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Published online by Cambridge University Press: 06 June 2012
Where a pregnant woman travels and subsequently gives birth to a child abroad, should the left behind father be able to petition for the ‘return’ of his child under the 1980 Hague Convention on the Civil Aspects of International Child Abduction? An affirmative answer would not only presuppose that the abduction of the child had been in breach of the father's actually exercised rights of custody, but would also depend on which country, if any, the child was habitually resident in immediately before the ‘abduction’.
1 Perez Vera, E., Explanatory Report on the 1980 Hague Child Abduction ConventionGoogle Scholar, para 66.
2 ‘The removal or the retention of a child is to be considered wrongful where – 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.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.’
3 Art 5(a).
4 Perez Vera (n 1) para 66; de Steiger, WExplanatory Report on the 1961 Hague Protection of Minors ConventionGoogle Scholar, 13.
5 W. de Steiger (n 4) 13–14.
6 The issue of wrongful removal of newborns appears to raise fewer difficulties. This is because the place of the child's (physical) residence often coincides with the actual residence and intention of at least one of his custody holders and divorcing habitual residence from its factual roots would be an incentive to child abduction. The newborn baby is therefore usually considered habitually resident in the country in which he was born. For an example of case of a child born in the country of his parents' matrimonial home, see Enrique Nunez-Escudero v Stephanie Rose Tice Menley, 58 F 3d 374 (8th Cir 1995). In this case the married Mexican father and American mother, who resided in Mexico, had a child there. Less than two months after the birth, the mother took the baby to the USA. The mother, who claimed she had had no intention of remaining in Mexico but was a virtual prisoner there, argued that an infant's habitual residence followed that of his mother and that coerced residence could not be habitual residence. The Court of Appeals stressed, at p 379, that the baby had been born in Mexico and had lived only in Mexico until the mother fled to the US, adding that ‘to say that the child's habitual residence derived from his mother would be inconsistent with the Convention for it would reward an abducting parent and create an impermissible presumption that the child's habitual residence is wherever the mother happens to be.’ For a case in which the parents did not live in the same country, but had actually planned to create a matrimonial home in the country of refuge, see the German appellate decision made by the Oberlandesgericht Saabrücken, 2. Senat für Familiensachen, 9 UF 112/10, 5 November 2010. In this case, the father was habitually resident in Germany. The mother's residence was not entirely clear but she lived mainly in Belgium where she had a valid residency permit and, despite numerous trips there, she had no legal right to live in Germany. The parents, who were married, had talked about living together as a family in Germany. The child, a girl, was born in Belgium on 24 August 2009. When the child was about a week old, the father unilaterally took her to Germany. At first instance, the family court rejected the mother's return petition on the ground that the baby had, at the time of her removal, no habitual residence in Belgium (because of she had only lived in Belgium a few days and the parents had a settled intention to move to Germany). The Court of Appeal (OLG) held on the contrary, at para 28 that the child had a habitual residence in Belgium immediately prior to the removal (because the child's residence in Belgium would be and was, according to the joint intentions of the parents, for an indeterminate duration) and upheld the mother's appeal.
7 In other areas of the law, some first instance decisions have admitted that physical presence is not necessary to establish habitual residence: see Re JS (Private International Adoption) [2000] 2 FLR 638; B v H (Habitual Residence: Wardship) [2002] 1 FLR. 388; Re P (Children), sub nom P v P [2007] 2 FLR 439. This tendency must though now be considered in the light of the Court of Appeal's decision in SH v HH [2011] EWCA Civ 796: ‘The wardship in relation to SH is discharged because there is no jurisdiction over a child who is not and has never been habitually resident or present here’ para 52, per Thorpe LJ.
8 See also Re F (Abduction: Unborn Child) [2006] EWHC 2199 (Fam) [2007] 1 FLR 627: ‘Now of course residence is not lost by temporary absence but there must be some physical presence’, [2007] 1 FLR 627 para 8 630. Although also seized after the alleged wrongful retention of a child born in a country to which the mother had gone whilst pregnant, this case differs from the previous two authorities in that the starting point of the retention was much later, when the child was 11 months old, thus reinforcing the legitimacy of a factual approach.
9 W and B v H (Child Abduction: Surrogacy) [2002] 1 FLR 1008 para 25. The children were found to have no habitual residence in England either as ‘although they are with H who in English law is their mother, they have no biological connection with her. They have always been intended to be American children and their future in that regard remains wholly undecided. On the singular facts of this case I have come to the conclusion that at the moment these children have no place of habitual residence and I so find’, ibid.
10 ibid para 101.
11 Re G (Abduction: Withdrawal of Proceedings, Acquiescence, Habitual Residence) [2007] EWHC 2807 (Fam), 2007 WL 4190656, para 99.
12 As the mother did not contest the applicability of the Convention to her eldest daughter, the court of cassation did not discuss the habitual residence of the five-year-old.
13 Art 5 provides: ‘For the purposes of this Convention – a) ‘‘rights of custody’’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; …’.
14 The French notion of domicile differs markedly from the common law understanding of the term, see Schlosser, P, Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice, signed at Luxembourg, 9 October 1978, OJ C 59, 5 March 1979Google Scholar para 71ff. For a discussion of the close proximity of both notions under French law, with résidence being a factual notion and domicile a legal concept, Hammje, P, Répertoire de Droit International (Dalloz 2003)Google Scholar V Domicile, specifically para 17ff.
15 «en ordonnant… le retour immédiat de l'enfant… au domicile de son père sis aux Etats-Unis d'Amérique, au motif que la résidence habituelle de l'enfant s'y trouvait pour cela qu'avait sa naissance ses parents y avaient fixé leur domicile, la cour d'appel… a statué par des motifs inopérants»
16 This is not to say that an in utero abduction had taken place. It is generally considered that the Convention does not apply to such cases; see Re F (Abduction: Unborn Child) [2006] EWHC 2199 (Fam) [2007] 1 FLR 627 para 5 ‘Dr F acknowledged that, given the state of domestic law, he would not make out a case of wrongful removal. In that I am sure he is right. Our law generally confers no independent rights or status on a foetus and in my judgment it is not possible in law to abduct a foetus so as to constitute a wrongful removal within the terms of Art 3 of the Hague Convention.’ See also the case which gave rise to the Supreme Court of Israel's decision of 3 June 2009 in Leave for Family Appeal 2338/09 P v P (available at http://www.incadat.com/index.cfm?act=search.detail&cid=1037&lng=1&sl=1).
17 In the 370 words used to discuss the place of residence of the child, the word ‘habitual’ (habituelle) does not appear once.
18 So that the stay in France beyond that date was wrongful.
19 «Le lieu de naissance de l'enfant est le fait conjugué du hasard et de la seule volonté de la mère à demeurer sur le sol français.»
20 Whilst newborns have all five senses, their vision is very limited, with an ability to focus only at very close range (the size of somebody's arms holding them).
21 cf CJEU in C-497/10 PPU Mercredi v Chaffe [2012] Fam. 22 para 55: ‘An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent.’
22 cf the requirement of voluntariness in the establishment of a habitual residence.
23 Should a return to the habitual residence of the family not be in the best interest of the individual child, the Convention's exceptions will apply.
24 cf the various arguments developed by the Cour d'appel de Lyon, albeit in the course of a discussion of a possible art 13(1)(b) exception. The court had adopted a very critical stance of the attitude of the mother stating most forcefully ‘the behaviour of the mother is gravely dangerous as she has wrongfully distanced the children from their father and has led father and authorities to face the absolute power that she considers to be hers as the mother, thus showing anything but her understanding of her parental responsibilities.’
25 In medical terms, a newborn is a baby until the age of 28 days—Mosby's Medical Dictionary (8th edn, Elsevier, 2009).
26 Art 3 in fine, see (n 2).
