|
- Findings of fact and
Conclusions of Law
-
 Argentina- through Austria
- Bahrain through Cyprus
- Denmark through Greece
- Hong Kong through Libya
- Malaysia- through Poland
- Scotland through Switzerland
- United Kingdom through Zimbabwe
-
- Listed in this section are case
histories dealing with child abduction. William M. Hilton collected
most of these case histories. I have supplied you with a direct
link to each case history so that you may download a copy of
any case that may assist you in the return of a child. Mr. Hilton
was an expert on matters dealing with the Hague Convention on
the Civil Aspects of International Child Abduction.
-
- Many of the following cases have
additional comments by Mr. Hilton that are relevant. The Committee
for Missing Children is adding this section to our website as
a means of consolidating the cases Mr. Hilton has collected by
country. While we will add cases from other sources, this work
is, for the most part, the result of Mr. Hilton's efforts, which
are considerable. We hope this consolidation by country will
make it easier to find the case law you require.
-
- If any one finds any errors please
contact me at findthekids@compuserve.com
or call 678-376-6265.
- Decisions
From The Courts Of Other Countries: Click on Search for
Judicial Decisions. If you know the information about the
case you want to access, fill in the information. If you want
to search for a case, but do not have information, just click
on search. Once you find a case you want to read or print out
you must register. Click on the case you want to register. You
may also enter a phrase such as "habitual residence"
and it will retrieve all cases that use that phrase. You will
have to play with this, but it has over 430 cases.
-
-
- Notes of interest:
-
- HABITUAL RESIDENCE: WMH Comment: The issue of "Domicile"
and "Habitual
Residence" are frequent topics of discussions in cases involving
The Hague Convention.Nearly all of the cases cite In Re Bates,
No.CA 122.89, High Court of Justice, Family Div'n Ct. Royal Court
of Justice, United Kingdom (1989). In Bates, the court held the
following: "It is greatly to be hoped that the courts will
resist the temptation to develop detailed and restrictive rules
as to habitual residence, which might make it as technical a
term of art as common law domicile. The facts and circumstances
of each case should continue to be assessed without resort topresumptions
or pre-suppositions". See also Friedrich v. Friedrich (6th
Cir. 1993) 983 F.2d 1396
-
- GRAVE RISK:
Found in Friedrich v Friedrich (6th Cir. 1996) 78 F.3d 1060
at 1069: "[W]e believe that a grave risk of harm for the
purposes of the
Convention can exist in only two situations. First, there is
a grave
risk of harm when return of the child puts the child in imminent
danger
prior to the resolution of the custody dispute-- e.g. returning
the
child to a zone of war, famine, or disease. Second, there is
a grave
risk of harm in cases of serious abuse or neglect, or extraordinary
emotional dependence, when the court in the country of habitual
residence, for whatever reason, may be incapable or unwilling
to give
the child adequate protection."
-
- Intolerable: "The word "intolerable" is
so strong that by its very
meaning and connotation it sets the hurdle high". ("S"
(A Child) [UK 2002] Case No:
B1/2002/0795 & 0801)
ONE YEAR FILING DEADLINE: WMH Comment: It is to be noted
that the mere making of the request for return to the Central
Authority is not sufficient. An action must be commenced by the
filing of a petition in the country where the child has been
taken within one year of its removal from the child's habitual
residence. Query: Is it possible to have this period stayed where
the abducting parent had concealed the child for a period longer
than a year? See Curtis v Curtis (Miss. 1990) 574 So.2d 24, 29-30
-
- UCCJA:
WMH Comment: The UCCJA is not a reciprocal law. See the Prefatory
Note to the Master Addition of the UCCJA: "The Act is not
a reciprocal law. It can be put into full operation by each individual
state regardless of enactment of other states."
-
- RIGHTS OF CUSTODY: Where wrongful retention was alleged, it
needed to be established for the purpose of Art 3 of the Convention
firstly, that at the time when the application was before the
court, the retention must then be in breach of rights of custody
attributed to a person under the law of the place where the child
was habitually resident immediately before the retention.
-
- ACCESS:
WMH Comment: The plain language of The Convention states that
steps shall be taken to ". . . make arrangements for organizing
or securing the effective exercise of rights of access . . ."
and that the Central Authority shall " . . . take steps
to remove, as far as possible, all obstacles to the exercise
of such rights [and] either directly or through intermediaries,
may initiate or assist in the institution of proceedings with
a view to organizing or protecting these rights." The authority
therefore exists in both The Convention and ICARA to implement
access arrangements.
-
- CONCEALMENT: WMH Comment: The ruling in MEREDITH v MEREDITH
"appears to be the first case that holds that concealing
a child does not cause the place of concealment to become the
habitual residence of the child. (see a UCCJA case, CURTIS v
CURTIS (Miss.1990) 574 So.2d 24 for a discussion of this point".
|