AFFAIRE

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Nom de l'affaire

9Ob59/09f, Oberster Gerichtshof

Référence INCADAT

HC/E/AT 1034

Juridiction

Pays

Autriche

Degré

Instance Suprême

États concernés

État requérant

États-Unis d'Amérique

État requis

Autriche

Décision

Date

28 August 2009

Statut

Définitif

Motifs

Résidence habituelle - art. 3

Décision

-

Article(s) de la Convention visé(s)

3

Article(s) de la Convention visé(s) par le dispositif

3

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

INCADAT commentaire

Objectifs et domaine d’application de la Convention

Résidence habituelle
Résidence habituelle

RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The child was born in 2004 in the United States of America. Her parents were opera singers and had joint custody. The child lived in California for three years and then in Pennsylvania for some time at her grandparents' home, always with her parents.

On 14 September 2007 the family left for Austria, where it was intended they would live, in Vienna, until June 2008. In this, the father respected the mother's wish to provide a stable environment for her child in a place where she could combine her role as mother with her career. It is not clear whether the parents had discussed the conditions for a possible return to the United States of America. They were travelling with tourist visas.

Upon their arrival, the mother found employment in a school. The mother only auditioned once between October 2007 and February 2008, such that it was doubtful whether she would be taken on permanently as a singer as she had initially wished. From December, after spending 6 weeks in the United States of America, the father asked the mother to reconsider her plans. The parents finally separated in February 2008.

The father had a contract in Vienna starting in June 2008. He lived in the United States of America for the three months prior to that date. He lived in Vienna from June to December 2008, and then in Amsterdam until May 2009. He then planned to live in California.

In September 2008, he applied for return of the child to the United States of America. On 26 November 2008, the District Court in Vienna (Bezirksgericht Innere Stadt Wien) rejected his application. On 24 March 2009, this decision was confirmed on appeal. The father lodged an appeal with the Supreme Court.

Ruling

Appeal declared inadmissible.

Grounds

Habitual Residence - Art. 3

The Supreme Court declared the appeal inadmissible for the reason that there was already case law on the legal questions raised which related to the habitual residence. The Court recalled that a child who is in the place of his or her habitual residence cannot have been removed nor have been subject to retention in the sense of the Convention.

The issue was then to know whether the place in question was in fact the centre of the person's life, of his/her economic existence and social relationships. The court emphasised that the stay should be determined only according to factual circumstances. The length of the stay was not in itself a determining factor, but generally, residence of more than 6 months was considered habitual residence. However, this depended on the circumstances of each case.

The Court observed from its findings that the mother's career ambitions were the main reason for moving to Austria but that, nevertheless, it did not appear that the stay in Austria was intended to be for a limited period of time. In light of the elements available to it, the Court of Appeal was not able to decide otherwise.

The Court added that habitual residence could be acquired even against the will of the co-custodian since only the facts were taken into account. Children may, indeed, acquire habitual residence on their own account but the residence of the parents was a major factor in identifying the habitual residence of very young children.

In the case at hand, there was no doubt that the mother, with whom the child had always lived, did not have merely temporary residence in Austria (where the father also intended to establish his residence before changing his mind). It is true that the contrary wish of the father could result in the child's residence in Austria not being long term, but this aspect could not be determinant if there existed a long period of residence which had allowed the child to integrate.

By the father's own account, the date on which the mother had definitely rejected the idea of a return to the United States of America was approximately 6 months after settling in Austria so that it can reasonably be justified that already at that time the child had acquired habitual residence in Austria.

As a result, the questions of (1) if and to what extent a conditional agreement to a move can prevent habitual residence being acquired and (2) where the child was to be returned, since the father's place of residence was itself uncertain, were not relevant, contrary to what the Court of Appeal had stated. The Convention was not applicable as there was no wrongful retention in the sense of Article 3.

INCADAT comment

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

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

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.