SWEDEN – JOHNSON – 1996(2)

Johnson and Johnson (Sweden 1996)Response to United States Note No. 64 of 30 Jun 1996
7 International Abduction [SWEDEN 1996]
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MINISTRY FOR FOREIGN AFFAIRS
Division for International Legal Assistance

001 The Ministry for Foreign Affairs presents its
compliments to the Embassy of the United States of America
and has the honour to refer to the Embassy’s note No 064 of
30 June 1996.

002 In this note “The United States strongly urges the
Government of Sweden to amend the 1989 Enforcement Law,
Sweden’s implementing legislation for the Hague Convention,
to remedy the inconsistency between Sweden’s hemvist law and
its obligations under the Hague Convention, and to take all
other necessary steps to correct the Regeringsratten
decision of 9 May 1996

003 The Swedish Government is not aware of any
contradictions to the Hague Convention in the 1989 Swedish
legislation implementing the Hague Convention into Swedish
law. In particular it should be emphasized that Section 11
second subparagraph of the 1989 Enforcement Act is a
faithful translation of the definition of “wrongful” removal
or retention of the Convention (Article 3, first
subparagraph). Traditionally, the word “hemvist” is used in
Swedish international family law to correspond to the Hague
concept of “habitual residence”.

004 “Habitual residence” is not defined neither in the
Hague Convention nor in the 1989 Enforcement Act. It is up
to the court to interpret this concept. In doing so
Regeringsratten has paid special attention to the
terminology employed in the Hague Convention and its
purposes. Like in many other countries, courts in Sweden are
independent of the Government. It would be contrary to the
constitution of Sweden if the Government should to “correct”
Regeringsratten judgment of 9 May 1996.

005 The difficulties of the United States to accept the
judgment of Regeringsratten seem to stem at least to some
extent from differences of the national custody
legislations. In Swedish law, questions of custody are
regulated through mandatory rules which may not be set aside
by an agreement between the parties. It is not possible for
the parents, e.g., to create by agreement legally effective
permanent habitual residence for the child or to agree in
advance on exclusive jurisdiction for the court of a certain
country.

006 Finally, it should be pointed out that the judgment of
Regeringsratten concerns only the question whether the
conditions of the Hague Convention for the return of the
child were fulfilled. The judgment is in no way a decision
on the merits of the custody issue.

007 The Ministry for Foreign Affairs avails itself of this
opportunity to renew to Embassy of the United States the
assurances of its highest considerations.

Stockholm 31 July 1996