REPUBLIC OF FRANCEIN THE NAME OF THE PEOPLE OF FRANCE
COLMAR DISTRICT COURT
SECOND CIVIL DIVISION
12 Mar 1993 JUDGMENT
Respondent:
Mrs. Shamee, Francoise born in Mennechet, resding at 7 rue
Principale, 67390, Mackenheim.
Represented by her attorney, Mr. Cahn and associates, Attorneys at
Colmar.
Intimate and Plaintiff:
THE DISTRICT ATTORNEY IN THE STRASBOURG DISTRICT COURT
Intimate, and voluntary intervening party:
Mr. Bishara Shamee, residing at 771 Woodbridge Drive, Bloomington
Indiana.
Represented by Attorney Wetzel, attorney at Colmar.
Litigating Attorney Basle, attorney in Paris.
COMPOSITION OF THE COURT at the time of the debates and
deliberations:
Madame Jardel-Lescure, President of the division,
Monsieur Hoffbeck, advisor,
Monsieur Meyer, advisor,
DIVISIONARY CLERK OF THE COURT: Mr. Deparis
DEPARTMENT OF THE PUBLIC PROSECUTOR: To which this file was
delivered: Mr. Lorentz, General Attorney.
DEBATES HELD IN PRIVATE AUDIENCE on 10 Feb 1993.
JUDGMENT GIVEN AFTER FULL ARGUMENT ON BOTH SJDES of the l2th of
March, 1993 delivered publicly by Mrs. Jardel-Lescure, President
of the division,
OBJECT: WRONGFUL REMOVAL OF THE CHILD
Considering that after having observed the wrongful removal
of the child Fareed Shamee to France, the court, referring to Art.
13(b) [WMH FN-1] of the Hague Convention [WMH FN-2] on the terms
of which the judicial authority of the State required could not
order the return of the wrongfully removed child when the person
who opposes his return establishes that there exists a grave risk
that the return of the child exposes him to a physical or
psychological danger or in other words should place him in an
intolerable situation, has ordered a mental examination [WMH FN-3]
of the child Fareed Shamee so as to determine if his return to the
USA will expose him to a psychic danger;
Considering that the doctor GARDONE, to whom the task was
given, deposited her report dated on the 22nd of Septamber, 1992,
that after having gotten acquainted with the judicial file, had
consulted both parties, Bishara Shamee who came from the U.S.A,
for this meeting, and having proceeded to conversations about the
behavior of the child Fareed whose age does not permit a thorough
exchange with the expert, she concluded in these terms;
“The return of Fareed Shamee to his father residing in the
U.S.A. exposes him to a psychological danger not because of
bringing him closer to his father, but due to the fact that, due
to his young age, the separation with his mother, with whom he has
lived alone for over one half of his life, would be for him the
equivalent of bereavement”.
Conclusions of the parties after the expert evaluation:
Francoise Mennechet defendant
The defendant formulates various critiques with regards to the
expert evaiuation and of the unsafisfsctory conditions, according
to her, in which [the evaluation] was made.
She agrees that the expert could not have truly approached
the child who had a difficult time remaining passive during the
consultation between the psychiatrist and the mother.
She maintains her previous conclusions notably in that they
reject the conclusions of the Department of the Public Prosecutor
that requests, based on the HAGUE’s Convention, the immediate
retturn of the child to the U.S.A.
Bishara Shamee, voluntary intervening party:
The father of the child points to Article 3 [WMH FIN-4] of
the HAGUE’s Convention which, according to him, has been plainly
violatgd. He maintains that the recognition of the rights of the
child with respect to international law must be respected and that
it is indispensable that the child maintains links with both of
his parents.
Referring to several preceding cases consisting of similar
cases of wrongful removal of children, he maintains that the grave
risk defined by Article 13(b) of The Convention was not
established [in this case].
He stresses that the behavior of the child during the expert
evalustion demonstrates sufficiently the capricious attitude of
the mother who does everything to detach him from his milieu of
origin.
Consequently he estimates that it is necessary to bring an
end as soon as possible to this situation particularly detrimental
to the child.
Consequently he concludes to confum the present judgment and
asks the court to effect the immediate return of the child to the
U.S.A.
Director of Public Prosecution, plaintiff and intimate:
Tbe Deparment of the Public Prosecutor also supports the
confirmation of tho present judgment.
He emphasizes that according to the terms of the report of
the 14th session of the Hague Conference on Priavte International
Law, the exceptions to the return of the wrongfully removed
children must be interpreted in a restrictive manner if one wants
to avoid that the Convention becomes empty words [i.e.
ineffective]. [WMH FN-5] He makes reference to the Court of
Appeals of Paris who considered, in a similar situation to the one
of the child Shamee, that the risk of peychological troubles of
the children linked to a new change in their living conditions did
not characterize the state of danger nor the intolerable situation
defined by Article 13(b) of The Convention.
DISCUSSION
Considering that the expert evaluation, with regards to which
the defendant formulates completely unjustified criticisms,
results in conclusions free of ambiguity, that after having met
with each of the parents of Fareed in a thorough manner, the
expert then proceeded to several very precise observations about
the attitude of the child in the presence of his mother and then
on his reactions when the mother was preparing to leave the room
and made the aforementioned conclusions, that he stated that the
complete separation between Fareed and his father should not
continue without risks for the child of psychologiral disturbances
linked to a fusional relation with his mother.
Considering that it is concluded that this set of
considerations that the danger of a separation with the mother is,
considering the young age of the child and the circumstances that
brought him to live alone with her for more than a year, clearly
characterized, that this condition experienced like bereavement
would be intolerable for the child;
Considering that the case in point which was ruled on by the
Cottrt of Appeals of Paris in the judgement of March 30th, 1990 is
sensibly different in the fact that it concerns two brothers older
than the young Fareed and that one only mentioned “a new change in
their living conditions”;
Considering that it is so established that if the actual
situation could not persist without damage to tclhe child and if,
through the divorce procedure that opposes the parents, solutions
were to be found to re-establish the father-son relationship to
the best interest of Fareed, his immediate return to the U.S.A.
would be ordered without the reason of psychic danger whicb would
affect him,
that the conditions intended by Article 13(b) of The
Convention being established, it is appropriate to annul the
present judgement by rejecting their conclusions Mr. the Director
of the Public Prosecution and Bishara Shamee;
On These Grounds
According to the HAGUE’s Convention and its 3 and 13(b) Articles:
Nullifies the present judgement ordering the immediate return of
the child Fareed Shamee to his permanent residence in BLOOMINGTON
in the State of Indiana, U.S.A.
Ruling again in its own right, says and judges that there are no
grounds to order the return of the Child Fareed Shamee wrongfully
removed due to the serious Psychological danger that such a return
would entail,
Consequently opposes the Department of the Public Prosecutor,
plaintiff and Bishara Shamee, Voluntary Intervening Party, in
their conclusions. [WMH FN-6]
Footnotes by William M. Hilton, 09 Jun 1993
——————–
1. 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.
2. The Convention on the Civil Aspects of International Child
Abduction, done at the Hague on 25 Oct 1980 [The Convention]
3. Art 13(d): “In considering the circumstances referred to in
this Article, the judicial and administrative authorities
shall take into account the information relating to the
social background of the child provided by the Central
Authority or other competent authority of the child’s
habitual residence.”
4. 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.
5. 34. To conclude our consideration of the problems with which
this paragraph deals, it would seem necessary to underline
the fact that the three types of exception to the rule
concerning the return of the child must be applied only so
far as they go and no further. This implies above all that
they are to be interpreted in a restrictive fashion if the
Convention is not to become a dead letter. In fact, the
Convention as a whole rests upon the unanimous rejection of
this phenomenon of illegal child removals and upon the
conviction that the best way to combat them at an
international level is to refuse to grant them legal
recognition. The practical application of this principle
requires that the signatory States be convinced that they
belong, despite their differences, to the same legal
community within which the authorities of each State
acknowledge that the authorities of one of them – those of
the child’s habitual residence – are in principle best placed
to decide upon questions of custody and access. As a result,
a systematic invocation of the said exceptions, substituting
the forum chosen by the abductor for that of the child’s
residence, would lead to the collapse of the whole structure
of the Convention by depriving it of the spirit of mutual
confidence which is its inspiration. Explanatory Report by
E. Perez-Vera, Hague Conference on Private International Law,
Actes et documents de la Quatorzieme session, vol. Ill, 1980,
p. 426.
6. The decison of this court is contra to the vast majority of
decisons on this issue and in particular the concept that the
abducting parent can, but keeping the child away from its
“Habitual Residence” for a long enough period, succesfully
abduct the child. The English cases have ruled on this point
stating that a party cannot raise an Art. 13(b) defense which
they created. See C v C (Abduction; Rights of Custody);
Court of Appeal (Civil Division); Hearing Date: 14 Dec 1988;
[1989] 2 All ER 465; [1989] 1 FLR 403; [1989] 1 WLR 654.
This decision is, in effect, a ruling on the merits of the
custody case which is not permitted under The Convention.