Why Was This Mother Allowed to Stay in France with Her Child, Yet Nathalie Gettliffe's Children were Forced to Come Back to Canada

Name of case
HC/E/FR 814 [27/10/2005;Cour d'Appel de Paris, 1ere Chambre - Section C (France);Appellate Court]
CA Paris 27 October 2005, 05/15032

Date of decision
27 October 2005

Requesting State
UNITED STATES

Requested State
FRANCE

Name of court
Cour d'Appel de Paris, 1ere Chambre - Section C (France)

Status of case
Final

Level of court
Appellate Court

Published/where available


Articles considered
13(1)(b), 12(2)

Articles or provision upon which disposition of case based
13(1)(b), 12(2)

Order
Appeal allowed; return refused.

Facts
The application related to a child who in December 2003 was removed
from her home in the United States by her mother and taken to France.
The child was 7 1/2 years old at the time and her parents shared
custody rights.
On 29 June 2005 the Tribunal de Grande Instance de Paris ruled
that the removal was wrongful and ordered the return of the child.

The mother appealed.


Ruling
Appeal allowed and return refused; the child was now settled in her
new environment pursuant to the terms of Article 12(2).

Cases and authorities referred to


Judges
M Perie, Pdt, M Hascher, conseiller, Mme Chadeville, conseiller deleguee.

Legal basis for decision


Art 13(1)(b)
The mother sought to invoke the grave risk of harm exception by arguing that: the father had taken drugs; the father's new partner had behaved inappropriately towards the child's step-brother; a return would separate the child from her step-brother and that a return would prevent the child from seeing her mother.
The Cour d'appel rejected these arguments and a request for a psychological evaluation of the child, finding that; the step-brother's accusations of drug taking by the father lacked detail and did not rebut the results of blood tests done on the father in March 2003; and that the allegations of seduction by the father's new partner had no relevance to the abducted child and her return.



Article 12(2)
The Cour d'appel noted that Article 12(2) was applicable to the application, more than 12 months having elaspsed between the removal and the initiation of proceedings.
In evaluating the child's settlement consideration was given to the fact she had commenced her third year of schooling in France, she was performing well and in a discussion with a school psychologist she affirmed that she wished to continue with her studies in France and to stay with her mother.

Pursuant to the United Nations Convention on the Rights of the Child, the child's views were gathered and these confirmed to the Court that she was now settled in her new environment. The Court thereby ruled that the best interests of the child required that she not be returned to the United States.



Comments
The Cour d'appel relied directly on Article 12(2) of the UN Convention as justification for ascertaining the views of the child, rather than considering her objections within the separate Hague Convention exception of Article 13(2).
In this the Court was clearly influenced by the decision of the supreme civil jurisdiction in France, the Cour de Cassation, in its decision of 18 May 2005:

Cass Civ 1ère 18/05/2005 (Arrêt n° 891, pourvoi n° 02-20.613).

In this judgment the Cour de Cassation departed from previous rulings in finding that Article 12(2) of the UN Convention was self-executing and could thereby be relied on to allow children to intervene directly in private law proceedings in France.

The approach of the Cour d'Appel in considering the views of the child in assessing the issue of settlement does moreover mirror that adopted by the English High Court in the case of : Re C (Abduction: Settlement)(No 2) [2005] 1 FLR 938 [INCADAT cite HC/E/815].


THE INTERPRETATION OF ARTICLE 13(1)(b) IN FRANCE

The treatment of Article 13(1)(b) by French courts has evolved, with a permissive approach being replaced by a more robust interpretation.

Judgments of France’s highest jurisdiction, the Cour de cassation, from the mid to late 1990s, may be contrasted with more recent decisions of the same court and also court of appeal decisions, see:

Cass. Civ. 1ère 12 juillet 1994, Rev. Crit. 84 (1995), p. 96 note H. Muir Watt; JCP 1996 IV 64 note Bosse-Platière, Defrénois 1995, art. 36024, note J. Massip [INCADAT cite: HC/E/FR 103];

Cass Civ 1ère 21 novembre 1995 (Pourvoi N° 93-20140), [INCADAT cite: HC/E/FR 514];

Cass. Civ. 1ère 22 juin 1999, (N° de pourvoi : 98-17902), [INCADAT cite: HC/E/FR 498];

And contrast with:

Cass Civ 1ère 25 janvier 2005 (N° de pourvoi : 02-17411), [INCADAT cite : HC/E/FR 708] ;

Cass. Civ 1ère 14 juin 2005 (N° de pourvoi : 04-16942), [INCADAT cite : HC/E/FR 844];

Cass. Civ 1ère 13 juillet 2005 (N° de pourvoi : 05-10519), [INCADAT cite : HC/E/FR 845];

CA Amiens 4 mars 1998, n°5704759, [INCADAT cite: HC/E/FR 704];

CA Grenoble 29 mars 2000 M. v. F., [INCADAT cite: HC/E/FR 274];

CA Paris 7 février 2002 (N° de pourvoi : 2001/21768), [INCADAT cite: HC/E/FR 849];

CA Paris, 20/09/2002 (N° de pourvoi : 2002/13730), [INCADAT cite: HC/E/FR 850];

CA Aix en Provence 8 octobre 2002, L v Ministère Public, Mme B et Mesdemoiselles L (N° de rôle 02/14917) [INCADAT cite: HC/E/FR 509];

CA Paris 27 octobre 2005, 05/15032 [INCADAT cite: HC/E/FR 814].

Updated 22 July 2006.


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