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Fourth Circuit affirms district court’s finding that International Child Abduction Remedies Act (ICARA) does not confer jurisdiction upon federal courts to hear claims of access denials
Petitioner Sarah Claudia Aragon Cantor and Respondent Andrew Cohen married in April 1990 in Israel. During the marriage the couple had four children, R.C., A.C., I.C., and Y.C. On July 16, 1998, the couple divorced in an Israeli Rabbinical Court; it also decreed that respondent would take custody of A.C. and I.C. and petitioner would retain custody of Y.C. and R.C. Petitioner and respondent later agreed on placing the girls, R.C. and A.C., with the petitioner and the boys, I.C. and Y.C. with the respondent. On January 2, 2000, the Rabbinical Court handed down a modified divorce degree conforming to this agreement.
On July 9, 2002, the Court issued a third divorce decree providing that petitioner would retain custody over the two girls and respondent over the two boys. This decree also ruled that the two boys and A.C. should live with the respondent in Germany, where the U.S. Air Force had stationed him at the time. In December 2002, petitioner and respondent had talks about R.C.’s situation in Israel. As a result, the parties agreed that R.C. would move to Germany to live with respondent. The parties, however, could not agree on when R.C. should return to Israel.
On March 2, 2004, the USAF assigned respondent briefly to Qatar and then back to the U.S. At the end of his tour, respondent and the four children continued to live in the U.S. Petitioner, who was still living in Israel, filed with the Maryland federal court asking for the return of, and/or access to, the children. The court found that it lacked jurisdiction to hear petitioner’s access claims and dismissed that prong of the petition. The court then granted petitioner’s motion for final judgment and petitioner noted a timely appeal. Reviewing the case de novo, the Fourth Circuit affirms.
The petitioner argued that the plain language of 42 U.S.C. Section 11603(b) of the ICARA, which implements the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670; in force for U.S. July 1, 1988], confers jurisdiction on federal courts to hear access claims. It states that: “[a]ny person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”
The Fourth Circuit disagrees with petitioner’s reading. It points out that the correct analysis does not begin with Section 11603 but with Section 11601, ICARA’s implementing language. Section 11601 does not mention visitation rights or access rights until the last subsection. Subsection (a)(4) prescribes that “[t]he Convention . . . establishes legal rights and procedures for the prompt return of the children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights.” Moreover, subsection (b)(4) provides that “the Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.”
Article 21 of the Hague Convention – - itself entitled “Rights of Access” – - allows for applications to “secure and organize” rights of access to the local Central Authority, in this case, the U.S. Department of State. This differs markedly from Article 12 of the Convention. This Article provides for the filing of judicial proceedings and grants judicial authority over wrongful removal or retention cases. The context makes it clear that the Convention does not empower the federal courts to exercise jurisdiction over access claims.
The Fourth Circuit further cites long established precedent that federal courts are courts of limited jurisdiction in family law matters. “With the exception of the limited matters of international child abduction or wrongful removal claims, which is expressly addressed by the Convention and ICARA, other child custody matters, including access claims, would be better handled by the state courts which have the experience to deal with this specific area of the law.” [Slip op. 8-9]
This does not leave the petitioner bereft of a remedy to enforce the exercise of her access rights, however, since the Convention does not preclude the petitioner from filing a claim for visitation rights in the appropriate state court under state family law.
Citation: Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006).
Filed in: 2006 International Law Update, Issue 4
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In proceeding under Hague Convention on Child Abduction, Third Circuit vacates and remands lower court’s order returning child from U.S. to Argentina in light of incomplete fact-finding on key issues
Avans (respondent) is a naturalized U.S. citizen. In 1998, she met Adan (petitioner), a citizen of Argentina, in Argentina, and they began cohabitating shortly thereafter. Respondent testified before the District Court that petitioner began to abuse her almost immediately. For example, he would lock her in his bedroom, beat her, and threaten her with further harm if she ever leaves him. When respondent became pregnant in 1999, she moved to New Jersey. Petitioner followed her in a month and, according to respondent, the abuse resumed. Respondent gave birth to Arianna on June 15, 2000. The parents went on living in New Jersey where respondent filed reports of petitioner’s abuse with the New Jersey police twice in a two-months span.
In September 2000, the parties returned to Argentina and, after receiving more abuse, respondent eventually began living apart from petitioner. At some point, the parties allegedly reached an informal custody agreement as to Arianna. Respondent next alleges that petitioner began sexually abusing Arianna in 2003. The child allegedly told her mother that petitioner took baths with her and that he apparently had put his tongue inside her mouth. Respondent also said that the child described having been sodomized by petitioner. In addition, respondent claimed that petitioner had raped respondent in front of Arianna.
After these incidents, respondent went to a family court in Argentina and secured a 90-day temporary restraining order (TRO) against petitioner. According to respondent, when petitioner violated the order, the local police failed to enforce it. Shortly before the February 2004 return date on the TRO, respondent took her daughter back to New Jersey. Petitioner followed his wife and child to the U.S. In April 2004, respondent obtained a TRO against petitioner from the local court.
Next, petitioner applied to the New Jersey federal court to order Arianna’s return to Argentina pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) [Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M. 1501 (1980)]. The International Child Abduction Remedies Act (ICARA), 42 U.S.C. Section 11601 et seq. implements the Hague Convention in the U.S. The court granted the application. It found that respondent had not shown by clear and convincing evidence that Arianna would be subject to physical or psychological harm if returned to Argentina.
With respect to the allegations of sexual abuse, the Judge shrugged off the child’s descriptions of petitioner’s sodomy and other inappropriate sexual behavior as being trivial. Respondent appealed. The U.S. Court of Appeals for the Third Circuit vacates the order and remands for further proceedings.
As the appellate court explains: “The purpose of the Convention is to ‘protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.’”
“Under Article 3 of the Convention, removing a child from a country is wrongful when: ‘[a] it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and [b] at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” [Slip op. 7-8]
Article 13(b) may, in effect, “ratify” an initially wrongful removal, however, if there is proof of a grave risk that the child’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. A petitioner must show by a preponderance of the evidence that he had, and was exercising, custody rights over the child under the country of origin’s laws and that the country of origin was the child’s “habitual residence.” Upon such a showing, the burden shifts to the other party to show by clear and convincing evidence that the Article 13(b) exception applies.
The Third Circuit reviews cases like this de novo. The issues on appeal are whether (1) Arianna was wrongfully removed from her habitual place of residence; and (2) whether the exception for wrongful removal can be applied to this case.
The Circuit Court concludes that Argentina is Arianna’s country of habitual residence. Though she was born in the U.S., the parents took Arianna to Argentina when she was three months old and lived there until February 2004. Petitioner and respondent clearly had a “settled purpose” and “shared parental intent” to raise their daughter in Argentina. On the other hand, the record is barren of any evidence of the alleged informal agreement between the parties about Arianna’s custody. Nor does it show that the parents had properly memorialized the agreement pursuant to Argentine law.
Moreover, the parties failed to cite, and the District Court did not refer to, any provisions of Argentine law dealing with the creation, terms, or enforceability of custody agreements. These lacunae make it impossible for the federal court to decide whether the alleged agreement had legal effects under Argentine law as the Convention requires.
In light of the lower court’s failure to consider these issues, “we are compelled to vacate its June 7, 2005 order and remand the case for further factfinding to determine: (1) what is the custody law of Argentina; (2) what are the terms of the parties’ agreement regarding custody of Arianna; (3) whether that agreement is enforceable under Argentine law; and (4) under the agreement (or, if the agreement is not enforceable, Argentine family law), whether [petitioner] had custody rights or mere rights of access, and whether he was validly exercising those rights at the time Arianna was removed. Upon the development of a proper factual record, we shall be in a better position to review the District Court’s factual and legal conclusions.” [Slip op. 13].
Citation: In re Application of Adan, 437 F.3d 381 (3rd Cir. 2006).
Filed in: 2006 International Law Update, Issue 3
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New Zealand Court of Appeal denies U.S. father’s petition under Hague Abduction Convention to have child returned to his former habitual residence in Illinois since child had lived long enough away from Illinois to have lost his habitual residence there and to have acquired new habitual residence in New Zealand
Mr. SK (plaintiff), a United States citizen residing in Chicago, Illinois where he has a successful law practice, and Ms. KP (defendant), a New Zealand citizen, met in the U.S. in 1993. Five years later, they were married in Scotland, and returned to live in Illinois. The defendant became pregnant with S in late 1999.
Due to difficulties in her pregnancy, the defendant traveled to New Zealand where her family could provide support. Later on, the defendant went back to Illinois to give birth to S.
In December 2000, with the plaintiff’s consent, the defendant returned to New Zealand where she spent six months; during this period, the plaintiff visited her twice. After the defendant and S had returned to Illinois in May 2001, the former became pregnant with L. Because the couple was experiencing difficulties in their marriage, the defendant initially agreed to have an abortion.
She later changed her mind, however, and once again obtained plaintiff’s consent to spend time with her family in New Zealand; there she gave birth to L by caesarean section in April 2002. Recognizing that the defendant would need enough time to recover from her surgery, the plaintiff refrained from pressing her to return. Instead, he visited her three times during her convalescence.
By September 2002, plaintiff began to realize that the defendant intended to remain with the children in New Zealand permanently. He filed proceedings in a New Zealand court to obtain an order for the return of the children and separate proceedings in the U.S. relating to the dissolution of the marriage and child custody.
The New Zealand Family Court held that, although the plaintiff had not consented to the continued residence of S in New Zealand, the actions or inactions of the parents over the relevant time period had caused S to lose his habitual residence in Illinois. At all relevant times, both the U.S. and New Zealand were parties to the Hague Convention on the Civil Aspects of International Child Abduction [ T.I.A.S. 11670; in force for U.S. July 1, 1988].
The plaintiff next appealed the decision to the High Court. It affirmed the Family Court’s ruling, finding that returning S to the United States would take him out of the family and social environment in which he had developed. The plaintiff then brought the current appeal.
In a 2 to 1 split, the New Zealand Court of Appeal dismisses plaintiff’s appeal. The Court first stresses its duty to construe the provisions of the Guardianship Amendment Act of 1991 (the 1991 Act), consistently with the Hague Convention (which it implements) with its emphasis on the prompt return of children wrongfully removed from, or retained away from, the state of their habitual residence.
Although local law does not substantively define the critical term, “habitual residence”, the Convention appears to treat it as a factual concept. Under this approach, Member State courts have looked to factors such as the settled purpose of the parents, actual residence for an appreciable period, the strength of the child’s ties to the existing state, the continuity of residence, and whether the stay in New Zealand was for a limited time.
“In a case such as the present, where the parents both intended at the outset of the child’s visit to New Zealand that the child would remain for a limited period and then return to the existing place of habitual residence, the circumstances do not indicate a shared parental intent beyond a limited stay. Giving that factor due consideration, there can in general, in such circumstances as the present, only be a loss of habitual residence as a result of the gradual weakening of connections with the former state through the process of the developing orientation of the child in the new state to the point that the original links have disappeared.” [¶ 19]
The Court then emphasizes two premises related to its discussion of the gradual loss of habitual residency in the former state.
“To my mind, in this context, a principle of particular importance is that the Court having jurisdiction should be slow to infer that there has been a loss of habitual residence arising from the prolonging of a child’s stay in a new state beyond original expectations without protest or countering action because of the desire to achieve a reconciliation or reach an agreement between parents on arrangements for custody. Otherwise there will be disincentives to parents consenting to children travelling to stay with family members in other states, and correlative incentives on parents to take precipitate action when stays are extended, or sought to be extended, in circumstances such as the present.”
“There is also support for the proposition that the Court should be slow to infer a change in habitual residence in the absence of [a] shared parental attempt to bring it about, this reflecting the weight attached to parental intention under the Convention. The decision of the Court on habitual residence must, however, in the end always reflect the underlying reality of the connection between the child and the particular state. Obviously there will be circumstances in which, having been considered, the facts indicate to the Court that all the circumstances of the case rather indicate this underlying reality.” [¶¶ 20, 22].
Although the Court expresses some reservations about the general principles upon which the lower courts based their decisions, the Court of Appeal does conclude that they not only reached the proper conclusion but also used valid reasoning.
“Nevertheless, the circumstances that each Judge relied on in reaching the conclusion that habitual residence in Illinois had been lost in this case provided substantial support for their conclusions. Having spent much of his life in New Zealand, even prior to his visit in November 2001, the child’s connections with Illinois had clearly gradually and substantially been weakened.”
“These visits were not simply in the nature of holidays which would not in themselves normally change habitual residence. They were rather for reasons of management of a difficult pregnancy and avoiding the Chicago winter. In that context, the child’s life in New Zealand amongst his extended family was likely to lead to attachments over time which decreased his connection with Illinois.”
“What persuaded the Judges in the end that habitual residence in that state was lost by September 2002 was that, by then, a very young child had spent a very substantial proportion of his life in New Zealand. I am satisfied that each Judge did have regard to the appellant’s purpose of attempted reconciliation, and his lack of any agreement that the child should remain indefinitely in New Zealand and that their judgments concerning habitual residence were in accordance with all the underlying principles of habitual residence.”
“On this basis the Judges were entitled to view the relatively short period in New Zealand as sufficient to bring about a change in the child’s habitual residence in Illinois. This being the reality of what had happened, it was open to the Judges to reach their finding that habitual residence in Illinois had been lost – even though the crucial events occurred during a period of attempted reconciliation. For these reasons I conclude that there was no error of law concerning the finding of loss of habitual residence in the judgment of the High Court, which affirmed that of the Family Court. I would accordingly dismiss the appeal.” [¶¶ 24-26]
Citation: S. K. v. K. P., [2005] 3 N.Z.L.R. 590 (N. Z. C. A. 2005).
Filed in: 2006 International Law Update, Issue 1
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In case involving international abduction of children allegedly to escape abusive parent, Seventh Circuit reverses, relying on defense under Hague Abduction Convention that return would expose child to harm
Jennifer, a U.S. citizen, married Davy van de Sande, a Belgian citizen, in 1999 and they had two children. They eventually moved to Belgium. But not all was merry in their relationship. Jennifer alleged that Davy often beat and threatened her, as well as the children. One day, Jennifer took the children and returned to the U.S. Davy first obtained an ex parte custody decree in Belgium, and then sought the return of the children to Belgium. He filed an action in U.S. federal court.
The International Child Abduction Remedies Act, 42 U.S.C. Section 11601, implements the Hague Convention on the Civil Aspects of International Child Abduction (October 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89). It permits parents to seek the return of children abducted to another member state.
Jennifer presented six affidavits describing Davy’s violent behavior and threats. The district court found most of the violence directed at Jennifer – not the children – and granted Davy summary judgment. Presumably, the court was influenced by the assumption that the Belgian legal system would provide sufficient safeguards in this case.
The U.S. Court of Appeals for the Seventh Circuit reverses and remands.
The abducting parent has a narrow defense under the Hague Convention. Under Article 13(b) of the Convention, the abducting parent may not have to return the child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The affidavits in this case could be clear and convincing evidence of “risk of harm” to the children if returned to Belgium. The issue is whether they prove a “grave” risk of harm, and whether the children should be returned under these circumstances.
“Return plus conditions (‘undertakings’) can in some, maybe many, cases properly accommodate the interest in the child’s welfare to the interests of the country of the child’s habitual residence. Often the bulk of the evidence concerning risk of harm will be found in that country and the left-behind parent’s defense to charges of abuse may be more difficult and costly to prepare and present in the country to which the abducter has fled. But in cases of child abuse the balance may shift against return plus conditions. In a comment on “undertakings” …, the State Department has advised that ‘if the requested … court is presented with unequivocal evidence that return would cause the child a ‘grave risk’ of physical or psychological harm, … then it would seem less appropriate for the court to enter extensive undertakings than to deny the return request. The development of extensive undertakings in such a context could embroil the court in the merits of the underlying custody issues and would tend to dilute the force of the Article 13(b) exception.’ The court added that ‘undertakings are most effective when the goal is to preserve the status quo of the parties prior to the wrongful removal. This, of course, is not the goal in cases where there is evidence that the status quo was abusive.’ …”
“Concern with comity among nations argues for a narrow interpretation of the ‘grave risk of harm’ defense; but the safety of children is paramount. Jennifer presented at the summary judgment stage sufficient evidence of a grave risk of harm to her children, and the adequacy of conditions that would protect the children if they were returned to their father’s country is sufficiently in doubt, to necessitate an evidentiary hearing in order to explore these issues fully. The hearing should be held promptly and conducted expeditiously in order to comply with the Convention’s goal of expediting the return of abducted children to their country of habitual residence …” [Slip op. 6]
Citation: Van de Sande v. Van de Sande, No. 05-2831 (7th Cir. December 7, 2005).
Filed in: 2005 International Law Update, Issue 12
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Third Circuit reverses District Court’s denial of father’s petition for return of child from U.S. to Australia under child abduction convention based on father’s lack of consent to child’s permanent change of residence
Five-year-old Torin Baxter and his parents, Mr. Henry Baxter (petitioner) and Mrs. Jody Amanda Baxter (respondent) lived together as a family in the Australian outback. The harshness of their environment made it unsuitable for the child, thereby prompting petitioner’s and respondent’s decision that respondent and Torin should travel to the United States. On September 2, 2003, respondent and Torin began living in Delaware. Within two weeks of her arrival, respondent began an intimate relationship with one Mr. Stidham. Fourteen days later, respondent and Torin moved in with Mr. Stidham, demanding a divorce from petitioner shortly thereafter.
Invoking the Hague Convention on the Civil Aspects of International Child Abduction, [Oct. 25, 1980, T.I.A.S. 11670; 19 I.L.M. 1501], petitioner asked the Delaware federal court to order Torin’s expedited return to Australia. Both Australia and the U. S. are bound by the Convention. One issue was whether petitioner had agreed that respondent’s trip to Delaware was to be a permanent relocation. After a full evidentiary hearing, the court determined that petitioner had consented to Torin’s permanent removal to the U.S.; this defeated his claim that respondent’s retention of the child was wrongful as required by the Convention. Petitioner filed an appeal. The U.S. Court of Appeals for the Third Circuit reverses.
In the Court’s view, the Hague Convention seeks to secure the prompt return of wrongfully removed or retained children and to protect parental custody rights and access. Under Article 3, the removal or retention of a child is “wrongful” where it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and where, at the time of removal or retention, those rights were actually being exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Determining claims of wrongful removal or retention raises four subissues: (1) when the removal or retention at issue occurred, (2) the country in which the child was habitually resident prior to the removal or retention, (3) whether removal or retention breached the custody rights of the petitioner, and (4) whether the petitioner was exercising those custody rights at the time of the removal or retention.
The Third Circuit rules that the District Court had erroneously found that petitioner had consented to the child’s permanent move to the U. S. The record rather demonstrates the couple’s indecision regarding their next permanent residence. The Court further finds that the lower court had not properly addressed whether Torin’s removal breached petitioner’s custody rights, or whether petitioner had been exercising his custody rights at the time of the removal or retention. Respondent claimed that, since their arrival in the U. S., petitioner had “provided no financial support and his only contact with his son consisted of infrequent phone calls.” [Slip op. 6]
The Court holds, however, that the record does show that respondent was in the U.S. for only a short period of time before she told petitioner that she intended to remain in Delaware with Torin. “Reduced contact or lack of financial support over such a short period of time is insufficient under the Convention to demonstrate that a parent has ceased exercising custody rights.” Id. Therefore, there is no evidence that petitioner had abandoned these rights.
The Court further finds that the inquiry does not end with a showing of petitioner’s consent to Torin’s removal from Australia. Rather, if his consent was conditional and respondent had breached those conditions, then a trial court must also examine any wrongful retention claim. Parental consent to the removal of a child to another country for a short period under specified circumstances does not allow the retention of the child abroad beyond those conditions or circumstances. While petitioner did agree to Torin’s visit to the U.S., the Court sees nothing in the record to suggest that petitioner had approved of the child’s permanent retention abroad.
Respondent apparently did not decide to stay in Delaware until she fell for Mr. Stidham. Thus, her decision thereafter was much more than a mere “intervening event,” as the lower court surmised; rather it amounted to a radical departure from her arrangement with petitioner before her trip to Delaware. Petitioner’s consent to respondent’s and Torin’s going abroad was narrow in scope and respondent’s actions reached far beyond it. Therefore, the Third Circuit sets aside the District Court’s finding that petitioner had consented to Torin’s permanent removal from Australia and remands the case for further proceedings.
Citation: Baxter v. Baxter, 2005 WL 2233259; No. 04-3228 (3rd Cir. Sept. 15, 2005).
Filed in: 2005 International Law Update, Issue 9
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In proceeding to enforce Texas damages judgment against mother who abducted child to Russia, English Court of Appeal (Civil Division) reverses dismissal for lack of jurisdiction over defendant since she had taken part in the divorce proceedings where decree had ordered child’s retention in Hague Convention nation though plaintiff had sought damages under Texas family law rather than contempt of decree
In 1990, Lawrence Robert Whyte [plaintiff or the father] married Marsha Whyte [defendant or the mother] in 1990. A child, Nina, was born in January 1995. In September 1995, one of them filed divorce proceedings in the District Court of Harris County, Texas; it led to a final decree in January 1998. The court entered it with both parties’ agreement and accompanied by submission to the court’s jurisdiction. The decree designated both parties as Nina’s “Joint Managing Conservators” but granted the father “primary physical residence” in Texas.
The decree consisted of about 25 pages of the most detailed provisions in relation to Nina’s residence, care and contact with her parents. It specifically provided for Nina’s time with each parent, and her delivery by the one to the other; clause 15 explicitly enjoined either parent from taking Nina to a country not party to the Hague Convention on the Civil Aspects of International Child Abduction, in force for U. S. July 1,1988 [T.I.A.S. 11670]. The clear purpose of that clause is to facilitate control of any breach of the custody orders.
The decree also spelled out sanctions for breach of its terms. For example, Clause 20 provided that a party violating the terms of the decree would be liable for any costs and fees reasonably incurred by the other as a result of the violation. Finally, a note reminded the parties that breach of the order was a contempt of court, punishable by imprisonment.
Flouting the divorce decree in August 1998, defendant exploited one of her periods of agreed custody to abduct Nina to the Russian Republic, a country not one of the over fifty parties to the Convention. She refused to return her. After proceedings in the Russian courts, those courts declined to honor the Texas decree and awarded custody to the defendant.
In desperation, the father had Nina seized in Russia and returned to Texas in December 2001. The defendant’s flagrant defiance of the Texas court order, and the dislocation, distress and trauma that Nina had to go through as a result — having been at the time of the abduction three and a half years old — were obvious to the forum court.
The plaintiff, however, did not proceed against the defendant under the divorce decree’s penal provisions; instead he filed proceedings against her under chapter 42 of the Texas Family Code. That allows for damages for “interference with possessory interest in child”. They may include the costs of recovering possession; “mental suffering and anguish” suffered by the plaintiff because of defendant’s disregard of the court’s order as to possession; and punitive damages in respect of actions done with malice. The Texas court ended up ruling for plaintiff in March 2003. It awarded him as against the defendant $867,219 for the costs of getting Nina back; $500,000 for pain and suffering; and $250,000 in punitive damages, totaling over $1.6 million. The defendant took no part in these proceedings. It is that order that the plaintiff seeks to enforce in the English courts. The High Court of Justice dismissed on the grounds of lack of jurisdiction and plaintiff appealed. The Court of Appeal (Civil Division) unanimously allows the appeal.
The Court points out that “Murthy v Sivajothi [1999] 1 WLR 467 adopted the principle that, where the [party] makes a related claim in the sense discussed in the United States authorities and reflected in our own RSC Ord. 16 r. 8(1)(c), that party submits to judicial jurisdiction to resolve “any question or issue relating to or connected with the original subject matter of the action. Whether a particular claim should be regarded as related in this sense must always be a question of fact and degree.”[¶ 6]
The present Court then declares. “These issues have usually been discussed in commercial or property cases, as was Murthy itself. The principle stated [there] is, however, in my view particularly apt for application in a case within the family jurisdiction, where proceedings may affect [a] wide range of the aspects of the parties lives. And it is particularly apposite in the present case. The [original] Texas decree was, if not all about Nina, then at least to a very large extent about her. She was the subject matter of that action. A breach of the orders about Nina in that action was not merely something relating to or connected with the original subject matter, but actually part of the original subject matter itself.” [¶ 7]
“That the mother, by her defiance of the divorce decree, submitted to the penalties available to the court for breach of that decree is not affected at all by the fact that the father chose to proceed under the expansive chapter 42, rather than confine himself to the more limited recourse provided by the decree itself. Chapter 42 is part of the Texas Family Code, and is clearly recognised in that jurisdiction as an inherent part of the protection to be provided to families who have the misfortune to have their affairs regulated by the courts. It is quite impossible to say that the mother did not submit to that regime when she submitted to the divorce decree that it enforces.” [¶ 8]
“The judge [below] was not pressed with the full force of Murthy, because the case seems to have been presented to him through the medium of an earlier appeal in this court, [2004] EWCA Civ 35, in which an attempt was made to enforce the chapter 42 order against the second defendant, who is the mother of Mrs. Whyte.”
“She had become involved in the divorce proceedings because, as a co owner of property with Mrs. Whyte, she had been required to sign a release of various interests as part of the financial settlement in the divorce. Even if, which this court thought doubtful, she had thereby submitted to those divorce proceedings, she had not done so in any way that made it fair or reasonable to say that she had also submitted to proceedings that related, not to the financial aspects of the divorce, but to the custody of Nina, with which the second defendant was not concerned. That case therefore gives no help in the very different issue that is before us. If that had been made clearer to the judge I am satisfied that he would have seen this case in a different light.” [¶ 9]
The appellate court allows the appeal, declares that the courts of this country have jurisdiction to entertain a claim against the mother based on the chapter 42 decree of the Texan court, and remands the proceedings to the Queens Bench Division.
One of the concurring Justices adds the following observation. “The objection to jurisdiction seems to me to depend on the purely technical point that the father elected to seek the redress to which he was clearly entitled by originating petition under chapter 42 rather than by an application in the divorce proceedings. Had he obtained an order for the reimbursement of his costs and expenses under clause 20 of the consent order the mother would clearly have no ground on which to contest jurisdiction. He might have limited his order under chapter 42 to the reimbursement of the same costs and expenses. That only illustrates how unrealistic it would be to find a submission to the jurisdiction in the first instance but not in the second.” [¶ 12]
Citation: Whyte v. Whyte, 2005 WL 1650632 (CA (Civ Div)), [2005] EWCA Civ. 858.
Filed in: 2005 International Law Update, Issue 9
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In case of first impression, Second Circuit adopts new standard for determining “habitual residence” of child under Hague Convention on Child Abduction
Yossi Gitter (“Yossi”) is an Israeli citizen who moved to the U.S. in 1995. Here he met and, in 1999, married Miriam. Their son, Eden, was born the following year. Miriam is a citizen of both Israel and the U.S. but has spent most of her life in the U.S. Later, Miriam reluctantly agreed to move the family to Israel. In 2002, however, she took Eden to New York and remained in the U.S.
The U.S. has ratified the Hague Convention on the Civil Aspects of International Child Abduction [October 25, 1980, T.I.A.S. No 11670, 1343 U.N.T.S. 89, 51 Fed. Reg. 10,494 (March 26, 1986) (Convention)]. In 2000, the U.S. made the Convention effective as U.S. law by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Section 11601 (2000). Both Israel and the U.S. are parties to the Convention.
In 2003, Yossi sought an order pursuant to the Convention and the Act from a New York federal court compelling Miriam to return their son to Israel. The court, however, ruled that Eden had never become “habitually resident” in Israel because Miriam had only conditionally resided there. Yossi appealed.
Fashioning a new approach in determining the habitual residence of a child under the Convention, the U.S. Court of Appeals for the Second Circuit remands to the district court for reconsideration of the matter in light of the new standard.
The Convention seeks to protect children from wrongful removal or retention. To invoke its protections, the complainant has to show that respondent has “wrongfully removed” a child from a Member State where he/she is “habitually resident” to another Member State.
Unfortunately, the Convention does not define the phrase “habitually resident.” Other Circuits having visited the issue, the Court cites Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). There, the Ninth Circuit recognizes the importance of “intentions” in determining a child’s habitual residence. Further, a court must consider to what extent the child may have become accustomed to its new surroundings. The Court then describes the proper standard as follows:
” … [W]e conclude that in determining a child’s habitual residence, a court should apply the following standard: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child.”
“Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.” [Slip op. 21]
Applying this standard to this case, the Court notes that the parents disagreed as to whether Eden should become habitually resident in Israel. The district court concluded that there was no settled mutual intent on that issue. Yossi acted as if Israel was their one and only residence, while Miriam considered the stay “conditional.” The district court, however, did not make any findings as to what extent Eden may have adapted to Israel and thus acquired his habitual residence there. The Court remands for the district court to make that determination and possibly to correct the judgment accordingly.
Citation: Gitter v. Gitter, No. 03-9299 (2d Cir. January 5, 2005).
Filed in: 2005 International Law Update, Issue1
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As matter of first impression in First Circuit, Court holds that abducting parent can be convicted under federal International Parental Kidnapping Crime Act (IPKCA) for conduct that is not considered criminal under state family law
Fazal Raheman, then living in the U.S., and Saihba Ali married in India in May 1990. They moved to Massachusetts where their daughter was born in 1992. Four years later, a son arrived. The marriage was not going well, though. In 1997, Ali and the children moved into a separate apartment.
Raheman secretly installed a video camera in Ali’s bedroom, had a private investigator follow her around, asked his nephew to move into Ali’s apartment building to spy on her, and tapped Ali’s telephone. In November 1997, he traveled to his former home in Nagpur, India, enrolled his daughter in school there and filed a custody petition in the Nagpur Family Court.
Later he went back to the U.S. Under the pretext of taking the children to a museum, Raheman took them back to India. Ali contacted the police and obtained an emergency custody order in a Massachusetts court. Raheman obtained his own custody order from the Nagpur Family Court.
In July 2001, a federal grand jury indicted Raheman under the International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. Section 1204. It provides in part that “(a) Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with the intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.”
Federal authorities arrested Raheman in the U.S. and convicted him of kidnapping. Raheman noted an appeal. The U.S. Court of Appeals for the First Circuit affirms in part, vacates in part and remands for resentencing.
On appeal, Raheman argued, inter alia, that the evidence failed to show a crime under the IPKCA because the alleged conduct was not criminal under Massachusetts law. Disagreeing, the Court finds that such a prosecution comports with the language and intent of the statute. Massachusetts law does not criminalize any of Raheman’s actions because no proceedings had been pending at that time. This, however, does not prevent Congress from acting on its own basis.
“In 1993, by virtue of its commerce power …, and to ‘deter the removal of children from the United States to foreign countries in order to obstruct parental rights,’ Congress passed the International Parental Kidnapping Crime Act to create a new ‘federal felony offense ….’ H.R. Rep. No. 103-390, at 1 (1993) … The legislative history explains that IPKCA was enacted as a domestic response to issues left unaddressed by international law:”
“‘There is an international civil mechanism relating to these cases, the Hague Convention on International Parental Child Kidnapping* for which Congress passed implementing legislation in 1988. … However, most countries (including India) are not signatories to the Convention, thus leaving individual countries to take whatever legal unilateral action they can to obtain the return of abducted children. Creating a federal felony offense responds to these problems …’” [Slip op. 9-10]
The Court then turns to the issue of first impression in the First Circuit: whether IPKCA authorizes the conviction of a parent for conduct that is not criminal under State law. “That IPKCA looks to state family law for purposes of defining ‘parental rights,’ … does not in any way suggest that the statute depends upon state criminal law to delineate the realm of circumstances through which such rights are transgressed. By prohibiting those situations in which a parent ‘removes a child from the United States … with intent to obstruct the lawful exercise of parental rights,’ … Congress went further than Massachusetts, which does not criminalize such conduct absent a prior court proceeding.”
“Nowhere in the text of the statute or the legislative history does Congress limit the criminal prohibition in 18 U.S.C. Section 1204(a) to only those acts that are criminal under state law. … Congress could have provided for the imprisonment of any person who, in violation of State law, removes a child from the United States. It did not do so, and this court will not infer such a limitation where the statutory language does not support it. …” [Slip op. 12-14]
*[Editorial Note: The legislative history is presumably referring to the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670, in force for U. S. on July 1, 1988].
Citation: United States v. Fazal-ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004).
Filed in: 2004 International Law Update, Issue2
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English Family Court rules that Hague Child Abduction Convention and U.K.’s implementing statute authorize it to order interim arrangements, including possible electronic tagging, to ensure that Irish mother and child she abducted from California remain within English Court’s jurisdiction pending further proceedings
F(ather) and M(other) married in California in 1994 and soon became the parents of C(hild). F who was an American citizen and M, who was Irish, maintained their family home in California until December 1998. In that month, M kept C in Ireland after the end of an agreed holiday there. F filed proceedings against M in the Dublin courts under the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670, eff. U.S., July 1988]. They resulted in a July 1999 consent order for C’s return to California.
M, however, failed to appear at a hearing before the California courts later that month and took no further part in the legal proceedings. Shortly after her arrival in the United States, M re-abducted C, this time to England, where they took assumed names to avoid detection. The California court made an interim custody order in the father’s favor in October 1999.
Four years later M and C were found. Pursuant to a police protection order, the government removed C (who is now nine) from M’s custody and placed C in foster care. Proceedings were instituted in the U. K. Family Court under the Child Abduction and Custody Act of 1985 (CACA). F asked the Court to direct that M and C remain within the Court’s jurisdiction throughout the proceedings.
The Court then addresses the issue of whether a legal foundation exists to permit some sort of arrangements for the interim care of a child in Hague Convention cases. Section 5 of the CACA regarding interim powers provides that: “Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.” [¶ 2]
The Court next perceived a potential clash between the power to give such directions under CACA Section 5 and certain provisions of the Children Act of 1989 (CA). The Court first examines the treaty obligations that Parliament undertook in ratifying the Hague Convention. “The Preamble … recites that its States signatory desire ‘to establish procedures to ensure [the] prompt return to the State of their habitual residence’ of children wrongfully removed or retained elsewhere.”
Articles 1 and 2 read in these terms: “Article 1. The objects of the present Convention are – (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 2. Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.”
The Hague Convention requires that each Contracting Party shall set up a government agency that specializes in its enforcement. These “Central Authorities” “are the building-blocks with which the Convention cements together the internationally protective wall of its member states, now totaling 74 in number. Their function is ‘to discharge the duties which are imposed by the Convention upon such authorities’: see Article 6. Article 7 requires (so far as is relevant for present purposes) that: ‘Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures – … (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures.” [¶¶ 9-10]
From its analysis of Convention obligations, the Family Court concludes that section 5 of the CACA reflects the aim of Convention Article 7(b) in that “[t]he powers are to be used in the interim pending the determination of the application, and the purpose of the power to give interim directions is to secure the welfare of the child concerned or to prevent changes in the circumstances relevant to the determination of the application.” [¶ 14]
Interpreting the broad language of section 5 as allowing a Local Authority (LA) to assist the Court in making interim arrangements for a child, the Court declares. “The scope of section 5, against this background, and in the light of its language, is very broad indeed. Unless therefore there are legitimate and well-founded restraints on its exercise which arise from the consideration of its interrelationship with other statutes and other sources of law, I see no reason in principle why it should not extend to an invitation (such as is in issue in this case) to a Local Authority to assist the court in making arrangements for the child in the interim, including arranging for people with whom, and for a place where, the child may live.”[¶ 15]
The Court also addresses the role of CACA section 9, noting that it does not trespass on section 5 powers. “The purpose of section 9 is thus directly related to the treaty obligations under Article 16, and fits neatly and necessarily with the philosophy of the Convention, that merits disputes should be decided in the court of the country of the child’s habitual residence [i.e. California] upon the child’s return there if and when an Article 12 order for return is made.” [¶ 17]
To aid in its understanding of how Convention obligations and aims can be incorporated into domestic laws and procedures, the Family Court examines the laws of several common law jurisdictions. While finding that laws in Ireland, New Zealand, and Hong Kong are similar to those in England, the Court notes distinct and important characteristics of pertinent U.S. laws. “In America (as I gather from a 1997 publication entitled ‘International Child Abduction: Guide to Handling Hague Convention Cases in US Courts’ written by The Hon. James Garbolino, who is the Hague Liaison Judge for the United States) ‘provisional remedies’ are dealt with on a federal basis by a provision of the International Child Abduction Remedies Act (ICARA), 42 U.S.C. Section 11601.”
[It provides]: “Subject to a reservation prohibiting an order for the removal of a child from the person having physical control of the child unless the applicable requirements of State law are satisfied, the court has power to ‘take or cause to be taken measures under Federal State [sic] law, as appropriate, to protect the well-being of the child involved or to prevent the further removal or concealment before the final disposition of the petition.’”
” … Judge Garbolino furthermore makes the point that the Article 7(b) requirement for Central Authorities ‘to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures’ is interpreted as allowing the Central Authority ‘to call upon the individual State child welfare authorities to provide whatever protection is deemed necessary.’ The placement of children in a foster home is cited as one protective measure to which recourse has been had.” [¶ 21]
After additional research into the laws of Australia and Germany, the Family Court concludes that section 5 of the CACA does fulfill the obligations of the Hague Convention. “In short, the primary submission of Mr. Nicholls [the Court Advocate] was that where domestic legislation is passed to give effect to an international convention, there is a presumption that Parliament intended to fulfil [sic] its international obligations; and that section 5 of CACA did precisely that in terms of the duties which arise pursuant to Article 7(b).” [¶ 25]
The Court next addresses the limits of section 5 and whether other legislation conflicts with it. “In essence, [a section 5 direction] cannot be an order in wardship or under the inherent jurisdiction, nor under either the private or the public law provisions of CA. And it cannot create a care or interim care status for the child, nor an order for care and control, residence, a specific issue or prohibited steps order or any other form of injunction designed to prevent the removal of the child (CA, section 9(5)).” [¶ 36]
“My conclusion is therefore unhesitatingly that section 5 of CACA does enable the court to give directions concerning the manner in which a child’s welfare and whereabouts are to be managed if circumstances require removal from the abducting parent or are otherwise such as to require temporary arrangements to be put in place. CACA (both in regard to Hague and to European [Human Rights] Convention applications) establishes a self-contained code, specific and specifically tailored to the sui generis nature of such applications in our domestic law.”[¶ 39] Finally, in view of M’s suggestion to this effect, this Court in principle can direct the use of “electronic tagging” to make sure that M and C would remain within the court’s jurisdiction.
Citation: Re S (a child) (abduction: interim directions), [2003] E.W.H.C. 3065 (FAM.), [2003], All E.R. (D) 238 (Dec. 12).
Filed in: 2004 International Law Update, Issue1
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European Court of Human Rights holds that Austrian courts’ improper reliance on their own delayed enforcement of U.S. husband’s rights under Hague Convention to return of daughter wrongfully abducted to Austria by its mother violated European Convention on Human Rights
Mr. Sylvester (husband or H) was born in 1953 and is a U.S. citizen living in Michigan. After his marriage to an Austrian citizen (wife or W), Carina Maria (CM), his daughter, entered the world in 1994. W has dual U.S. and Austrian nationality and now lives in Graz, a city in southeastern Austria.
While CM was still an infant, W took her out of the U.S. to live with her in Austria without getting H’s consent. H petitioned the Austrian courts to order CM’s return to the U.S. under the 1980 Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670] to which both the U.S. and Austria are parties. In December 1995, an Austrian court granted his application and the appellate court dismissed W’s appeals.
The following April, a Michigan court granted H a divorce from W by default and awarded him sole custody of CM. H then succeeded in obtaining an enforcement of the return order from the Graz District Court. Despite a search of W’s house, however, the enforcement officials could not find CM.
Meanwhile, in August 1996, W persuaded the Graz Regional Civil Court to set aside the enforcement order and to remand the case to the District Court. The regional court ordered the lower court to determine whether CM’s relationship to H had significantly altered since the time of the original order. H appealed the remand order but the Austrian Supreme Court affirmed the regional court’s ruling.
On the merits, the Austrian courts concluded that CM’s situation had substantially changed, that CM’s well-being was foremost, and that her removal from W would likely cause CM serious psychological injury. During June 1997, officials allowed H several hours of supervised visitation with CM. Six months later, the Austrian courts awarded W the sole custody of CM.
H and CM next applied to the European Court of Human Rights in Strasbourg. They contended that the failure of the Austrian courts to enforce the final return order under the Hague Abduction Convention breached their rights under the European Convention on Human Rights [ECHR] — mainly under Article 8. They sought just satisfaction pursuant to Article 41.
The pertinent language from Convention Article 8 is: “1. Everyone has the right to respect for his private and family life, … 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 41 of the ECHR Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
The Court then applies these directives. “… [I]t must be determined whether there has been a failure to respect the applicants’ family life. The Court reiterates that the essential object of Art. 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective ‘respect’ for family life. … In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.” [¶ 55]
“More generally, a Contracting State’s positive obligations under Art. 8 include a parent’s right to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action. However, the national authorities’ obligation to take such measures is not absolute, since the reunion of a parent with a child who has lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken.”
“Any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Art. 8 of the [ECHR] Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them.” [¶ 58]
“In cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with him or her. In proceedings under the Hague [Abduction] Convention this is all the more so, as Art. 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay.” [¶ 60]
The Court then points out that the Austrian court rulings of August and October 1996 cited the lapse of time and the resulting estrangement between H and CM. “The Court observes that … there is no explanation for the delay of more than two months which occurred before the file was returned from the Supreme Court to the Graz District Court on May 7, 1996. Moreover, such a delay has to be viewed as an important one … ” [¶ 67]
The Court sees no need for it to decide whether W’s 1996 appeal technically prevented the Austrian Government from taking further enforcement actions. “… [I]t is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its positive obligations under Art. 8 of the [ECHR] Convention. At the very least, the courts were under a particular duty to give an expeditious decision on the appeal in question. Nevertheless, it took three and a half months for the Graz Regional Civil Court to decide, on August 29, 1996, to quash the enforcement order of May 8 and to refer the case back to the District Court.” [¶ 68]
“The District Court’s decision, which was upheld by the Graz Regional Court and, on September 9, 1997, by the Supreme Court, shows that the case was ultimately decided [based on] the time that had elapsed. Without overlooking the difficulties created by the resistance of [CM's] mother, the Court finds, nevertheless, that the lapse of time was, to a large extent, caused by the authorities’ own handling of the case. … [E]ffective respect for family life requires that future relations between parent and child not be determined by the mere effluxion of time.”[¶ 69]
“The Court notes in particular that, following the first unsuccessful enforcement attempt of May 10, 1996, [W] apparently changed her whereabouts with the aim of defying the execution of the return order. However, the authorities did not take any steps to locate [W] with a view to facilitating contact with [H].”
“On the contrary, it transpires from the correspondence exchanged from May to December 1996 between the Austrian Ministry of Justice and the United States Department of State that, in the Austrian authorities’ view, it fell to [H's] counsel to take all necessary steps to obtain the enforcement of the return order. … [Nevertheless] an applicant’s omission cannot absolve the authorities from their obligations in the matter of execution, since it is they who exercise public authority.”
In its concluding paragraphs, the Court declares: “Having regard to the foregoing, the Court [unanimously] concludes that the Austrian authorities failed to take, without delay, all the measures that could reasonably be expected to enforce the return order, and thereby breached the applicants’ right to respect for their family life, as guaranteed by [ECHR] Art. 8.” [¶ 72]
The Court also holds that the Austrian Government must pay H euro 20,000 in respect of non pecuniary damage [emotional distress] and euro 22,682.61 in respect of costs and expenses within three months from the date of final judgment.
In a Joint Partly Dissenting Opinion, three judges take issue with the majority’s denial of monetary damages to CM. The majority declares that “The finding of a violation provides sufficient just satisfaction for any non pecuniary damage she may have suffered as a result of the non enforcement of the return order.” [437]
The dissenters strongly disagree. “Although a finding of a violation may in certain cases take on a symbolic value, in the present instance it amounts to reparation at its most frugal. Personally, we do not share the view that, owing to its tender age, the child has not suffered or may not in the future suffer any non pecuniary damage (such as stress or anxiety) of its own, warranting an award of compensation for the violation of Art. 8 of the [ECHR] Convention. …” [437-38]
One of the dissenters also takes aim at H’s small damage award. “I consider the amounts granted in favour of the applicant as mean and beggarly. I believe that the compensation awarded conspicuously fails the test of proportionality between the harm inflicted and the redress afforded.” [439]
For one thing, the delays by the Austrian courts caused H to lose his U.S. job because of his frequent need to shuttle back and forth across the ocean.”The liquidation of euro 20,000 to the applicant as moral damages for pain and suffering, I consider paltry and uncaring. To a person who has had the core of his existence irretrievably gutted by the violation of fundamental rights, … to a victim of atrocity born of the distressed use of the law against him, the majority responded with the award of what, in my view, amounts to an almost offensive trifle.”
“That is hardly the most eloquent idiom to underscore how hallowed the sanctity of fundamental rights is in the eyes of the Court. If neutralising the [Hague] Convention comes so cheap, States may well find it foolish not to have a brave try.” [439-40]
Citation: Sylvester v. Austria, [2003] 37 E.H.R.R. 17, [2003]2 F.C.R. 128, [2003] 2 F.L.R. 210, [2003] Fam. Law 638 (April 24).
Filed in: 2003 International Law Update, Issue11
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