SWEDEN – JOHNSON – 1996

Johnson and Johnson (Sweden 1996)Case No 7505-1995
6 International Abduction [SWEDEN 1996]
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JUDGMENT OF THE SUPREME ADMINISTRATIVE: COURT

Case No. 7505-1995
pronounced in Stockholm on 9 May 1996
APPELLANT

Anne Franzen Johnson. National identity number 500115-4300
(date of birth 15 January 1950), of Raidjursstigen 14, 171
72 Solna

Representative and counsel in accordance with the Legal Aid
Act: Advokat Suzanne Johanson, Norrlandsgatan 18, 11143
Stockholm

RESPONDENT Thomas Johnson, 5711 Heritage IIill Court
Alexandria, Virginia 22310, USA

Represented by:
Advokat Claes Renstrom
Advokat Fredric Renstrom
Eriksbergsgatan 1 A
11430 Stockholm

DECISION AGAINST WHICH APPEAL IS MADE

Judgment of the Stockholm Administrative Court of Appeal of
19 December 1995 in case number 9141-1995 (Enclosure)

THE ISSUE

001 The return of a child in accordance with the Act
concerning Recognition and Enforcement of Foreign Decisions
relating to Custody, etc. and concerning the Return of
Children (1080:14).

BACKGROUND

002 Anne Franzen Johnson and Thomas Johnson were married
in 1986. Their daughter, Amanda was born on 11 November
1987. Anne Franzen Johnson, who is employed by the Swedish
Ministry for Foreign Affairs, and Thomas Johnson, who is
employed by the US Department of State, were residing in
Switzerland at that time. In 1990. Anne Franzen Johnson was
posted to the Swedish Consulate in New York, and Thomas
Johnson was posted in Washington. Thomas Johnson lived In
Virginia. Amanda lived alternately with her mother and her
father.

003 On 11 February 1992, a US court granted a divorce
petition which dissolved the marriage between Anne Franzen
Johnson and Thomas Johnson, and confirmed an agreement
reached by them under which they were to have joint custody
of Amanda. Amanda was to be with her mother for 28 weeks of
the year and with her father for the remaining 24 weeks for
periods of two weeks at a time, and the mother was entitled
to move to Sweden with Amanda after 1 July 1993. Amanda was
to stay with her father for a year every third year. Shortly
before Anne Franzen Johnson’s and Amanda’s departure for
Sweden in July 1993, Thomas Johnson instituted an action
against Anne Franzen Johnson in a US court concerning
amendment of the agreement. This action resulted in a new
agreement arrived at by the parties on 15 November 1993 and
ratified by a court In Virginia on 28 December of the same
year, under which Amanda, who was to continue to be in the
custody of both parents, was to stay with her parents as
follows:

1993-20 August 1995, with her mother
21 August 1995 – 20 August 1997, with her father
21 August 1997 – 20 August 1999, with her mother
21 August 1999 – 20 August 2000, with her father
21 August 2000 – 20 August 2002, with her mother
21 August 2002 – 20 August 2003, with her father
21 August 2003 – 20 August 2005, with her mother

004 In addition, the agreement also contained provision
for extensive access rights, for the parent with whom Amanda
was not staying. Furthermore, in accordance with the
agreement reached by the parties, the decision of the court
also stated as follows:

005 “It is adjudged, ordered and decreed that this Court
hereby expressly finds that it has continuing and exclusive
jurisdiction to decide all matters relating to the care and
custody of the minor child, Amanda Kristina Johnson; and the
Petitioner’s residence in the Commonwealth of Virginia,
United States of America, and not Sweden, shall constitute
the place of residence for the purpose of all adjudications
of custody and visitation of the said minor child; and that
the Courts of Sweden as well as all other courts anyplace in
the world shall not acquire jurisdiction over the custody of
said child by reason of the Respondent’s residence in the
Country of Sweden, or other parties’ residence anywhere
else.

006 It is the intent of the parties that the Commonwealth
of Virginia shall be the only forum for the adjudication of
custody or visitation matters involving the child Amanda
Kristina Johnson, now or in the future; that the parties
will provide such further assurances or stipulations of
their counsel as may be necessary to give full force and
effect to the provisions contained herein, giving the
Commonwealth of Virginia the sole and exclusive
jurisdiction.

007 It is further ordered that neither party shall seek
modification of this Order without prior leave of this Court
and Notice to the other party.”

008 As regards the Hague Convention, the agreement
contained the following:

009 “The parties hereby stipulate, agree, submit to, and
acknowledge their intention to be bound by the terms and
conditions of the Hague Convention on the civil aspects of
international child abduction. The International Child
Abduction Remedies Act (Final Act, 14th Sess. of the Hague
Conference, 1980).”

010 On 19 July, 1995, Thomas Johnson submitted an
application to the County Administrative Court requiring the
return of Amanda to him, in accordance with the Act
concerning Recognition and Enforcement of Foreign Decisions
relating to Custody, etc. and concerning the Return of
Children (1988:14) (The Enforcement Act).

PETITIONS, ETC,

011 Anne Franzen Johnson petitions that the Supreme
Administrative Court amends the judgment of the
Administrative Court of Appeal by prescribing that
enforcement may not take place and that there be a stay of
execution on the Administrative Court of Appeal’s Judgment.
If the Supreme Administrative Court of Appeal should find
that Amanda is not habitually resident in Sweden, Anne
Franzen Johnson petitions that the Supreme Administrative
Court prescribes that a child-psychiatric investigation be
undertaken, prior to pronouncement of a judgment, in order
to ascertain whether enforcement would mean that Amanda’s
mental health would be seriously harmed. Finally, Anne
Franzen Johnson petitions to be released from liability to
compensate Thomas Johnson’s legal costs in connection with
the County Administrative Court and the Administrative Court
of Appeal hearings. In support of here case, in addition to
what she has cited in the lower courts, Anne Franzen Johnson
cites, inter allia, the following. The agreement ratified
by the US court does not affect the child’s habitual
residence, since it merely stipulates that questions of
custody and access are to be raised in the place where the
father is habitually resident. The child’s habitual
residence is not affected in any way by the US judgment,
which is confined to the question of jurisdiction. The US
court has not made an assessment of the child’s best
interests. It would be disgraceful if it were found that the
child was not considered to have habitual residence with the
parent who has had de facto care of the child for two years.

012 Thomas Johnson petitions that the Supreme
Administrative Court rejects Anne Franzen Johnson’s petition
for amendment, and also the petition regarding a
child-psychiatric report. For his part, Thomas Johnson
petitions for compensation for his costs in the Supreme
Administrative Court. In support of his case he cites, inter
allia, the following. The parties were fully aware that the
Hague Convention was applicable to their agreement and were
in complete agreement that the actual custody of Amanda was
to be transferred to the father as per 20 August, 1995. The
one-year rule stated in Section 12, subsection one of the
Enforcement Act must be considered to commence as from 20
August 1995.

013 On 21 December 1995, the Supreme Administrative Court
prescribed that the judgment of the Administrative Court of
Appeal regarding the return of Amanda should not be enforced
until further notice.

REASONS FOR THE SUPREME ADMINISTRATIVE COURT’S RULING

014 The question in this case concerns whether Anne
Franzen Johnson’s retention of Amanda in Sweden after 20
August 1995 is unlawful in the sense of the Enforcement Act.

015 In RA 1095 ref. 99, the Supreme Administrative Court
has considered in detail the question of when removal or
retention of a child is to be considered to be unlawful in
the sense of the Enforcement Act.

016 The provisions of the Enforcement Act regarding the
return of children are based on the Convention adopted by
the Hague Conference on the Civil Aspects of International
Child Abduction (Hague Convention) in 1980. One of the
overall aims of the Convention is to protect children from
the harmful effects of being uprooted from their habitual
surroundings. In order to satisfy this objective, the
Convention includes provisions which make it possible for a
child which has been unlawfully taken from one convention
state to another to be rapidly returned to the former state.
thus restoring the status quo. The Convention has been
incorporated into Swedish law by including provisions In the
Enforcement Act which are intended to reflect the
Convention. The provisions which are of primary significance
in this case are contained in Section 11 of the Enforcement
Act – the closest equivalents in the Hague Convention are
Article 3 and Article 12, first paragraph.

017 Under Section 11 of the Enforcement Act, a child which
has been taken to Sweden unlawfully or is unlawfully
detained in Sweden shall, following an application, be
transferred to the country from which the child is withheld
if the child was habitually resident immediately prior to
the removal or detention in a state which has acceded to the
Hague Convention. Under Section 11, second paragraph,
removal or detention is unlawful if the removal or detention
contravenes the right to take care of the child held by the
person responsible for custody or by another person in the
state in which the child was habitually resident Immediately
prior to removal or detention. If this right was also
exercised at the time when the child was removed or
detained, or would have been exercised at such a time if
removal or detention had not taken place.

018 The Act presumes that both the question of who had
custody at the time of removal or detention and the question
of whether removal was unlawful are determined in accordance
with the provisions which applied in the state in which the
child was habitually residing at the time of removal
(Section 11, second paragraph, and the special explanation
of this Section in Bill 1988/89:8, page 40). In addition, it
may be considered that the provisions imply that detention
of a child in Sweden is not unlawful under the Act if the
child was habitually resident in Sweden immediately prior to
detention. Thus the definition of habitual residence
(“hemvist”) is of decisive importance in applying the
provisions of the Enforcement Act concerning return.

019 The concept of habitual residence is not defined in
the Enforcement Act, but reference is made in the preamble
(Bill. pp 36 and 40) to statements concerning the concept of
habitual residence made in connection with the incorporation
of a definition of the concept of habitual residence in 1973
in Chapter 7, Section 2, of the Act concerning Certain
International Legal Circumstances concerning Marriage and
Guardianship (1904:26. pl). According to this definition, a
person who is resident in a given state may be considered to
have habitual residence in this state if residence must be
considered constant in view of the duration of the period
concerned and other circumstances (see Bill 1973; 158. p 78
et seq).

020 However, in interpreting the habitual residence
concept in the Enforcement Act, it should be particularly
taken into account that this Act is an example of
legislation governed by international treaty. In
interpreting the concept of habitual residence in the Act,
special attention should therefore be paid to the
terminology employed in the Hague Convention, and its aims.
The term “habitual residence”, which corresponds to
“hemvist” is not defined in the Hague Convention either. In
general, it may be said that consideration of the question
of habitual residence under the Convention is primarily a
matter of making an overall assessment of circumstances
which may be observed objectively such as the length of
sojourn, existing social ties, and other (missing words) or
occupational nature which may indicate a more permanent
attachment to one country or the other. In the case of a
small child, the habitual residence of person who has
custody, and other family and social aspects, must be the
decisive factors (see RA 1995 ref. 99).

021 As mentioned above, Amanda lived in Switzerland with
her parents for the first year of her life. In 1990, Anne
Franzen Johnson lived in New York and Thomas Johnson, in
Virginia. Amanda lived alternately with the parties until
July 1993, when she moved to Sweden with her mother.
According to the agreement between Anne Franzen Johnson and
Thomas Johnson which has been ratified by the court in
Virginia, the parties are to have joint custody of Amanda
and share Amanda’s de facto care until she reaches the age
of 18. Under the agreement. Anne Franzen Johnson was
responsible for Amanda’s de facto care until 20 August 1995.
The parties were subsequently to be responsible for such
care on an alternate basis in accordance with u schedule
under which Amanda was to stay with her mother for a total
of eight years, and for four years with her father. At times
when one party had de facto care of Amanda, the other party
was entitled to extensive access to her. Amanda is a citizen
of both the United States and Sweden.

022 Thus, Amanda has been staying In Sweden with her
mother since 21 August 1995, against her father’s will. The
Supreme Administrative Court must now consider whether or
not the circumstance which apply in this case mean that
Amanda may be regarded as habitually resident in Sweden on
20 August 1995. It must be taken into account that Amanda
had been staying in Sweden with her mother for more than two
years when the question of return became relevant. Her
mother is habitually resident in Sweden. According to the
facts which have emerged in this case, Amanda has adjusted
to circumstances in the place where she is living. In
addition, in accordance with the agreement cited in the
case and confirmed by the court in Virginia, Amanda is to
spend a total of eight years in Sweden until she reaches the
age of 18, as compared with four years in the United States.
In the light of what has been stated, the Supreme
Administrative Court finds that Amanda was habitually
resident in Sweden on 20 August 1995. The extracts from the
agreement ratified by the court in Virginia presented above
do not give grounds for an alternative assessment.

023 This means that the retention of Amanda in August 1995
was not unlawful in the sense indicated in Section 11,
second paragraph, of the Enforcement Act. Hence there are no
prerequisites for the return of Amanda to the United States
under the Enforcement Act. Thus Anne Franzen Johnson’s plea
must be approved in essential aspects.

024 As a result, there are no grounds for further action
regarding Anne Franzen Johnson’s petition for a
child-psychiatric report concerning Amanda. As regards the
legal costs, Anne France Johnson (missing words) released
from liability to compensate Thomas Johnson for legal costs
in the lower courts. This question must be considered in
accordance with the provisions contained in Section 21 of
the Enforcement Act and Chapter 21. Section 13, first
paragraph. of the Code relating to Parents, Guardians and
Children. Under these provisions, the Court may, in
accordance with what is reasonable, institute that one party
must pay the other party’s costs. In making an overall
assessment of the facts which have emerged in this case, the
Supreme Administrative Court finds that it would not appear
to be reasonable for either of the parties to be made liable
for the other party’s legal costa. This applies to the
parties costs both in the lower courts and in the Supreme
Administrative Court.

025 As legal representative and counsel under the Legal
Aid Act for Anne Franzen Johnson, Advokat Suzanne Johanson
has requested payment of SEK 21,939 for 23 hours work.
Primarily in view of Susanne Johanson’s familiarity with the
case, after representing Anne Franzen Johnson in both the
County Administrative Court and the Administrative Court of
Appeal, the Supreme Administrative Court sets the payment
for work performed in the Supreme Administrative Court at
SEK 14,310, for what may reasonably be considered to be 15
hours work.

RULING BY THE SUPREME ADMINISTRATIVE COURT

026 In amending the judgment of the Administrative Court
of Appeal, the Supreme Administrative Court annuls the
judgment of the County Administrative Court regarding the
return of Amanda Johnson under the Act concerning
Recognition and Enforcement of Foreign Decisions relating to
Custody, etc. and concerning the Return of Children
(1989:14).

027 Thus, the Supreme Administrative Court annuls the
Judgment of the County Administrative Court and the
Administrative Court of Appeal, releasing Anne Franzen
Johnson from liability to pay Thomas Johnson’s legal costs
In both courts.

028 The Supreme Administrative Court rules that, under the
Legal Aid Act, payment of SEK 14,310 is to be made to
Suzanne Johanson for her services in the Supreme
Administrative Court. Neither party is made liable to pay
the other party’s costs in the Supreme Administrative Court.

(signed) (signed)
Stig Brink Lars Tottle

(signed) (signed)
Ulla Wadell Stig von Bahr

(signed) (signed)
Ariie Baekkevold Margareta Larsson
Clerk of the Supreme
Administrative Court

Dept: III
Reported on 27 Mar 1996