
Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 A.C. 619, [INCADAT cite: HC/E/UKe 880] : almost 4 years had elapsed since the arrival of the child.

Patria Potestas

The doctrine of patria potestas which continues to occupy a residual role in many Spanish speaking jurisdictions, has, when not otherwise limited or restricted, been interpreted by Courts in several Contracting States as giving rise to custody rights for the purposes of the Convention, see:

Iceland
The Supreme Court of Iceland has found that the removal of a child in breach of the patria potestas held by a father under Spanish law gave rise to a wrongful removal, see:

M. v. K., 20/06/2000; Iceland Supreme Court [INCADAT cite: HC/E/IS 363].

United Kingdom - Scotland
The Court of Session in Scotland has similarly found that the removal of a child in breach of the patria potestas held by a father under Spanish law gave rise to a wrongful removal, see:

Bordera v. Bordera 1995 SLT 117 [INCADAT cite: HC/E/UKs 183].

United States of America
In Whallon v. Lynn, 230 F.3d 450 (1st Cir. October 27, 2000) [INCADAT cite: HC/E/USf 388] the concept of patria potestas under Mexican law was given the same interpretation;

In Gil v. Rodriguez, 184 F.Supp.2d 1221 (M.D.Fla.2002) [INCADAT cite: HC/E/USf 462]

and

Vale v. Avila, 538 F.3d 581, (7th Cir. 2008), [INCADAT cite: HC/E/USf 990]

the concept of patria potestas under Venezuelan law was given the same interpretation.

However, in the case of Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002) [INCADAT cite: HC/E/USf 493], the United States Court of Appeals for the Ninth Circuit held that the applicant father could not claim custody rights on the basis of the Mexican concept of patria potestas because he and the mother had executed a formal legal custody agreement.

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).