Findings of fact and Conclusions of Law   Scotland through Switzerland

SCOTLAND

SCOTLAND-CANADA: (1986) (Return denied) KILGOUR v KILGOUR. (In Scotland, The Child Abduction and Custody Act of 1985) (In Canada, The Children's law Reform Act of 1982) Mother takes the children to Scotland. Court rules against the return, stating that "I do not however consider that these actions or their consequences are controlled by the Convention in the present case, having regard to the date from which the Convention came to have the force of law in the United Kingdom" Children taken on or about January 1986. The Convention went in to affect between Canada and United Kingdom on August 1, 1986. SCOTLAND-CANADA: (1987) (Return ordered) VIOLA v VIOLA. Mother took the child to Scotland. The court ordered the child back to Canada. SCOTLAND-AUSTRALIA: (1987) (Return ordered) LAMBERT v LAMBERT. Father took child to Australia. Judge ordered the return to the mother in Scotland. SCOTLAND-AUSTRALIA: (1993) (Return Denied) (Consent) ZENEL v HADDOW. The mother took the child to Scotland. The father applies for the return under the convention. The mother and father were not married. The lower court ruled that the father had consented to the mother and child's return to Scotland if things did not work out. The decision of the court of First instance was upheld on appeal. SCOTLAND-CANADA: (1993) (Return ordered) THOMPSON v THOMSON. Mother took child to Canada from Scotland. Child is ordered back to Scotland. The Court gave interim custody to the mother. (See Mr. Hilton's footnote) (See below) SCOTLAND-CANADA: (1993) (Return ordered) THOMSON v THOMSON. This is an appeal of the above case where the mother was ordered back to Scotland with the child. The appeal was dismissed with costs. Child is to be returned forthwith. The court indicated that the four month interim custody given to the mother was not justified. (See below) SCOTLAND-CANADA: (1994) (Return ordered) THOMSON v THOMSON. On appeal to the Supreme Court, from the Court of Appeal for Manitoba. The appeal was dismissed and the child was ordered returned to Scotland immediately. This was the first case to be decided by the Supreme Court of Canada under the Hague Convention. SCOTLAND-USA-UNITED KINGDOM: (1998) BUCHANAN v BUCHANAN. While the mother was in the hospital, the father took the children to Edinburgh, Scotland. The mother petitions the court to "sist the whole proceedings which had been raised in Scotland". The court ruled in favor of the father, determining that Scotland was the children's habitual residence and not New York, USA. "There fore the court refused the mothers motion to sist the present proceedings in the Court of Session".

SOUTH AFRICA

SOUTH AFRICA-CANADA: (2000) (Undertakings) SONDERUP v TONDELLI. The mother took the child to South Africa. The father applied for her return under the convention. The High Court ordered the return. The mother appeals to the Constitutional Court of South Africa. The court upheld the appeal in part. They issued a new order with undertakings. The child is to be returned if the warrant for her arrest is lifted by the Court in Canada. There were other undertakings. Rather extensive undertakings that would allow the mother to return with the child without fear of arrest. SOUTH AFRICA-ISRAEL-USA: (1992) COHEN vs COHEN, see ISRAEL-USA

SPAIN

SPAIN-USA: (1989) (Return ordered) NAVARRO v BULLOCK. The mother took the children to the United States form Spain. The father applies for their return under the Hague Convention. The court ordered the return of the children to Spain. The court found that the mother had concealed the children from the father for a total of two years four months. The court also found that the mother placed the children in an absolutely untenable position. The court was very concerned about the "psychological harm" the mother may have brought upon them by two wrongful detentions as well as a lack of bonding with the father. SPAIN-USA: (1991) (Return ordered) SANCHEZ RENOVALES v ROOSA. The mother took the children to the United States for a visit with family. The mother informed the father that she was not returning with the children. The father applies for their return under the Hague Convention. The court found that the habitual residence of the children was Spain and the removal and retention were wrongful. (See WMH footnote 11, removal was not wrongful, just the retention SPAIN-USA: (1995) (Return denied) (Acquiesced) SCHROEDER v PEREZ. The mother took the child to Ohio, USA with the permission and knowledge of the father. The father made no support payments for either the mother or child. The father knew, at all times, the whereabouts of the child, but made no effort to visit. The father informed the mother that he was in love with another woman and that he did not want her to return to Spain. The court ruled that the retention was not wrongful and that the father had acquiesced to the mother and child living in Ohio. SPAIN-USA: (1996) (Return ordered-Twice) CARO v SHER. In 1993 the mother takes the children to the United Sates for vacation which she was allowed to do by agreement with the father and the court. The mother filed for divorce and custody in the U.S and retained the children there. The father filed for return to Spain. Following a hearing, the trial judge ordered the children returned to Spain holding that Spain was the habitual residence. There was no appeal and the children returned to Spain. In 1996 the mother took the children to the U.S. for vacation and once again informed the father she would not be returning with the children. The father files for their return again. The court ordered the return to Spain.

SUDAN

SUDAN-UNITED KINGDOM: (1999) (Return ordered) (Non-Convention Country) (Muslim Law) the mother took the three children to England. The father applies for their return. The court orders the children returned to Sudan. The mother appeals, the appeal is dismissed. Court held that "the application of Muslim law to this Muslim family was appropriate and acceptable".

SWEDEN

SWEDEN-ISRAEL: (2001) (Return Ordered) I.N. v A.S. The father took the child from Sweden to Israel. The mother files for the return. The court ordered the return. Case was handled in six days. (See comments by Mr. Hilton) SWEDEN-POLAND-USA: (1995) (Return ordered) RYDDER v RYDDER. The mother took the children to the US. The father applies for their return. The court rules that Poland is the habitual residence and orders the children returned. The mother appeals. The appeals court affirmed the lower court on the return, but they reversed and remanded the award of fees and legal costs to be reduced in accordance with their opinion. SWEDEN-UNITED KINGDOM: (1990) (Return denied) SHAMSI v HEIJKENSKJOLD-SHAMSIE. The mother traveled to Sweden to visit. The mother informed the father that she was going to remain in Sweden. The father applies for the children's return. The court found that the retention of the children was unlawful and that the father had been denied his custodial rights. However, the court denied the return of one child who had reached the age of maturity and had expressed a desire to stay in Sweden. The other child's return was denied because the court felt that by removing the younger child from his sister and mother would cause a risk to his physical and mental health. (Return ordered for the son (age 9) denied for the daughter (age 13) The father appeals to the Sundsvall Administrative Court of Appeal. The court affirmed the lower court and refused to return the older daughter to the father. The court overturned the lower court's order not to return the younger boy to his father in England. The child is ordered returned. SWEDEN-UNITED KINGDOM: (1997) (Return to U.S. denied in Sweden, return to Sweden ordered in England) The mother takes the children to Sweden. The father applies for their return. Return denied under article 13(b). The father files an appeal and the appeals court reserved its judgement. The father then abducted the children from Sweden and was stopped at the airport in England. The father applies to the English court for the return of the children to the U.S. The mother applies for their return to Sweden. The English court ordered the children returned to Sweden. The father did not seek a stay or appeal. He stated he would wait for the Appeals court decision in Sweden. (See Mr. Hilton's extensive footnotes on this case) SWEDEN-USA-POLAND: (1995) (Return ordered) RYDDER v RYDDER. The mother took the children to the US. The father applies for their return. The court rules that Poland is the habitual residence and orders the children returned. The mother appeals. The appeals court affirmed the lower court on the return, but they reversed and remanded the award of fees and legal costs to be reduced in accordance with their opinion. SWEDEN-USA: (1996) (Return ordered, twice) (Note from U.S. Central Authority) JOHNSON v JOHNSON. This is a note from the United States Central Authority to the Swedish Central Authority in regards to the case of Amanda Johnson. Twice, the child was ordered returned to the United States. First by the Lansratten Administrative Trial Court and than by the Karnmaratan Administrative Appeals Court. The following case is the appeal to the Supreme Administrative Court. SWEDEN-USA: (1996) (Return denied on appeal) JOHNSON v JOHNSON. Mother appealed to the Supreme Administrative Court. The court rules that the child's habitual residence was Sweden and the return was denied. SWEDEN-USA: (1996) JOHNSON v JOHNSON. (From the Embassy of the United States to the Swedish Ministry of Foreign Affairs, Note # 064) "Focusing on the Swedish law of "hemvist", the Regeringsratten based its decision on the grounds that Amanda had been living in Sweden for a little over two years, that she had adapted to life in Sweden, and that the 1993 Virginia custody order accorded her mother a greater number of years of primary custody than her father. Such reasoning turns the Convention on its head by rewarding the very type of conduct that it is designed to deter. This decision permits a parent wrongfully to retain a child for the purpose of re-opening a custody proceeding in a more sympathetic jurisdiction, whereas the Convention requires parents to resolve custody disputes in the child's place of habitual residence or the country of original jurisdiction". "United States considers Sweden to be in violation of its obligations under the Hague Convention. The decision of the Regeringsratten will not only discourage the voluntary settlement of child custody disputes between citizens of the United States and Sweden, but it will also tend to discourage voluntary settlement between parents of all Hague Convention Contracting States". The United States intends, therefore, to recommend that the agenda of the 1997 Special Commission of the Permanent Hague Conference include a discussion of habitual residence and joint custody under the Hague Convention for the purpose of reaching an agreement among Contracting States not to support Sweden's interpretation of these terms. In the meantime, the United States strongly urges the Government of Sweden to amend the 1989 Enforcement Law, Sweden's implementing legislation for the Hague Convention, to remedy the inconsistency between Sweden's hemvist law and its obligations under The Hague Convention, and to take all other necessary steps to correct the Regeringsratten decision of 9 May 1996. (Please read the entire note) SWEDEN-USA: (1996) JOHNSON v JOHNSON Ministry of foreign Affairs response to Note # 064. (This is what you would expect) SWEDEN-USA: (1997) JOHNSON v JOHNSON. The mother appeals the Virginia trial court's decision granting sole custody of the child to the father. The appeals court affirms the trial court's decision. SWEDEN-USA: (1998) (Return denied) (Habitual residence) BENSON v BENSON. The mother retained the children in Sweden. The father applied for the transfer of the four children to the U.S. the court ruled that the habitual residence of the children is Sweden. The transfer was denied. SWEDEN-USA: (2000) (Return Ordered, Return Upheld on Appeal) CSOKA v SCOTT-ROBSON. The superior court ordered the child returned to Sweden, The mother appeals the decision of the superior court. The appeals court states" We find no reasonable probability that petitioner will prevail on appeal on her claim that the child will be exposed to 'a grave risk of harm' if the order is affirmed, or on any of her other claims. We also find that she has adequate legal forum in the Swedish courts" SWEDEN-USA: (2002) (Return Ordered) (Undertakings) DANAIPOUR v McLAREY The mother takes the children to the USA in violation of a court order not to remove the children. The mother claims sexual abuse of the girls by the father. The District court found reason to believe that there was some abuse of the younger girl, but ordered the return with a list of 10 undertakings. The mother appealed the court's order of return. The Court of Appeals for the First Circuit issued a stay of the District Court's order until they could hear the appeal. The Appeals Court ruled the District Court erred by issuing undertakings with the expectation that the Swedish courts would simply copy and enforce them. The undertakings that were ordered by the District Court were invalid and there fore the return order cannot stand. "The District courts order for return is reversed and the case is remanded for proceedings consistent with this order".

SWITZERLAND

SWITZERLAND-AUSTRALIA: (1988) (Return ordered) GSPONER v JOHNSTONE, Child abducted to Australia by his mother. Lower court orders the child returned to Switzerland. Mother appeals. Appeal dismissed. SWITZERLAND-UNITED KINGDOM: (1988) (Return denied by lower court) (Return ordered on appeal)(Age of maturity) RAJARATNAM v RAJARATNAM. The mother took the two children to Switzerland. The father asked for the return of the children under the Hague Convention. The lower court denied the fathers petition bases on Article 13, Paragraph 2 (Age of Maturity). The father filed an appeal. The High Court reversed the lower court and ordered the return. The mother appeals to the Supreme Court of Appeals. The court dismissed the complaint on the merits. SWITZERLAND-USA: (1989) (Return ordered) HAEFELI v WARREN. The father keeps the child in England following a scheduled visitation. The father takes the child to Israel, Egypt, and the United States. The court ruled that the child was wrongfully removed and ordered the child returned to Switzerland. SWITZERLAND-USA: (1990) (Return denied) Viola v Viola. The mother took the child to Switzerland for a visit. The father was to follow at a later date. While in Switzerland, and before the father arrived, the mother filed for divorce. The father informs the court of his intention to apply for the return of the child under the Hague Convention. The trial court denied the fathers application for return. An appeal was filed against this decision. The appeals court denied the return. "A return of the child at present time would be connected with the serious danger of physical or mental damage for the child". SWITZERLAND-USA: (1990) (Return denied) (Habitual residence) MOORE v MOORE. The mother took the child to Switzerland for a visit with the intent of keeping the child there. The father brings the child back to the United States. Under the Hague Convention, the mother sought an emergency ex parte hearing with the court asking that custody be returned to her. The court finds that the habitual residence of the child was Georgia, USA. (Note, DCT: There is confusion as to how the child got back to the U.S. Did the mother return with the child or did the father bring the child back to the United States?) SWITZERLAND-USA: (1991) (Jurisdiction) (Return ordered, child not present) AUBRY v AUBRY. The mother took the child to Switzerland without the father's knowledge. The father asked the U.S. court for custody and the return of the child. The court must determine if they can make such an order and do they have jurisdiction in this matter. The court found that it did have jurisdiction over the child. The court gave temporary custody to the father and ordered the mother to return the child to the father. The mother was served with this order in Switzerland. (See Mr. Hiltons footnotes) SWITZERLAND-USA: (1992) (Return ordered) KOROWIN v KOROWIN. The mother took the child to Switzerland for a month long visit. After one week, the mother decided she was not going to return to the United States with the child. The court ordered the child returned to the United States. SWITZERLAND-USA: (1998) (Return denied by Swiss court) (Father abducts while his appeal is pending) ("Self-help") ROWAN v ROWAN. The mother takes the child to Switzerland for a visit. She informs the father that she will not be returning to the United States. The father applies under The Hague Convention for the child's return. The trial court denies the return. The father appeals the trial court's decision. The decision was upheld by the intermediate court of appeal. The father then appealed to the highest court in Switzerland. While on appeal to the high court, the father abducts the child back to the U. S. The mother applies for the child's return to Switzerland. The U.S. Court stayed any further actions for 90 days. (See Mr. Hilton's footnotes). SWITZERLAND-USA: (1999) (Return Denied) (Habitual Residence) MORRIS v MORRIS. The father took the child from Switzerland to the United States without the mother's knowledge. The mother applied for the return of the child under the Convention. The court ruled that the habitual residence of the child was Colorado and denied the petitioners motion. Comment by the judge: "I stress, however, that my finding of no wrongful removal has no bearing upon the ultimate issue of custody. My decision simply determines that a court of Colorado, instead of a Swiss court, will be making the ultimate decision with regard to custody".