Johnson and Johnson (USA 1996) United States Note No. 64 of 30 Jun 1996 8 International Abduction [USA 1996] =========================================================== No. 064 001 The Embassy of the United States of America presents its compliments and refers to the Regeringsratten Supreme Administrative Court decision of 9 May 1996 in Case No. 7505-1995. In this decision, the Regeringsratten denied the petition of Mr. Thomas Johnson, a United States citizen, under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") for the return of his daughter, Amanda Kristina Johnson, to the United States. The United States finds this decision inconsistent with the plain language of the Hague Convention as well as the overall object and purpose of the convention which are, as stated in Article 1, to "secure the prompt return of children wrongfully . .. retained in a Contracting State" and to "ensure that the rights of custody and access under the law of one Contracting State are effectively respected" in other Contracting States. More specifically, the Regeringsratten decision disregards Sweden's obligations under Articles 1, 3 and 16 of the Hague Convention. 002 In 1986, Mr. Johnson married a Swedish citizen, Ms. Anne Franzen. Amanda Kristina Johnson was born in Switzerland in 1987 to Mr. Johnson and Ms. Franzen. Amanda Johnson lived with her parents in Switzerland until 1990. From 1990 until 1993, Amanda Johnson lived in the United States, alternatively with her father in Virginia and with her mother in New York. In February 1992, Mr. Johnson and Ms. Franzen were divorced, and voluntarily entered into a consensual custody agreement, executed by a Virginia state court, to share joint legal and physical custody with primary custody shifting between the father and mother approximately every two years. Under the 1992 agreement, each parent was entitled to liberal visitation with Amanda during the time that the other parent enjoyed physical custody. In February 1992, Amanda was clearly "habitually resident" in the United States within the meaning of Article 4 of the Hague Convention. In accordance with the 1992 custody agreement, in June 1993, Amanda left the United States to live in Sweden with her mother for two academic years, or until August 1995, at which time her father was to receive primary physical custody. 003 Consistent with the fact that Amanda was habitually resident in the United States at the time of the agreement, the February 1992 custody order was modified and finalized in December 1993 to include a voluntary, consensual agreement by both Mr. Johnson and Ms. Franzen that the state of Virginia would remain the place of Amada's habitual residence and that the Virginia court would maintain continuing and exclusive jurisdiction to resolve all future custody issues. Specifically, the December 1993 custody order stated that "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. 004 Notwithstanding the existence of the December 1993 custody order, including the voluntary agreement regarding the Virginia court's exclusive jurisdiction over custody matters, in January 1995, Ms. Franzen filed a petition in the Solna district court of Sweden seeking to establish sole custody of the child. Furthermore, in August 1995, Ms. Franzen refused to return Amanda to her father as agreed to by Ms. Franzen and duly memorialized in the December 1993 custody order. Ms. Franzen's refusal to return Amanda Johnson to her father prompted Mr. Johnson to file a petition with the Swedish Central Authority for the return of Amanda under the Hague Convention. 005 As noted above, the Hague Convention establishes a mechanism to ensure "the prompt return of children wrongfully . . . retained in a Contracting State." A court adjudicating a Hague Convention petition must order the return of a child to the country of the child's habitual residence unless the court finds that a specific Article 13(b) exception to the return duty applies. The 9 May 1996 Regeringsratten decision contravenes the Hague Convention. Without invoking an Article 13(b) exception, the Regeringsratten declined to return Amanda Johnson to the United States, where she had been habitually resident, thus preventing her father from exercising physical custody during the remainder of the 1995-1996 academic year and the following year. Notwithstanding the fact that Amanda had been habitually resident in the United States for several years at the time her parents agreed that she would live in the United States from August 1995 until August 1997, the existence of the December 1993 Virginia custody order, and earlier decisions by both the Lanaratten (administrative trial court) and the Kammardtten (administrative appeals court) ordering Amanda's return to the United States under the Hague ConvenTion, the Regeringsratten surprisingly found that Sweden and not the United States was Amanda's place of habitual residence. 006 Focusing on the Swedish law of "hemvist", the Regeringsratten based its decision on the grounds that Amanda had been living in Sweden for a little over two years, that she had adapted to life in Sweden, and that the 1993 Virginia custody order accorded her mother a greater number of years of primary custody than her father. Such reasoning turns the Convention on its head by rewarding the very type of conduct that it is designed to deter. This decision permits a parent wrongfully to retain a child for the purpose of re-opening a custody proceeding in a more sympathetic jurisdiction, whereas the Convention requires parents to resolve custody disputes in the child's place of habitual residence or the country of original jurisdiction. 007 The Regeringsratten decision represents a serious departure from Sweden's obligations under Articles 1, 3 and 16 of the Hague Convention. Specifically, Article 1 requires "rights of custody and access under the law of one Contracting State to be effectively respected" in other Contracting States. The Regeringsratten decision frustrates the rights of custody enjoyed by Mr. Johnson prior to Amanda's wrongful retention in Sweden. These custody rights were mutually agreed upon by both Ms. Franzen and Mr. Johnson and established under the law of the United States by virtue of the December 1993 State of Virginia custody order. Article 3 of the Convention states that the retention of a child is wrongful where "it is in breach of rights of custody attributed to a person ... either jointly or alone . . . under the law of the State in which the child was habitually resident immediately before the retention." Article 3 further provides that rights of custody may arise "by reason of an agreement having legal effect." It is indisputable that the December 1993 Virginia court order granted Mr. Johnson joint physical and legal custody over Amanda Johnson, and that both Ms. Franzen and Mr. Johnson entered "an agreement having legal effect," establishing the State of Virginia as Amanda's place of habitual residence. In this regard the Regeringsratten also observed that Amanda was living in Sweden "against her father's will." Ms. Franzen's retention of Amanda Johnson after August 1995 was and continues to be clearly wrongful within the meaning of Article 3. 008 Additionally, Article 16 of the Hague Convention prohibits the courts of the State in which a child has been wrongfully retained to decide on the merits of custody. By declining to order the return of Amanda to the United States, the Regeringsratten has effectively transferred jurisdiction over the merits of custody from the Virginia state court to the courts of Sweden, where Amanda has been wrongfully retained. As noted in the travaux proparatoires, Article 16 seeks to prevent "a decision on the merits of custody being taken in the State of refuge." Convention and Recommendation adopted by the Fourteenth Session and Explanatory Report by Elisa Perez-Vera, April 1981. (Hereinafter Perez-Vera Report) 009 The decision of the Regeringsratten not only derogates from Sweden's obligations under Articles 1, 3 and 16 of the Hague Convention, but also threatens the greater objectives of the Convention, which are to deter parental kidnapping by eliminating the advantages that may be enjoyed by the abductor in the country to which the child has been wrongfully retained, to prevent a parent who has wrongfully retained a child from unilaterally establishing jurisdiction in his/her country of nationality with a view toward obtaining custody, and, most importantly, to protect children by ensuring that they enjoy close contact with both parents charged with their upbringing. Furthermore, the Hague Convention also seeks to protect the rights of joint custody. In this regard, the travaux proparatoires are unambiguous: ". . . from the Convention's standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, . . . and this wrongfuLness . . . derives from the fact that such action has disregarded the rights of the other parent . . . and has interfered with their normal exercise . . . (T)he whole tenor of article 3 leaves no room for doubt that the Convention seeks to protect joint custody. ." Perez-Vera Report at 35, 40. 010 For the reasons stated above, the United States considers Sweden to be in violation of its obligations under the Hague Convention. The decision of the Regeringsratten will not only discourage the voluntary settlement of child custody disputes between citizens of the United States and Sweden, but it will also tend to discourage voluntary settlement between parents of all Hague Convention Contracting States. As a result or this decision, children whose parents are of different nationalities are less likely to enjoy regular contact with both parents, to develop strong ties with both parents, or to be protected from the harmful effects of self-help measures undertaken by parents to gain an upper hand in resolving child Custody disputes. In other words, the decision can be expected to have an immediate, negative effect on transnational custody disputes among nationals of Convention States -- a result that is manifestly and significantly contrary to the Hague Convention and to the best interests of the affected children. 011 The United States intends, therefore, to recommend that the agenda of the 1997 Special Commission of the Permanent Hague Conference include a discussion of habitual residence and joint custody under the Hague Convention for the purpose of reaching an agreement among Contracting States not to support Sweden's interpretation of these terms. In the meantime, 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. 012 The Embassy of the United States of America avails itself of this opportunity to renew to the Ministry of Foreign Affairs the assurances of its highest consideration. Embassy of the United States of America, Stockholm, June 20, 1996.