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AFFAIRE

Texte complet non disponible

Nom de l'affaire

MacMillan v. MacMillan 1989 SLT 350

Référence INCADAT

HC/E/UKs 25

Juridiction

Pays

Royaume-Uni - Écosse

Nom

Inner House of the Court of Session (Extra Division) (Ecosse)

Degré

Deuxième Instance

États concernés

État requérant

Canada

État requis

Royaume-Uni - Écosse

Décision

Date

12 August 1988

Statut

Définitif

Motifs

Risque grave - art. 13(1)(b)

Décision

Recours rejeté, retour refusé

Article(s) de la Convention visé(s)

2 3 13(1)(b)

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

13(1)(b)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans
http://www.hcch.net/incadat/fullcase/0025.htm

INCADAT commentaire

Exceptions au retour

Risque grave de danger
Jurisprudence du Royaume-Uni - Angleterre et Pays de Galles

Mise en œuvre & difficultés d’application

Mesures facilitant le retour de l’enfant
Assurer un retour sans danger / Ordonnances miroir

RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The child, a girl, was 2 1/2 at the date of the alleged wrongful removal. She had lived in Canada all of her life. The parents were separated and had joint rights of custody. On 1 February 1988 the mother went to Scotland, her State of origin, with the child.

On 1 April 1988 the father was granted temporary custody of the child by the Supreme Court of Ontario which also ordered that the child be returned Canada.

On 7 October 1988 the Outer House of the Court of Session refused the father's petition.

Ruling

Appeal dismissed and return refused; the father's history of depression and alcoholism created a risk to the child serious enough to support a finding under Article 13(1)(b).

Grounds

Grave Risk - Art. 13(1)(b)

The mother was unable to return to Canada for financial reasons and thus the child would have been in the sole custody of the father if she were returned. In determining whether the child would be exposed to a grave risk of harm when she returned to Canada without the mother, the court was entitled to consider the practical circumstances of what was likely to happen, not simply the effects on the child. The father's history of depression and alcoholism created a serious risk to the child and was sufficient to support an application under Article 13(1)(b). While the father's present mental state showed improvement, the child would have been at risk if it deteriorated because she would have been in his sole care. The Outer House had misdirected itself in speculating whether arrangements could be made to obviate the risk to the child if she were returned to Canada. The applicable time for assessing what amounted to a grave risk for the purposes of Article 13(1)(b) was the situation prevailing at the time the petition was heard before the Outer House. It was contrary to the intention of the Convention to delay a decision in the hope that appropriate arrangements could be made for the care of the child on its return.

INCADAT comment

For a criticism of this case see: Beaumont P.R. and McEleavy P.E., "The Hague Convention on International Child Abduction"  OUP, Oxford, 1999 at p. 148. More recent Scottish case law has taken a far more strict approach to the grave risk of harm exception.

UK - England and Wales Case Law

The English Court of Appeal has taken a very strict approach to Article 13 (1) b) and it is rare indeed for the exception to be upheld.  Examples of where the standard has been reached include:

Re F. (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224, [INCADAT cite: HC/E/UKe 8];

Re M. (Abduction: Psychological Harm) [1997] 2 FLR 690, [INCADAT cite: HC/E/UKe 86];

Re M. (Abduction: Leave to Appeal) [1999] 2 FLR 550, [INCADAT cite: HC/E/UKe 263];

Re D. (Article 13B: Non-return) [2006] EWCA Civ 146, [2006] 2 FLR 305, [INCADAT cite: HC/E/UKe 818];

Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996 [INCADAT cite: HC/E/UKe 931].

Safe Return / Mirror Orders

A practice has arisen in a number of Contracting States for return orders to be made subject to compliance with certain specified requirements or undertakings. To ensure that such protective measures are enforceable, the applicant may be required to have these measures registered in identical or equivalent terms in the child's State of habitual residence. These replica orders are commonly referred to as ‘safe return' or ‘mirror orders'.

Return orders have been made subject to the enactment of safe return /mirror orders in the following jurisdictions:

Australia
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane), [INCADAT cite: HC/E/AU 294];

United Kingdom - England & Wales
Re W. (Abduction: Domestic Violence) [2004] EWHC 1247, [2004] 2 FLR 499  [INCADAT cite: HC/E/ UKe 599];

Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].

A request by the English High Court for protective measures ancillary to an order for international contact to be registered in the State of visitation was upheld by the Panama Second Court of Childhood and Adolescence, see:

Ruling Nº393-05-F, [INCADAT cite: HC/E/PA 872].

A request that a return order be made subject to the implementation of mirror orders was turned down in:

Israel 
Family Application 8743/07 Y.D.G. v T.G., [INCADAT cite: HC/E/IL 983].

The Jerusalem Family Court ruled that since accusations against the father had not been upheld there was no basis to impose conditions to ensure the children's safety, other than deposit of money to secure the father's undertaking that they could live in his apartment. There was no need to obtain a mirror order from the US courts as the delay in so doing would harm the children.