SWEDEN – BENSON – 1998

Benson v Benson (County Admin. Court 1998)Skane County, Section 114 Case No 9748-98
18 International Abduction [US 1998]
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COUNTY ADMINISTRATIVE COURT
IN
SKANE COUNTY
SECTION 114

Case No 9748-98

VERDICT

19 Oct 1998

Malmo, Sweden

PLAINTIFF

Greg Benson

Counsel:
Attorney Elias Arfwedson
S:t Petri Kyrkog. 11
222 21 LUND

DEFENDANT
Monika Benson

Counsel as well as representative according to the legal aid
law:
Attorney Sol-Britt Ingemansson
The Public Law Office
Sjalbodg. 10
211 35 MALMO

CASE

001 The transfer of children according to Paragraph 11 in
the Law (1989:14) on the recognition and execution of
foreign custody settlements etc. and the transfer of
children (Law of transfer).

———————————————————–

002 Greg Benson has, on the 7th of September 1998 at the
County Administrative Court, applied for the transfer of his
and Monika Benson’s four daughters, Amanda, Elina, Karin och
Emily, to his address in the US. As cause for his
application he has stated that Monika Benson is detaining
the children in Sweden and he has brought the following as
evidence, claiming that it’s an illegal detainment. The
family has resided in Sweden until August 1997, when the
family moved to San Diego, California. While in Sweden he
developed a software program for Internet commerce.

003 However, his company did not find any financiers in
Sweden and the family decided to move to San Diego so that
he could search for financiers there. Financing was arranged
quite soon and the company was established. At the time, the
family was in agreement that they would reside in San Diego
for the next few years. The three oldest children were
enrolled in an American school Fall term 1997. In June 1998
the family traveled to Sweden on vacation and Monika began
to speak of wanting to remain in Sweden with the children.
She refused to return to the US and said that she intended
to enroll the children in a Swedish school at the beginning
of the fall term. He thus had to return alone to California,
where he has sued for dissolution of marriage and applied
for custody of the children. The family has residing San
Diego since August 1997. He is professionally active in La
Jolla, where he heads an American company. Monika Benson has
not been professionally active in the USA. The children have
attended an American school for one school year and the
intention was that they would return for the Fall term. Thus
the family has had Its habitual residence, as defined by the
Hague Convention, in San Diego, California.

004 Monika Benson has contested the application and has
stated that the children have their habitual residence in
Sweden. Greg Benson’s claim should therefore be dismissed.
In the main she has stated the following. She and Greg
entered into marriage in 1986 and the four children are born
and raised in Sweden. The company encountered problems and
establishment took place in San Diego. However, the company
continues to be run in Lund. The family resides in a house
in Dalby and they are both listed on the title to the
property. She works as Course Coordinator at Medborgarskolan
in Lund. In August 1997 the family traveled to San Diego and
the intention was to remain there for 10 months, between
August 15th, 1997 until June 16th, 1998. Friends and others
were informed of their temporary address in the USA, and she
requested a leave of absence from her job for the same
period. Round-trip tickets for the US trip were bought. It
was agreed that a neighbor girl would care for the house
during the period the family was away. The house was not
rented out. She received a visa to the USA for one year and
the family informed the Local Tax Authority that the
intention was to stay in the US for 10 months. The children
retained their places in school and day-care. The agreement
between her and Greg was that the family would experienced difficulty adjusting to
life in the US, they were homesick and had serious problems
with schooling, friends, etc. The family returned to Sweden
on June 16, 1998 and has lived in Sweden ever since. Even
Greg has been in Sweden for much of the summer. Both she and
the children refused to return to the USA when Greg in
August 1998 demanded this. Greg returned alone to the US and
the children began attending Swedish schools. In August 1998
Greg unilaterally and falsely reported to the local Tax
Authority that the entire family had relocated to the USA.
He obtained at that time identification papers which
indicated this. However, this was later changed by the Tax
Authority. The children wish to remain with her In Sweden.
She is the one who has always cared for them. The children
have returned to their schools and she has returned to her
job, from which she had taken leave of absence. Greg has
submitted an application for summons against her in San
Diego and she has submitted an application for summons
concerning dissolution of marriage, etc. to Lund District
Court.

005 Greg Benson has in the main stated the following.
During 1996/97 he and Monika agreed that the family savings
of 200,000 Swedish crowns was to be used for family expenses
since he could no longer withdraw any salary from the
company in Sweden. At the time of the move to the US the
family had no assets at all. The company in the US, and the
effort that was put into It, was what saved the family. The
whole project of getting financing in the US Implied his
full-time commitment there. When, at the turn of April/May,
it was clear that the financing project had succeeded, the
family decided to continue its residency in San Diego. A
failure In this case would have resulted in the family
returning to Sweden. To verify that he and Monika had
decided to continue their residency in Son Diego he has
stated that a real estate agent has shown some thirty houses
to them between May 1 and June 15, 1998. Furthermore he has
referred to affidavits showing that Monika has checked out
the possibility of registering the children in schools for
the school year of 1998/99. The four children are all
applicants for the school year of 1998/99 and will be
accepted In their respective classes as soon as they get to
San Diego. During June and July 1998 the property was put up
for lease on four occasions. The return trip was booked for
August 19, 1998. It is incorrect that the duration of the
stay was just ten months. However, on departure from Sweden
the family planned for the next school Year for practical
reasons.

006 Monika took a leave of absence, return tickets were
booked so that the family could return for the summer
vacation in Sweden, and the neighbor was to take care of the
property in the meantime. The property was kept unlet In
order to be able to return should the project in the US
fail. At the departure there was still some uncertainty
about the future, but this uncertainty was removed when the
financing was successful. Because of this the application to
the Tax Authorities was for ten months, and as the reported
time was less than a year the Tax Authorities did not make
any decision on deregistration. As soon as the application
was made in August 1998 the decision of deregistration could
be made. The two older children have had difficulties
adjusting to life in the USA, but these were normal
adjusting difficulties in an environment partly new to them.
During the twelve years of marriage the children have once
or twice a year traveled to San Diego where the paternal
grandparents live and they have spent four to six weeks
there each time. Due to these stays the children are
familiar with the environment and have family ties to his
four siblings and their families. Furthermore the children
are bilingual and they are Swedish as well as American
citizens. It was not until the summer vacation that Monika
started to change her mind about returning to San Diego on
August 1 as planned. He and Monika decided to seek family
counseling to resolve the question of whether or not it was
right to return to the US. This is why the return trip was
delayed till August 19, 1998. In the middle of August he
returned to Sweden for the third time in two months and was
then informed by Monika that she intended to stay in Sweden
together with the children. This decision was not known to
any other person than herself and the children. Neither
friends nor neighbors knew about the decision. The school in
Dalby was not notified. A last try to come to an agreement
was made on August 19 when they met together with their
lawyers.

007 Oral proceeding has been held on October 13, 1998.

008 Greg Benson has maintained his application and has
demanded that Monika Benson under penalty of 50,000 Swedish
crowns hand over the four children. Furthermore he has
demanded that the decision of the County Administrative
Court shall be in force immediately and that Monika Benson
shall be put under the obligation to pay for his legal
expenses. He has in the main stated the following.

009 In 1997 he and Monika jointly decided that the family
would live in the US for a trial period. The years preceding
this he had commuted between the US and Sweden every other
week and this arrangement was not good for the family. The
children have gone to school and made friends and adapted to
everyday life in the US. In May 1998 the financing of his
company in the USA was completed and he wanted to extend the
family’s stay there. The family Jointly looked at some
thirty possible houses in San Diego. It was decided that
the family would go to Sweden In June and then return to San
Diego in August 1998.

010 Amanda enjoyed school but had difficulties making
friends and Karin got a bad teacher – something that has
made her situation more difficult. The children were
homesick but made friends and enjoyed themselves most of the
time. Monika was carrying the burden of taking care of the
children when they arrived home from school and she had
difficulties accepting and adjusting to her now environment
and the children were influenced by her mood. It was due to
the uncertainty of the financing of his company that they
kept the property in Dalby. All summer he and Monika
discussed how they would compromise. It was still unsettled
when he changed their state of residence in the national
registry.

011 He expected the family to go to San Diego and
therefore he changed the address without Monika’s consent.
With the financing that had been obtained in the US It is
totally unacceptable to him to commute to Sweden. Monika
and he have agreed all along that she takes care of the
children and he earns money for the family. Monika has
voluntarily accepted the agreement that the family would try
to settle down In the US. Dividing the family makes all
family members feel bad. The children are confused now, even
though they are In Sweden. They all participated in
choosing a house In the USA and they knew they would return.

012 Elias Arfwedson has maintained that the children
naturally feel less used to the environment in the US since
they have not lived there for long. The case is not about
deciding which has been the “permanent residence” of the
children. The purpose of the stay in the US has been to
secure a permanent income for the family. When the financing
was completed it was decided that the base for work had to
be the US. It is Monika who is not happy about her
situation. Disregarding the attitude she might have had she
has agreed to make necessary arrangements for the family.

013 When deciding which is the children’s “habitual
residence” one should look at the factual circumstances and
also take subjective intentions into consideration. It Is
not Greg who has decided that the family would stay in the
US on his own, but the necessary decisions have been taken
in the best interest of the family. It is Monika who has
taken the decision to remain in Sweden on her own, which
means dividing the family and that by doing so she has tried
to gain a better position. This is the kind of unilateral
decision that the Hague Convention is created to prevent.
The “habitual residence” of the children is San Diego and
the case should be transferred there so that Greg and Monika
can try to solve their Joint problems there.

014 Monika Benson has contested the application and
requested that Greg Benson be obliged to compensate her for
the expenses in the case. In the main she has stated the
following.

015 It was decided that the family would be away for one
year and they notified the gas company, the telephone
company, the schools and the day-care among others. In the
US she did everything possible to make life enjoyable for
the girls. Every day when they got out of school they were
homesick for friends and activities. She was advised on how
to improve their situation and arranged for horseback riding
and dance lessons for the girls. She told Greg about the
girls’ problem but he just “swept it under the carpet” and
said “it will get better”. Greg didn’t tell her anything
until he had decided to stay in San Diego. She wanted to
talk it through with Greg but didn’t get anywhere. She felt
alone, threatened and that Greg alone was in control. In the
middle of May Greg threatened her and said that if they
didn’t look at houses and schools they could not go to
Sweden. Therefore, she felt forced into the situation in
order to be able to come home at all. The children have now
returned to theIr old friends and are now functioning well
In Sweden.

016 Sol-Britt Ingemansson has stated that the purpose of
the Hague Convention is to protect the interests of the
children and should serve two objectives. The first is to
stop children from being removed from their normal
environment and the second is to prevent one parent from
unilaterally arranging for the future of the children. When
the residence of the children shall be decided one shall
look at various factors such as the duration of the stay and
the general circumstances. When determining the children’s
habitual residence one makes a thorough examination of
objective, established facts.

017 In this case, the question Is where the children’s
permanent connection has been. The children are both Swedish
and American citizens. They have been nationally registered
in Sweden and have been going to school here. The agreement
between Greg and Monika was that the family would spend one
school year in the US. Greg has then unilaterally decided
that the family should remain In the US. Monika represents
continuity in the lives of the children and she is in
Sweden. The girls are now back in their familiar environment
in Sweden and they have friends and a normal life here. They
have not been happy and they have not adjusted to life In
the USA. Everything speaks for the fact that the children’s
residence is and has been in Sweden.

GROUNDS FOR VERDICT

018 According to paragraph 11 code of transfer children
that have been illegally moved to Sweden or are illegally
detained here are to be transferred upon request to the
person from whom the child is withheld. If the child
immediately before the abduction or the detainment had
habitual residence in a country that has entered the Hague
Convention.

019 A main principle of the convention is that it shall
not be to anyone’s advantage to abduct a child from its
habitual residence or to detain a child in a foreign country
(Government bill 1992/93:139 pp 12-).

020 In Government bill 1988/89:8 pp 40- the following Is
concluded.

021 Within the Convention the right that has been violated
in order to be able to use the code of transfer must be
denoted as “rights of custody”, which includes such rights
as refer to the custody of the child, among them the right
to decide where the child has its habitual residence. The
question of who has been guardian as well as the question of
whether or not there has been an illegal abduction or
detainment are decided according to the law of the country
where the child had its habitual residence when the
abduction or detainment took place. Furthermore It is
concluded that if, for example, a child’s parents have joint
custody and one of them, without the consent of the other,
abducts the child from the country, it may be a question of
illegal abduction.

022 One purpose of the convention is to protect children
from being taken away without notice from their normal
environment where it has been social and emotional roots.
For Instance, this is reflected in the requirement that the
guardian must actually have had guardianship and cared for
the child at the time when the child was abducted or
detained.

023 Concerning the notion of habitual residence the
Government bill 1973:158 pp 78- states that a person who is
residing in a certain country shall be considered as having
his habitual residence there, if the duration and other
circumstances are considered permanent.

024 Among significant circumstances apart from the
duration of the stay, the purpose of the stay reeds to be
mentioned. In principle habitual residence will probably
not be considered if the circumstances indicate leaving the
country again. However, too rigorous demands cannot be made
concerning the person’s intentions for the future.

025 Thus, it need not be a permanent residency. A person
that only studies or is employed for educational purposes is
generally not considered as habitual resident in the
country. A person that is employed in a foreign affiliated
company to a company in his native country or is at a
company’s disposal for developing aid in a foreign country
may keep his habitual residency in his native country even
if the stay in the foreign country is of a considerable
length.

026 Furthermore it is stated that time Is not solely
determining, but that all circumstances of the stay must be
taken into consideration.

027 Some importance must be attached to the question of
how strong the attachment is to another country, for example
the native country or the previous country of residence. If
all ties – possibly apart from the citizenship – are cut
with this country a stay with a time limit could also be
considered as residency in the country, while maintaining
certain ties with the other country may result in the stay
not being equal to habitual residency.

028 In the case it has been stated that Greg and Monika
Benson have joint custody of their four girls Amanda, Elina.
Karin, and Emily. The United States of America has entered
into the convention mentioned above. Without doubt Is the
fact that the case should be tried according to the code of
transfer. In this case the County Administrative Court has
to try whether the presented circumstances imply that the
four Benson girls are to be considered as having had their
habitual residency in Sweden.

029 The County Administrative Court makes the following
decision.

030 The basis of the examination of the County Court is
that an abduction that has taken place against the will of
one guardian cannot without further notice lead to a change
of the habitual residency of the child, but on the other
hand the circumstances under which the abduction has taken
place cannot be judged to be a permanent impediment to
establishing a new habitual residence.

031 The four girls were all born and raised in Sweden. In
August 1997 the family moved to San Diego. It has been
stated that the move was due to the fact that Greg Benson
had not succeeded in getting financing In Sweden for a
patent of his and that because of this attempts would be
made in the US.

032 Considering the case, it is the strong opinion of the
County Administrative Court that the habitual residence of
the children is Sweden.

033 The County Administrative Court has formed an opinion
based on the general circumstances and has found that the
Benson family stayed in the US for ten months and that all
facts indicate that the intention at the departure In August
1997 was to stay for this period only.

034 Round trip tickets were already booked when departing
from Sweden. Planning, as well as measures taken, show that
the Intention was to return to Sweden in June 1998, which
has occurred.

035 The property was not let during the stay in the US and
a neighbor was in charge of the property during this time.
The family car in Sweden was lent during the same period.

036 The children have been socially established in Sweden
since their birth, the two oldest girls had already started
school in Sweden when they moved to the US.

037 Monika Benson has had employment in Sweden from which
she has taken a leave during her stay in the US.

038 Greg Benson has maintained that the reason for the
move was to save the economy of the family and that the
purpose of the move was to remain In the US, but that
everything was left in Sweden in case the efforts made in
the US should fail.

039 However, he has unilaterally notified the Tax
Authorities that the whole family had moved in August 1998,
despite the fact that the trip to the US was uncertain.
According to him the reason for this was that he expected
the family to leave for San Diego. Against this Monika
Benson has maintained that she has not been informed of
Greg’s plans for the family.

040 Since one person’s intentions can be considered, but
as a rule shall be accorded less Importance, the County
Administrative Court finds that only circumstances which are
objectively established can be grounds for the decision. The
County Administrative Court cannot but take into
consideration the children’s, at least the two oldest
girls’, attitude toward the stay in the US. As expressed in
the case, they have not adopted to life In the US and they
have been homesick.

041 Documents and letters presented In the case show, in
the opinion of the County Administrative Court, the strong
feelings the girls have about the stay and these feelings
cannot be neglected in the complete judgment that is to be
done.

042 The above stated implies that the County
Administrative Court finds that it is not a question of
illegal detainment of the four girls Amanda, Elina, Karin,
and Emily.

043 Accordingly Greg Benson’s application is denied.

044 According to Chapter 21, Paragraph 1 of the code of
parents, to which Paragraph 21 in the code of transfer
refers, in cases of execution etc. concerning a party’s
obligation to recompense the costs of the counterparty, it
applies that the County Administrative Court may, within
reason, order one party to pay for the counterparty’s
expenses.

045 When applying the above regulation the main rule is
the principle stated in Chapter 18, Paragraph 1 of the code
of procedure that the party which has lost the case shall
pay for the counterparty’s legal expenses.

046 Exception from this main rule can be made when
negligent litigation can be proved on the part of the
counterparty side.

047 Apart from this, exception will only be made if the
circumstances of the case are such that it is not reasonable
for the losing party to pay for the counterparty’s legal
expenses.

048 The County Administrative Court finds no reason to
diverge from the general rule and Greg Benson shall
compensate Monika Benson’ for her legal expenses at the
County Administrative Court.

JUDICIAL DECISION

049 The County Administrative Court rejects Greg Benson’s
petition.

050 The County Administrative Court determines
compensation, according to the legal aid agreement, and that
Sol-Britt Ingemansson, counsel for Monika Benson, obtains
the 14574 – (Swedish crowns) claimed, all for counsel. VAT
amounts to SKR 2914. – of the above.

051 The County Administrative Court puts Greg Benson under
the obligation to compensate Monika Benson for legal
expenses of SKR 14574.- at the County Administrative Court.

HOW TO APPEAL, see enclosure.

Per-Henrik Wallberg

Sent to:

Monika Benson
Counsel Ingemansson

Greg Benson
Counsel Arfwedson
Legal Aid Authority
State Department of Sweden

HOW TO APPEAL

052 If you wish to appeal the verdict/the decision of the
County Administrative Court you should write to the
Administrative Court of Appeal in Gothenburg and appeal the
verdict/the decision. However, the written statement shall
be sent or delivered to the County Administrative Court.
State why you think the verdict/the decision should be
changed and what change you would like to have. Also enclose
such material you consider relevant and that you have not
presented earlier.

053 In order for the Administrative Court of Appeal to
handle your appeal your written statement must have reached
the County Administrative Court within three weeks of the
day you received the verdict/the decision. For public
authorities the three weeks’ time is counted from the day
the verdict/the decision was pronounced. If the last day of
appeal is a Saturday, Sunday or holiday, Midsummer’s Eve,
Christmas Eve or New Year’s Eve, it is sufficient if the
appeal is received the following weekday.

054 State which verdict or which decision you are
appealing by noting the name of the County Administrative
Court and the number of the case.

055 Sign the written statement, together with your name
printed and give your personal Identification
number,profession, mailing address and phone number. Address
and phone number to your work should be included as well as
any other address where you can be reached for service. If
you have already given this information in the case and if
it is still correct you do not have to give it again.

056 If you engage an attorney, the lawyer can sign the
written statement in your place. The attorney shall enclose
a power of attorney in the original and give name address
and phone number,

057 If any personal or address information is changed, you
should report the change to the Administrative Court of
Appeal without delay.

058 The address to the County Administrative Court is
found in the verdict/decision of the Court.
If You need further information about how to appeal you can
turn to the County Administrative Court.

DECLARATION OF TRANSLATOR

Julle Hansen
Sodra Parkg. 35
214 22 MALMO
Sweden

October 30, 1999

TO WHOM IT MAY CONCERN

As a native speaker of English fluent in Swedish, I hereby
certify that the translations of documents “Verdict of Case
no. D748-98” issued by the County Administrative Court on
October 19, 1998 are full and accurate translations of the
Swedish originals.

I may be contacted at 48-40-12 62 77 (home) or 49-40-690 80
00 (work) if you have any questions.

Sincerely,

/s/ Julle Hansen

Julle Hansen
US Social Security # 539-02-0167