Findings of fact and Conclusions of Law Malaysia through Poland

MALAYSIA

MALAYSIA-AUSTRALIA-USA: (1997) STATE CENTRAL AUTHORITY (for the father, SMITH) v AYOB

MAURITIUS

MAURITIUS-USA: (1998) (Return Denied) (See comments by W. Hilton, 20 Apr. 2000)PIERCE v PIERCE. "The Supreme Court of Mauritius finds that, as a matter of law, The Convention does not apply since it has not been implemented as a matter of local law. When The Convention was put into effect in Mauritius, it was hoped that the Mauritian Supreme Court would, in future cases, follow the reasoning of Prof. Elisa Perez-Vera in the "Explanatory Report which states;"The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them-those of the child's habitual residence-are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration." MAURITIUS-USA: (2000) (Return Denied) The mother decides not to return to the United States with the two children. The father applies under the Convention for their return. The Supreme Court of Mauritius took in to consideration the "tender age of the children" and the fact that the mother was not prepared to go back to America. Comment by WM. Hilton: "The Supreme Court of Mauritius, for a second time, finds that, as a matter of law, The Convention does not apply since it has not been implemented as a matter of local law. The court also seemed to give significant weight to the statement of the mother that she would not return to South Carolina, because of the tender years of the children. This is of course contra to the cases under The Convention where it is common ground that a party cannot create a basis for non-return of the child.

MEXICO

MEXICO-USA: (1995) (Case remanded back to the district court) (13b) NUNEZ-ESCUDERO v TICE-MANLEY. This case is on appeal from a district court's order denying the return of the child to Mexico. The appeals court reverses the district court and remands it back to the district court for further considerations. The Court stated that the district court must first make a determination of habitual residence under article 3. The court ordered the district court not to consider custody or the best interest of the child. The district court can only address an article 13b defense. MEXICO-USA: (1997) (Return ordered) (Article 13) MARTINEZ DE ARRENDONDO v SALTO. The mother took the children to California and concealed them. The father applied for their return under the Hague Convention. The children, 11 and 12, were interviewed by a court appointed mental health professional. Based on the interview, the children were ordered returned to Mexico and the father. Mr. Hilton represented the father. The mother's lawyer filed an appeal as well as an application for an ex parte order to have the children's returned stayed pending the appeal. The children were ordered returned on Saturday the 8th and the response to the request for a stay was answered on Monday the 10th. The children were already in Mexico. MEXACO-USA: (1997) (Return ordered) HURTADO v RUIZ The mother brought the child to California. The father applied to have the child returned to Mexico. The mother did not have any legal representation in court. It appeared that the mother was very poor and most likely could not afford adequate legal representation. The father was represented by Mr. Hilton and his services were Pro Bono. MEXICO-USA: (1998) (Return ordered) (FLORES v CONTRERAS). The lower court ruled that Mexico was the habitual residence of the child and that the father wrongfully retained the child in the USA. The father appeals the lower court decision. The appeals court affirmed the lower courts ruling. MEXICO-USA: (2000) (Return ordered) HERNANDEZ v LOPEZ. Mother applies for return from Mexico under the Hague Convention. The court returned the child to the authorities of California. W.M. Hilton foot notes: "It is implicit in actions under The Convention that the courts of all contracting states have equal dignity and that this is an accepted legal position once a country becomes a contracting state. If this were not so then the Convention would not have any validity. The Mexican court recognizes that the sole issue before it is whether or not the child should be returned to San Diego and that the Mexican Court, in this proceeding, could not go into the merits of the case, e.g., ". . . will not decree on the root under cause of the matter regarding custody rights. See Art. 19 of The Convention. The Mexican Court finds that the child can be returned safely to San Diego, despite the unproven allegations of the father that the mother is somehow unfit. This is done by providing a "Safe Harbor" return, by having the California agents available to help with the return".

MOROCCO

MOROCCO-USA: (1996) (Family Part's order is reversed) (Use of the UCCJA) IVALDI v IDALDI. This case is on appeal from the Family Part's order directing the mother to return the child to the United States. The court held that the Family Part lacked subject matter jurisdiction and should have deferred to the divorce and custody proceedings that had already commenced in morocco.

NETHERLANDS

NETHERLANDS-UNITED KINGDOM: (1991) (Return ordered) The mother took the children to England for a visit. The father followed and the mother informed him that she wanted to end their relationship and stay in England. The father takes the children back to Netherlands. The mother applies for their return. She had gotten a court order prior to children's removal, forbidding the children's removal. The court ordered the child returned to England. NETHERLANDS-USA: (1993) (Return denied) (habitual residence) BURGESS v SMID. The father and the Central Authority are asking the court to return the child to the United States. The district court had denied the return in 1991. The Appeals court upheld the district courts decision in 1991and Central Authority appealed to the Netherlands Supreme Court. The Supreme Court dismissed the appeal. NETHERLANDS-USA: (1996) (Return ordered) BERENDSEN v NICHOLS. The court found that the father wrongfully retained the children in the United States. That there was no evidence that the children would be subject to grave risk if returned to Holland. The court further found that the mother did not acquiesce to the custody of the children. NETHERLANDS-USA: (1996) (Fees and costs) BERENDSEN v NICHOLS. The mother comes before the court asking for attorney's fees and costs. The awarding of fees are discussed by the judge. He does make reference to other court decisions. NETHERLANDS-USA: (1998) (Return denied) TURNER v FORWEIN. Father is accused of sexual abuse. The court found that there was sufficient evidence to support the claim of abuse. The Court denied the return to Holland. (See Mr. Hiltons footnotes) NETHERLANDS-USA: (2000) (Return ordered) (13(b) defense)The mother admits that the removal of the children from The Netherlands was wrongful, but contends that she did it to remove the children from excessive corporal punishment by the father and that the children suffered from psychiatric disorders caused by domestic violence. The court ordered the return of two of the three children (one was 15) subject to conditions detailed in a letter from the Ministry of Justice in the Netherlands. (They indicated they would place the children in foster care until all allegations by the mother and children could be investigated).

NEW ZEALAND

NEW ZEALAND-AUSTRALIA: (1993) (Return ordered) Mother took children to Australia from New Zealand. The mother claimed abuse by the father. Children were ordered returned to New Zealand. Mother appealed. Appeal dismissed. NEW ZEALAND-AUSTRALIA: (1993)POLICE COMMISSIONER OF SOUTH AUSTRALIA v BENNETT NEW ZEALAND-AUSTRALIA: (1994) (Return ordered) THE CENTRAL AUTHORITY FOR NEW ZEALAND (for the father, MADDEN) v HOFMANN: Child was taken by the mother to New Zealand. Child was ordered returned to Australia. NEW ZEALAND-DENMARK: (1996) (Returned ordered on appeal) (Grave risk) A v A. The mother took the child from Denmark to New Zealand. The Family Court refused to return the child sighting grave risk. This decision was over turned by the High Court stating that the Danish courts had all the information they needed to make a proper decision regarding the safety of the child. The mother appeals that decision. The court of appeal denied the mother's application for leave to appeal and denied a stay of the High Courts order. NEW ZEALAND-UNITED KINGDOM: (1997) (Return ordered) (13b, grave risk) (Age of maturity) NARAINE v NARAINE. The mother took the children to New Zealand for a visit. The mother alleged abuse by the father. The father applies for return under the Hague Convention. The court, after testimony by a clinical psychologist, determined that the children, who have reached an age of maturity, in the courts opinion, objected to the return to the father rather than a return to England. The court ordered the return to the English Central Authority in order to secure the safety of the children until the matter was heard by the English authorities. NEW ZEALAND-USA: (1992) (Return ordered) SALVADOR v SALVADOR.The children went to Hawaii for a visit with the father. The father did not return the children as agreed. The court ordered the children returned to New Zealand. NEW ZEALAND-USA: (1993) (Return ordered) WOLFE v WOLFE. The mother removed the child from Texas, USA and went to New Zealand. The court ordered the return expressing a dissatisfaction that the two parents could not work out their differences, which the court felt was in the best interest of the child. NEW ZEALAND-USA: (1993) (Return ordered) LOCKLEY v LOCKLEY. The mother took the children to the United States for a visit. The mother refused to return the children at the end of the visit. The court ordered the return to New Zealand, which the court determined to be the habitual residence. The father was represented by Mr. Hilton. NEW ZEALAND-USA: (1993) PACICCA v PACICCA. The mother took the children to New Zealand. It was clear to the court that the habitual residence was New York, USA and ordered the children returned. In regards to the mother's charge of grave risk, the court felt those matters were better left to the courts of the United States. The court sought an undertaking from the father that he would not "initiate any prosecution" in order to allow the mother to return to the U.S. NEW ZEALAND-USA: (1993) (Return ordered) CHILD ABDUCTION UNIT, DA's OFFICE, CALIFORNIA (For the Father) v MOTHER. The mother took the child to New Zealand with the permission of the father and the courts. She decided not to return. The Court in California ordered the Child Abduction Unit of the DA's Office to secure the return of the child. Acting on behalf of the father, the Child Abduction Unit applied for the return of the child under the Hague Treaty. The court ordered the child returned to the jurisdiction of the California courts. NEW ZEALAND-USA: (1994) (Return ordered) HAYWARD v HAYWARD. The mother took the children to New Zealand. The father applies for their return. Mr. Hilton supported the return through an affidavit to the court. Mr. Hilton states that "no orders existed granting one or the other any rights of custody and neither parent had given the other permission to remove the children from their habitual residence of California". Under California law both parents have "equal and co-existing rights of custody". The Court ordered the children returned to California. The case was appealed to the High court of New Zealand. The appeal fails and the orders of the lower court are confirmed. NEW ZEALAND-USA: (1998) HARLIWICH v HARLIWICH (Osmers) Mother takes the child to the United States. The court ordered the child returned. Ruled New Zealand was the habitual residence and that the removal was wrongful.

NIGERIA

NIGERIA-USA: (1995) (Return denied) (habitual residence) BURTIN v OYEKAN. The mother took the children to the United States. The father applies for their return to England. The mother holds that the children were not habitual residences of England, but rather Nigeria where she feels they were settled. The court ruled that Nigeria was in fact the habitual residence of the children and dismissed the petition for return to England.

NORWAY

NORWAY-ISRAEL: (1998) (Return denied) (Age of maturity) (In Utero) EL-HATEEB v EL-HATEEB. This case involves the mother retaining the four children in Norway. The father files for their return to Israel. The court rules that the two oldest children, 14 and10, indicated they did not want to return to their father. The court felt it would do harm to separate the youngest children from their mother. W. M. Hilton: There was no showing that the Israeli courts could not or would not provide the protection that the mother and the children may have needed and there was no showing that, given the facts of the case, the Israeli courts would not reach a similar conclusion, that is, that the children would be better off with the mother and that suitable protective orders could be made by the Israeli courts. NORWAY-USA: (1995) (Return ordered) STORVIK v STORVIK. The father came to the United States as a visiting scholar. His wife and child accompanied him. The mother came on a J-2 visa. The mother retains the child in the U.S. claiming the habitual residence has shifted from Norway to the U.S. The court ruled that since the stay was temporary, as indicated by the J-2 visa, the habitual residence did not change from Norway. The court orders the child returned to Norway. (Mr. Hilton for the father) NORWAY-USA: (1996) (Motions for summery judgement denied) FJELDHEIM v FJELDHEIM. The mother takes the child for a visit to the United States. The lower court ruled that the child was not wrongfully retained in the U.S. because the child had reached an age of maturity to decide where she wanted to live. Both the mother and father apply to the U.S. district Court for a summary judgement regarding the return of the child to Norway pursuant to the terms of ICARA. The court ruled that this was a matter for trial and denied both petitions of summery judgement. NORWAY-USA: (1996) (Settled in) (Article 13) FJELDHEIM v FJELDHEIM. "This matter comes before the court on petitioner's motion for partial reconsideration of it motion and order denying summary judgement and setting this matter for trial" The motion for reconsideration is granted in part and denied in part. The court determined that the trial of the article 13 issue would be determined in accordance with Friedrich. (Are the courts in Norway able to provide the child protection.)? The court must determine, at trial, the date of removal or retention. (Has it been over one year)? This will allow the court to determine weather the child is in fact settled into a new environment.

PAKISTAN

PAKISTAN-UNITED KINGDOM: (1992) (Return ordered) (Non Convention case). The mother took the youngest of three kids to England with out the fathers knowledge. The father applied for their return under Children's Act of 1989. (Pakistan was not a signatory of the Hague Convention) The court decided that the children should go straight back to Pakistan. The mother appealed. The Court of Appeals held that "it was settled law that the court must apply the philosophy of the Hague Convention in non-Convention cases" the appeal was dismissed. PAKISTAN-UNITED KINGDOM: (1995) (Wardship) (Habitual residence) The child was sent to Pakistan to attend school. The mother wanted the child to return to England and the father felt the child should remain in Pakistan. The English court determined that it did have jurisdiction and awarded wardship to the mother. It was determined that both parents were habitual residence of England and that by attending school in Pakistan the child did not change her habitual residence.

PANAMA

PANAMA-USA: (1996) (Return ordered) MORENO v MAHDI. The father took the child to the United States. The mother applies for return under the Hague Convention. The father does not object to the return and appeared Pro se. The court ordered the return to Panama. PANAMA-USA: (2000) (Interim Orders) In most cases interim orders will be necessary, e.g. to ensure that the child is not removed from the jurisdiction pending a hearing on the merits of the Petition; to stay local actions for custody, etc. The court has the specific authority to make these interim orders under Art. 7(b) of The Convention and/or 42 U.S.C. 1604.

POLAND

POLAND-USA: (1993) (Court ruled mother must return child from Poland) ROSZKOWSKI v ROSZKOWSKI. The mother sent the child to Poland. The father requested the court to order the return of the child. The mother and father remained in the U.S. The court took the case to determine if it had jurisdiction to determine the issue of custody and weather the court had jurisdiction to enter an order requiring the child to be returned from Poland to NJ. The court ruled that New Jersey was the child's habitual residence and ordered that pursuant to The Hague Convention the mother is required to return the child from Poland to the United States. POLAND-USA-SWEDEN: (1995) (Return ordered) RYDDER v RYDDER. The mother took the children to the US. The father applies for their return. The court rules that Poland is the habitual residence and orders the children returned. The mother appeals. The appeals court affirmed the lower court on the return, but they reversed and remanded the award of fees and legal costs to be reduced in accordance with their opinion. POLAND-USA: (1996) (Discussion on habeas corpus) ZAJACZKOWSKI v ZAJACZKOWSKI. The father filed this action under the Hague Convention seeking the return of child to Poland. The court set a date for the mother to appear before the court to show cause why a writ of habeas corpus should not be issued and why the child should not be returned to Poland.