26 March 1993First Division
Petition No. 8104 BR.
(Stamp) COPY
Netherlands Supreme Court
Ruling
in the case of
Jack Clay BURGESS II,
of Ohio, United States of America
PETITIONER in the cassation proceedings,
formerly represented by: G M M den Drijver
now represented by: M J Schenk
against
Liesbeth SMID
of Hindeloopen,
DEFENDANT in the cassation proceedings,
represented by: E van Staden ten Brink.
1. The proceedinas before courts inquiring into the facts
On 20 September 1991 the International Legal Assistance Division
of the Constitutional and Criminal Law Department of the Ministry
of Justice, in its capacity as the Central Authority pursuant to
section 4 of the Act of 2 May 1990 (Bulletin of Acts, Orders and
Decrees no. 202), acting on its own behalf and on behalf of the
petitioner in the cassation proceedings – hereinafter referred to
as the father – submitted an application as referred to in
section 12 of the said Act to the Children’s Judge at Leeuwarden
District Court, requesting the court:
a. to order that Morgan Elizabeth Burgess be surrendered
and returned to the aforesaid father, who had temporary
custody of the minor child;
b. if necessary to order the child to be temporarily
entrusted to the Child Care and Protection Board;
c. to sentence the defendant in the cassation proceedings
– hereinafter to be referred to as the mother – to pay
to the Central Authority and/or the father the costs
incurred by them in connection with the abduction or
return of the child.
After the mother had entered a statement of defence to the
application, the case was referred by the Children’s Judge to the
District Court, which dismissed the application by a judgement of
13 November 1991.
The Central Authority, acting on its own behalf and on that of
the father, lodged an appeal against this judgement with
Leeuwarden Court of Appeal, which upheld the contested judgement
of the District Court by a decision of 20 December 1991. The
Court of Appeal decision is appended to this ruling.
2. Cassation proceedings
The father has instituted an appeal in cassation against the
decision of the Court of Appeal. The petition for cassation is
appended to and forms part of this ruling.
The mother has sought dismissal of the appeal.
Counsel has outlined the case on behalf of the parties.
The advisory opinion by Mr Strikwerda, the Advocate General,
takes the view that the appeal should be dismissed.
3. Assessment of the statement of grounds for appeal
3.1 The following may be taken into account in the
cassation proceedings.
The parties were married in Workum, in the municipality of
Nijefurd, the Netherlands, on 8 September 1986. They subsequently
took up residence in Chesapeake, Virginia, USA, where Morgan
Elizabeth Burgess (hereinafter to be referred to as Morgan) was
born of the marriage on 24 February 1988.
On 31 January 1991 the father became unemployed. In anticipation
of this, the mother and Morgan had travelled to the Netherlands
on 15 January 1991, in accordance with an agreement to that
effect reached by the parties. She and Morgan went to live with
her parents in Hindeloopen, in the municipality of Nijefurd. On
21 January 1991 she registered her name in the population
register of the municipality and subsequently applied for benefit
under the National Assistance Act. The marital home in Chesapeake
was put up for sale.
On or about 16 March 1991 the father asked the mother to return
to Chesapeake with Morgan. The mother did not comply with this
request. On 6 June 1991, the father applied for a custody order
for Morgan to the court in Chesapeake, which, by judgement of 26
July 1991, awarded temporary custody of Morgan to the father,
ordered her return and adjourned the case until 1 November 1991.
The mother was notified of this judgement. Despite having been
summonsed by the court in Chesapeake, she had not appeared before
it.
3.2 The application which opened the present proceedings on
20 September 1991, which seeks in brief an order for the
surrender and return of Morgan to the father, is based on the
Convention on the Civil Aspects of International Child Abduction,
concluded in The Hague on 25 October 1980 (Netherlands Treaty
Series 1987, no. 139) in conjunction with the Act of 2 May 1990
(Bulletin of Acts, Orders and Decrees, no. 202) designed to
implement the Convention and other instruments. The application
was submitted by the Central Authority designated pursuant to
section 4, subsection 1 of the Act, as referred to in article 6
of the Convention, acting on its own behalf and on behalf of the
father in submitting its petition.
In these proceedings the Central Authority asserts, in brief,
that the substance of the agreement between the parties referred
to at 3.1 above, pursuant to which the mother travelled to the
Netherlands with Morgan on 15 January 1991, was that the mother
would seek employment for the father in the Netherlands, and that
if she succeeded the parties would take up residence in the
Netherlands, but that if her efforts failed – which is what
actually happened – she and Morgan would return to the father in
the marital home in Chesapeake.
The mother challenged this account, arguing for her part that the
substance of the agreement was that, in connection with the
father’s being made redundant, the parties would take up
residence in the Netherlands, where the father would look for a
job, and that she would precede him, with Morgan, to investigate
the job market, while the father would follow after selling the
marital home in Chesapeake; that the father did not adhere to
this agreement, but remained in the USA where he sought and found
employment, and rented, rather than sold, the marital home.
The District Court upheld the mother’s interpretation of the
agreement made by the parties and on that basis held – in brief –
that Morgan’s habitual place of residence within the meaning of
article 3 of the Convention was in the Netherlands, so that there
was no question of wrongful removal or retention of Morgan as
referred to in article 3.
The Court of Appeal agreed with the opinion of the District Court
that the time spent by Morgan in the Netherlands could be
described as having her habitual place of residence in the sense
referred to above, reasoning that the mother settled in the
Netherlands as the result of an agreement with the father; that
while this agreement did not specify that this stay was to be
permanent it was intended to last for an indefinite period and
that Morgan’s habitual place residence, within the meaning of
article 3 of the Convention, was therefore transferred to the
Netherlands with immediate effect. This fact alone eliminated the
possibility of wrongful removal or retention as referred to in
article 3 of the Convention .
3.3 The statement of grounds for appeal puts forward an
argument on a point of law contesting the Court of Appeal’s
opinion that the time spent by Morgan in the Netherlands could be
described as having her habitual place of residence here. In
support of this argument, the statement argues that the documents
do not reveal a definite agreement by the parents to take up
residence in the Netherlands, for the agreement was that the
parents would settle in the Netherlands if the father found a
suitable job in this country. The statement argues that, in these
circumstances, it cannot be alleged – in particular in view of
the nature and purpose of the Convention – that Morgan’s habitual
place of residence had been moved to the Netherlands.
3.4 It appears from the foregoing that the argument is
based on a claim related to the facts, namely concerning the
agreement between the parties, which is not compatible with what
the Court of Appeal determined with regard to the substance of
the agreement. The argument is therefore unfounded.
3.5 The statement of grounds for appeal also alleges that
the Court of Appeal did not give sufficient reasons “from which
it may be deduced that the petitioner and the respondent had
decided in consultation in favour of a new permanent domicile or
place of residence for themselves and their child”. This
argument is likewise unfounded, as it is based on an incorrect
interpretation of the contested judgement. In holding that the
stay in the Netherlands envisaged by the agreement between the
parties was “if not permanent, nevertheless to last for an
indefinite period”, the Court of Appeal did not determine but in
fact left open the question of whether they had agreed to take up
permanent residence in the Netherlands.
Cassation may not therefore be granted on the basis of the
statement of grounds for appeal.
4. Rulinq
The Supreme Court dismisses the appeal.
This ruling was handed down by Mr Royer, president of the court,
presiding, and Justices Roelvink, Heemskerk, Nieuwenhuis and
Swens-Donner, and was pronounced in public by Justice Davids on
26 March 1993.
(Two signatures)
(Stamp): Issued as a true copy of the original (Signed) Clerk to
the Supreme Court of the Netherlands