Wright v Gueriel [1993] [France] Tribunal de Grand Instance Abbeville(Somme) No 506/931
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TRIBUNAL DE GRAND INSTANCE
ABBEVILLE (Somme)
JUDGMENT OF OCTOBER 6, 1993
No 506/93
PLAINTIFF:
Mr Robert WRIGHT, born 19 January, 1959 in the BRONX, NEW YORK,
unemployed, US citizenship, living at 3285 Avenue, Bronx, New York
10465, USA.
Represented by the firm of VAN MARIS, DUPONCHELLE and HUCLEUX,
barristers of Abbeville.
Assisted by Mr CORNEC, “Advocat Plaidant” Solicitor, Paris
DEFENDANT:
Mrs Sabine Madeleine Fernande GUERIEL, wife of Mr Wright, born
September 4, 1964 at ALLENAY (Somme), living at 102 rue Torniere
Represented by the firm of FIRMIN, barristers and solicitors of
Abbeville.
MEMBERS OF THE TRIBUNAL
During the hearing
President : Mr VELY
1st Judge : Mr LEMESLE
Judge : Miss HAUDIN
Clerk of the Court : Miss BULTEZ
MINISTERE PUBLIC
to whom the case had been communicated, represented by Mr GREVIN,
substituting for the Procureur de la Republique
HEARING:
Public hearing 22 September, 1993, after which the tribunal retired to
consider the case, in accordance with the law.
JUDGMENT
“Contradictoire” contested, at first instance, announced publicly
October 6, 1993 by the first Judge, Mr LEMESLE.
Signed by Judge LEMESLE for the President, and by Miss CROGUENNEC,
Clerk of Court.
Procedure:
The recital of the facts, the procedure and the parties claims has
been set out in the judgment given on August 26 by the present
Tribunal to which reference should be made.
Since that last decision, the following events have taken place:
– The Family Court Judge of the Tribunal de Grande Instance at
Abbeville was persuaded to order a delay to be in force from 23
September, 1993 until the Tribunal announces its decision in the
present case, on the basis of Article 16 of the Hague Convention.
– Mrs GUERIEL has made a deposition recalling her previous argument
and commenting on the testimonies lodged by her, in which she sought
to show the abnormal character of Mr WRIGHT, which put in danger her
life and the lives of her children. Concluding that the convention
should not apply and that Mr WRIGHT’s claim should be non-suited, she
requests that he be required to pay compensation of 10,000 FF, based
on Article 700 of the new Code of Civil Procedures.
– Mr WRIGHT in turn canvassed the evidence in his favour and concluded
with an opposing claim. He asks the Tribunal to disallow from the
hearing, on the grounds of lateness, the grounds and evidence of his
adversary. He stresses that the depositions of articles 14 and 15 of
the Civil Code have no bearing on the case, since the Tribunal does
not decide the custody of the children in the context of the
litigation under consideration, which concerns exclusively the
application of the Hague Convention. He maintains that he has acted in
a timely manner in this regard. He disputes the probative value of the
testimonies of the defendant, which concern only the relationship
between the couple, and do not allow consideration as to whether there
might exist any danger in the return of the children to New York;
He seeks an order for the return of the children be ordered with
provisional execution (“execution provisoire”) and asks that Mrs
GUERIEL be required to pay compensation of 10,000 FF in accordance
with articles 700 of the new Code of Civil Procedures and 26 of the
Hague Convention;
At the hearing, the Public Minister shared his observations according
to which the jurisdiction of this Tribunal is not contestable; that
the Hague Convention is a “couperet “(literally “chopper”) convention
prohibits the Tribunal any power of investigation, that the Convention
clearly applies in this particular case, the Tribunal having only to
assess the evidence of the defendant pursuant to article 13(b) of the
Convention, while at the same time he observed to the Tribunal that if
Mr WRIGHT’s violence against his children had been real, Mrs Gueriel
would not have failed to involve the American judicial authorities and
the police, which she did not do;
DISCUSSION:
About the question of communication of the grounds and evidence
(“pieces et movens”):
Whereas according to article 15 of the New Code of Civil Procedure:
“The parties obliged to let each other know in good time the arguments
and evidence on which they are basing their claims, the elements of
proof that they are producing and the elements of law which they are
invoking, so that each can organize his defense”; that article 132 al.
1 of the New Code of Civil Procedure specifies that the party which
presents evidence is obliged to communicate it to every other party in
the case;
Whereas the judgment of 26 August 1993 given by the present Tribunal,
having referred the matter back for hearing on the 22 September 1993,
specified that in the intervening period the parties could exchange
their grounds and documents; that no closure order (“ordonnance de
cloture”) had been established in view of the brief period of time
between the two hearings; that the final conclusions submitted by the
defendant contained no new grounds beyond those developed during the
hearing on August 12, 1993; that, in reply, Mrs Gueriel produced for
the first time certain evidence in support of her claims; that it
appears throughout that Mr WRIGHT was able to make the final
submissions, as much to contest the defendant’s grounds as to contest
the credibility of the evidence.
Whereas, the consequence of the contradiction principle (“le principle
de la contradiction”) has been respected and applied; that there are
grounds to oppose the exclusion of late material.
On the Application of the Hague Convention
Whereas the plaintiff claims that according to the laws of the State
of New York, custody of the children is exercised in common by the
parents; that it is otherwise established that Mrs GUERIEL left to
settle in France without the consent of her husband; that by so doing,
Mrs GUERIEL instigated an illegal abduction of the children in the
sense of article 3 of the Hague Convention;
Whereas, further, article 16 of the Hague Convention states that,
after having been informed of the illegal abduction of a child or his
non-return pursuant to article 3 the judicial or administrative
authorities of the contracting country where the child was taken or
detained cannot make a custody decision until it has been established
that the conditions of the present convention for the return of the
child are not met, or until a reasonable period of time has passed
without there having been a request for the application of the
convention;
Whereas, as a result, the local Family Court Judge, although called
upon by Mrs GUERIEN before the action undertaken by Mr WRIGHT in the
present Tribunal, no longer has the authority to decide on provisional
measures, including notably the determination of the address of
habitual residence of the children, in the context of a
non-conciliation order (“ordonnance de non-conciliation”), until the
Tribunal has decided on the merits of the action to apply the
Convention; and whereas the Family Court Judge has also given a
delaying order (“ordonnance de sursis”) to be decided in this matter;
Whereas, since the the action of Mr WRIGHT has, to some extent,
priority over the request for divorce for fault initiated by Mrs
GUERIEN, the claim of the latter will be dismissed which aimed to
establish the Family Court Judge of this Tribunal was solely competent
to decide on the place of habitual residence of the children;
Whereas, according to article 12 of the Convention, when a child has
been abducted or detained illegally in the sense of article 3, and
less than a year has passed since the abduction or the non-return at
the time of the introduction of the filing of the application with the
judicial authorities (or the administrative authority) of the
contracting state where the child is, the requested authority orders
his immediate return;
Whereas in this case the adduction of the children took place January
22, 1993; whereas Mr WRIGHT notified Mrs Gueriel by bailiff on August
6, 1993; whereas it is ascertained that although the procedures
instigated by Mr WRIGHT were slow, they were, nonetheless, within the
aforementioned one year delay, whereas his action, therefore, should
not be considered tardy in the terms of the convention;
Whereas, in consequence, the application of the Hague convention is
appropriate in this case;
Concerning the Return of the Children
Whereas article 13(b) of the Convention states that, the provisions of
article 12 notwithstanding, the judicial authority or the
administration of the state petitioned is not obliged to order the
return of the child when the person opposed to that return establishes
that there exists a grave risk that the return of the child would
expose him to physical or psychological danger or in any other way
place him in an intolerable situation;
Whereas, among the evidence produced by Mrs Gueriel in support of her
claims, there stands out the testimony of Mr Danny MULHERN, an
American citizen, an officer of the US Postal Service, who was a work
colleague of the defendant for 4 years and who commuted with her
during this time; that Mr MULHERM attests that Mr WRIGHT suffered from
severe depression, and being out of work for a year, he forced his
wife to do the maximum number of hours of overtime to support the
needs of the family; whereas according to the witness, Robert WRIGHT
had on two occasions hit and pushed his wife; whereas he attests to
having seen marks of blows and whereas he says that he accompanied Mrs
GUERIEL to the police station to lay a complaint, for which the
receipt was subsequently destroyed by Mr WRIGHT; whereas Mr MULHERN
also mentions that Mrs GUERIEL had confided to him that she feared for
her life if she asked for a divorce in the USA;
Whereas, according to the evidence of Mrs Muriel LORMIER, a French
citizen, English teacher, who lived from December 1988. to July 1989
at the home of the WRIGHT couple, Mr WRIGHT was a problematic
(caracterial) person, aggressive and violent towards his wife who was
thus very afraid of him; that he was extremely possessive about Mrs
GUERIEL who was not permitted to go out except for the purpose of
work; that Mr WRIGHT degraded the image of their mother in the eyes of
the children and that the children were disturbed by the shouting and
arguments;
Whereas Mr Eric GUERIEL, brother of the defendant, attests that he
twice went to the family home in New York to see his sister, that she
was effectively imprisoned by her possessive husband; that he confirms
having seen Mr WRIGHT be extremely physically and verbally violent
towards his three children; that his sister “lived over there with
fear in her stomach for herself and her three children”; and finally
he indicates that he heard Mr WRIGHT threaten Mrs GUERIEL, when last
winter she was staying for two weeks with her family in France, to
destroy the three children if she did not return immediately, which
she did immediately;
Whereas, for his part, Mr WRIGHT produced a certain number of
statements from neighbours, churchmen, the family doctor, describing
Mr WRIGHT as an affectionate, attentive father who spent a great deal
of time with his children;
Whereas the tenor of the evidence produced by Mr WRIGHT concerning his
attitude towards his sons was corroborated by a separate interview
with the children, which he instigated on August 17, 1993; thus Eric
and Robert notably each stated that their father was “gentil” (kind)
with him, spent time with him and played with him, the youngest child
Justin not being old enough to express himself during the meeting;
Whereas, the evidence in favour of Mr WRIGHT is not “antinomique”
(paradoxical) with the evidence produced by Mrs GUERIEL; whereas it
appears from the latter evidence that Mr WRIGHT had, towards his wife,
an exclusive and aggressive attitude, likely, at any time, to border
on relevant symptoms of certain psychological or psychiatric
illnesses, which could not, however, be determined, with a thorough
knowledge of the cause, because the Tribunal cannot decide in what
manner this might be investigated; whereas the evidence of Mr MULHERN
and of Mrs LORMIER should be considered probative with respect to Mrs
GUERIEL, being from a third party who had lived for a long period of
time in close proximity to the couple.
Whereas if these facts concern primarily the relationship between the
couple, (relevant in a case of divorce), then the present Tribunal
would not be able to decide (as the plaintiff requests) to what extent
they should be disregarded in the present case; whereas, in effect,
the pressure exerted by Mr WRIGHT on Mrs GUERIEL has a direct effect
on the children; whereas Mrs LORMIER has indicated that the children
were disturbed by the shouting and the arguments; whereas, above all,
Eric GUERIEL has confirmed his sister’s assertion that, during a
telephone call, Mr WRIGHT had threatened to kill the children if his
wife did not return immediately to the USA; whereas it thus appears
that the children became hostages in the “death crisis” of the couple
and this because of what Mr WRIGHT had done; whereas the very real
feelings of affection and attention displayed by Mr WRIGHT towards his
children would not of themselves, constitute a guarantee of the
physical and psychological safety of the said children; whereas the
threats of Mr WRIGHT regarding them should not be overlooked even
although they occurred in the context of the domestic dispute;
whereas, what cannot be overlooked is the risk, albeit statistically
minimal, that the plaintiff, overwhelmed by a sudden and destructive
suicidal impulse, would at any particular time, put his threats into
effect; whereas, therefore, the physical danger contemplated by
article 13(b) of the Convention has, therefore, been proved; whereas,
equally and at the same time the psychological danger contemplated by
the same text has been proved because it is not in the interest of the
children to allow them, at physical risk, to serve as a tool of
pressure.
Whereas, consequently, it falls to decide in favour of the grounds
raised by the defendant, and to deny Mr WRIGHT what he seeks, the
return of the children to New York being for them both a physical and
a psychological danger;
Whereas, it would be inequitable to let Mrs GUERIEL bear expenses not
covered by costs; it is ordered that Mr WRIGHT pay her compensation of
3,000 FF pursuant to article 700 of the New Code of Civil Procedure.
FOR THESE REASONS:
The exclusion of late evidence and grounds, as raised by the
plaintiff, is rejected;
Mr WRIGHT is fully entitled to invoke the Hague Convention;
All of Mr WRIGHT’s claims as to the application of article I3(b) of
the said Convention are dismissed;
Mr WRIGHT is ordered to pay compensation of 3,000 FF to Mrs GUERIEL
pursuant to article 700 of the New Code of Civil Procedure.
Mr WRIGHT is ordered to pay costs which will be recovered in
accordance with article 699 of the New Code of Civil Procedure.
/s/ Bultez /s/ Vely
_________________________ ________________________
LE GREFFIER LE PRESIDENT
——————–
1. Contributed by: Alain Cornec, Advocat, 11, Rue Lincoln,
750068 Paris, France