Benson v Benson (County Admin. Court 1998) Skane County, Section 114 Case No 9748-98 18 International Abduction [US 1998] =========================================================== COUNTY ADMINISTRATIVE COURT IN SKANE COUNTY SECTION 114 Case No 9748-98 VERDICT 19 Oct 1998 Malmo, Sweden PLAINTIFF Greg Benson Counsel: Attorney Elias Arfwedson S:t Petri Kyrkog. 11 222 21 LUND DEFENDANT Monika Benson Counsel as well as representative according to the legal aid law: Attorney Sol-Britt Ingemansson The Public Law Office Sjalbodg. 10 211 35 MALMO CASE 001 The transfer of children according to Paragraph 11 in the Law (1989:14) on the recognition and execution of foreign custody settlements etc. and the transfer of children (Law of transfer). ----------------------------------------------------------- 002 Greg Benson has, on the 7th of September 1998 at the County Administrative Court, applied for the transfer of his and Monika Benson's four daughters, Amanda, Elina, Karin och Emily, to his address in the US. As cause for his application he has stated that Monika Benson is detaining the children in Sweden and he has brought the following as evidence, claiming that it's an illegal detainment. The family has resided in Sweden until August 1997, when the family moved to San Diego, California. While in Sweden he developed a software program for Internet commerce. 003 However, his company did not find any financiers in Sweden and the family decided to move to San Diego so that he could search for financiers there. Financing was arranged quite soon and the company was established. At the time, the family was in agreement that they would reside in San Diego for the next few years. The three oldest children were enrolled in an American school Fall term 1997. In June 1998 the family traveled to Sweden on vacation and Monika began to speak of wanting to remain in Sweden with the children. She refused to return to the US and said that she intended to enroll the children in a Swedish school at the beginning of the fall term. He thus had to return alone to California, where he has sued for dissolution of marriage and applied for custody of the children. The family has residing San Diego since August 1997. He is professionally active in La Jolla, where he heads an American company. Monika Benson has not been professionally active in the USA. The children have attended an American school for one school year and the intention was that they would return for the Fall term. Thus the family has had Its habitual residence, as defined by the Hague Convention, in San Diego, California. 004 Monika Benson has contested the application and has stated that the children have their habitual residence in Sweden. Greg Benson's claim should therefore be dismissed. In the main she has stated the following. She and Greg entered into marriage in 1986 and the four children are born and raised in Sweden. The company encountered problems and establishment took place in San Diego. However, the company continues to be run in Lund. The family resides in a house in Dalby and they are both listed on the title to the property. She works as Course Coordinator at Medborgarskolan in Lund. In August 1997 the family traveled to San Diego and the intention was to remain there for 10 months, between August 15th, 1997 until June 16th, 1998. Friends and others were informed of their temporary address in the USA, and she requested a leave of absence from her job for the same period. Round-trip tickets for the US trip were bought. It was agreed that a neighbor girl would care for the house during the period the family was away. The house was not rented out. She received a visa to the USA for one year and the family informed the Local Tax Authority that the intention was to stay in the US for 10 months. The children retained their places in school and day-care. The agreement between her and Greg was that the family would experienced difficulty adjusting to life in the US, they were homesick and had serious problems with schooling, friends, etc. The family returned to Sweden on June 16, 1998 and has lived in Sweden ever since. Even Greg has been in Sweden for much of the summer. Both she and the children refused to return to the USA when Greg in August 1998 demanded this. Greg returned alone to the US and the children began attending Swedish schools. In August 1998 Greg unilaterally and falsely reported to the local Tax Authority that the entire family had relocated to the USA. He obtained at that time identification papers which indicated this. However, this was later changed by the Tax Authority. The children wish to remain with her In Sweden. She is the one who has always cared for them. The children have returned to their schools and she has returned to her job, from which she had taken leave of absence. Greg has submitted an application for summons against her in San Diego and she has submitted an application for summons concerning dissolution of marriage, etc. to Lund District Court. 005 Greg Benson has in the main stated the following. During 1996/97 he and Monika agreed that the family savings of 200,000 Swedish crowns was to be used for family expenses since he could no longer withdraw any salary from the company in Sweden. At the time of the move to the US the family had no assets at all. The company in the US, and the effort that was put into It, was what saved the family. The whole project of getting financing in the US Implied his full-time commitment there. When, at the turn of April/May, it was clear that the financing project had succeeded, the family decided to continue its residency in San Diego. A failure In this case would have resulted in the family returning to Sweden. To verify that he and Monika had decided to continue their residency in Son Diego he has stated that a real estate agent has shown some thirty houses to them between May 1 and June 15, 1998. Furthermore he has referred to affidavits showing that Monika has checked out the possibility of registering the children in schools for the school year of 1998/99. The four children are all applicants for the school year of 1998/99 and will be accepted In their respective classes as soon as they get to San Diego. During June and July 1998 the property was put up for lease on four occasions. The return trip was booked for August 19, 1998. It is incorrect that the duration of the stay was just ten months. However, on departure from Sweden the family planned for the next school Year for practical reasons. 006 Monika took a leave of absence, return tickets were booked so that the family could return for the summer vacation in Sweden, and the neighbor was to take care of the property in the meantime. The property was kept unlet In order to be able to return should the project in the US fail. At the departure there was still some uncertainty about the future, but this uncertainty was removed when the financing was successful. Because of this the application to the Tax Authorities was for ten months, and as the reported time was less than a year the Tax Authorities did not make any decision on deregistration. As soon as the application was made in August 1998 the decision of deregistration could be made. The two older children have had difficulties adjusting to life in the USA, but these were normal adjusting difficulties in an environment partly new to them. During the twelve years of marriage the children have once or twice a year traveled to San Diego where the paternal grandparents live and they have spent four to six weeks there each time. Due to these stays the children are familiar with the environment and have family ties to his four siblings and their families. Furthermore the children are bilingual and they are Swedish as well as American citizens. It was not until the summer vacation that Monika started to change her mind about returning to San Diego on August 1 as planned. He and Monika decided to seek family counseling to resolve the question of whether or not it was right to return to the US. This is why the return trip was delayed till August 19, 1998. In the middle of August he returned to Sweden for the third time in two months and was then informed by Monika that she intended to stay in Sweden together with the children. This decision was not known to any other person than herself and the children. Neither friends nor neighbors knew about the decision. The school in Dalby was not notified. A last try to come to an agreement was made on August 19 when they met together with their lawyers. 007 Oral proceeding has been held on October 13, 1998. 008 Greg Benson has maintained his application and has demanded that Monika Benson under penalty of 50,000 Swedish crowns hand over the four children. Furthermore he has demanded that the decision of the County Administrative Court shall be in force immediately and that Monika Benson shall be put under the obligation to pay for his legal expenses. He has in the main stated the following. 009 In 1997 he and Monika jointly decided that the family would live in the US for a trial period. The years preceding this he had commuted between the US and Sweden every other week and this arrangement was not good for the family. The children have gone to school and made friends and adapted to everyday life in the US. In May 1998 the financing of his company in the USA was completed and he wanted to extend the family's stay there. The family Jointly looked at some thirty possible houses in San Diego. It was decided that the family would go to Sweden In June and then return to San Diego in August 1998. 010 Amanda enjoyed school but had difficulties making friends and Karin got a bad teacher - something that has made her situation more difficult. The children were homesick but made friends and enjoyed themselves most of the time. Monika was carrying the burden of taking care of the children when they arrived home from school and she had difficulties accepting and adjusting to her now environment and the children were influenced by her mood. It was due to the uncertainty of the financing of his company that they kept the property in Dalby. All summer he and Monika discussed how they would compromise. It was still unsettled when he changed their state of residence in the national registry. 011 He expected the family to go to San Diego and therefore he changed the address without Monika's consent. With the financing that had been obtained in the US It is totally unacceptable to him to commute to Sweden. Monika and he have agreed all along that she takes care of the children and he earns money for the family. Monika has voluntarily accepted the agreement that the family would try to settle down In the US. Dividing the family makes all family members feel bad. The children are confused now, even though they are In Sweden. They all participated in choosing a house In the USA and they knew they would return. 012 Elias Arfwedson has maintained that the children naturally feel less used to the environment in the US since they have not lived there for long. The case is not about deciding which has been the "permanent residence" of the children. The purpose of the stay in the US has been to secure a permanent income for the family. When the financing was completed it was decided that the base for work had to be the US. It is Monika who is not happy about her situation. Disregarding the attitude she might have had she has agreed to make necessary arrangements for the family. 013 When deciding which is the children's "habitual residence" one should look at the factual circumstances and also take subjective intentions into consideration. It Is not Greg who has decided that the family would stay in the US on his own, but the necessary decisions have been taken in the best interest of the family. It is Monika who has taken the decision to remain in Sweden on her own, which means dividing the family and that by doing so she has tried to gain a better position. This is the kind of unilateral decision that the Hague Convention is created to prevent. The "habitual residence" of the children is San Diego and the case should be transferred there so that Greg and Monika can try to solve their Joint problems there. 014 Monika Benson has contested the application and requested that Greg Benson be obliged to compensate her for the expenses in the case. In the main she has stated the following. 015 It was decided that the family would be away for one year and they notified the gas company, the telephone company, the schools and the day-care among others. In the US she did everything possible to make life enjoyable for the girls. Every day when they got out of school they were homesick for friends and activities. She was advised on how to improve their situation and arranged for horseback riding and dance lessons for the girls. She told Greg about the girls' problem but he just "swept it under the carpet" and said "it will get better". Greg didn't tell her anything until he had decided to stay in San Diego. She wanted to talk it through with Greg but didn't get anywhere. She felt alone, threatened and that Greg alone was in control. In the middle of May Greg threatened her and said that if they didn't look at houses and schools they could not go to Sweden. Therefore, she felt forced into the situation in order to be able to come home at all. The children have now returned to theIr old friends and are now functioning well In Sweden. 016 Sol-Britt Ingemansson has stated that the purpose of the Hague Convention is to protect the interests of the children and should serve two objectives. The first is to stop children from being removed from their normal environment and the second is to prevent one parent from unilaterally arranging for the future of the children. When the residence of the children shall be decided one shall look at various factors such as the duration of the stay and the general circumstances. When determining the children's habitual residence one makes a thorough examination of objective, established facts. 017 In this case, the question Is where the children's permanent connection has been. The children are both Swedish and American citizens. They have been nationally registered in Sweden and have been going to school here. The agreement between Greg and Monika was that the family would spend one school year in the US. Greg has then unilaterally decided that the family should remain In the US. Monika represents continuity in the lives of the children and she is in Sweden. The girls are now back in their familiar environment in Sweden and they have friends and a normal life here. They have not been happy and they have not adjusted to life In the USA. Everything speaks for the fact that the children's residence is and has been in Sweden. GROUNDS FOR VERDICT 018 According to paragraph 11 code of transfer children that have been illegally moved to Sweden or are illegally detained here are to be transferred upon request to the person from whom the child is withheld. If the child immediately before the abduction or the detainment had habitual residence in a country that has entered the Hague Convention. 019 A main principle of the convention is that it shall not be to anyone's advantage to abduct a child from its habitual residence or to detain a child in a foreign country (Government bill 1992/93:139 pp 12-). 020 In Government bill 1988/89:8 pp 40- the following Is concluded. 021 Within the Convention the right that has been violated in order to be able to use the code of transfer must be denoted as "rights of custody", which includes such rights as refer to the custody of the child, among them the right to decide where the child has its habitual residence. The question of who has been guardian as well as the question of whether or not there has been an illegal abduction or detainment are decided according to the law of the country where the child had its habitual residence when the abduction or detainment took place. Furthermore It is concluded that if, for example, a child's parents have joint custody and one of them, without the consent of the other, abducts the child from the country, it may be a question of illegal abduction. 022 One purpose of the convention is to protect children from being taken away without notice from their normal environment where it has been social and emotional roots. For Instance, this is reflected in the requirement that the guardian must actually have had guardianship and cared for the child at the time when the child was abducted or detained. 023 Concerning the notion of habitual residence the Government bill 1973:158 pp 78- states that a person who is residing in a certain country shall be considered as having his habitual residence there, if the duration and other circumstances are considered permanent. 024 Among significant circumstances apart from the duration of the stay, the purpose of the stay reeds to be mentioned. In principle habitual residence will probably not be considered if the circumstances indicate leaving the country again. However, too rigorous demands cannot be made concerning the person's intentions for the future. 025 Thus, it need not be a permanent residency. A person that only studies or is employed for educational purposes is generally not considered as habitual resident in the country. A person that is employed in a foreign affiliated company to a company in his native country or is at a company's disposal for developing aid in a foreign country may keep his habitual residency in his native country even if the stay in the foreign country is of a considerable length. 026 Furthermore it is stated that time Is not solely determining, but that all circumstances of the stay must be taken into consideration. 027 Some importance must be attached to the question of how strong the attachment is to another country, for example the native country or the previous country of residence. If all ties - possibly apart from the citizenship - are cut with this country a stay with a time limit could also be considered as residency in the country, while maintaining certain ties with the other country may result in the stay not being equal to habitual residency. 028 In the case it has been stated that Greg and Monika Benson have joint custody of their four girls Amanda, Elina. Karin, and Emily. The United States of America has entered into the convention mentioned above. Without doubt Is the fact that the case should be tried according to the code of transfer. In this case the County Administrative Court has to try whether the presented circumstances imply that the four Benson girls are to be considered as having had their habitual residency in Sweden. 029 The County Administrative Court makes the following decision. 030 The basis of the examination of the County Court is that an abduction that has taken place against the will of one guardian cannot without further notice lead to a change of the habitual residency of the child, but on the other hand the circumstances under which the abduction has taken place cannot be judged to be a permanent impediment to establishing a new habitual residence. 031 The four girls were all born and raised in Sweden. In August 1997 the family moved to San Diego. It has been stated that the move was due to the fact that Greg Benson had not succeeded in getting financing In Sweden for a patent of his and that because of this attempts would be made in the US. 032 Considering the case, it is the strong opinion of the County Administrative Court that the habitual residence of the children is Sweden. 033 The County Administrative Court has formed an opinion based on the general circumstances and has found that the Benson family stayed in the US for ten months and that all facts indicate that the intention at the departure In August 1997 was to stay for this period only. 034 Round trip tickets were already booked when departing from Sweden. Planning, as well as measures taken, show that the Intention was to return to Sweden in June 1998, which has occurred. 035 The property was not let during the stay in the US and a neighbor was in charge of the property during this time. The family car in Sweden was lent during the same period. 036 The children have been socially established in Sweden since their birth, the two oldest girls had already started school in Sweden when they moved to the US. 037 Monika Benson has had employment in Sweden from which she has taken a leave during her stay in the US. 038 Greg Benson has maintained that the reason for the move was to save the economy of the family and that the purpose of the move was to remain In the US, but that everything was left in Sweden in case the efforts made in the US should fail. 039 However, he has unilaterally notified the Tax Authorities that the whole family had moved in August 1998, despite the fact that the trip to the US was uncertain. According to him the reason for this was that he expected the family to leave for San Diego. Against this Monika Benson has maintained that she has not been informed of Greg's plans for the family. 040 Since one person's intentions can be considered, but as a rule shall be accorded less Importance, the County Administrative Court finds that only circumstances which are objectively established can be grounds for the decision. The County Administrative Court cannot but take into consideration the children's, at least the two oldest girls', attitude toward the stay in the US. As expressed in the case, they have not adopted to life In the US and they have been homesick. 041 Documents and letters presented In the case show, in the opinion of the County Administrative Court, the strong feelings the girls have about the stay and these feelings cannot be neglected in the complete judgment that is to be done. 042 The above stated implies that the County Administrative Court finds that it is not a question of illegal detainment of the four girls Amanda, Elina, Karin, and Emily. 043 Accordingly Greg Benson's application is denied. 044 According to Chapter 21, Paragraph 1 of the code of parents, to which Paragraph 21 in the code of transfer refers, in cases of execution etc. concerning a party's obligation to recompense the costs of the counterparty, it applies that the County Administrative Court may, within reason, order one party to pay for the counterparty's expenses. 045 When applying the above regulation the main rule is the principle stated in Chapter 18, Paragraph 1 of the code of procedure that the party which has lost the case shall pay for the counterparty's legal expenses. 046 Exception from this main rule can be made when negligent litigation can be proved on the part of the counterparty side. 047 Apart from this, exception will only be made if the circumstances of the case are such that it is not reasonable for the losing party to pay for the counterparty's legal expenses. 048 The County Administrative Court finds no reason to diverge from the general rule and Greg Benson shall compensate Monika Benson' for her legal expenses at the County Administrative Court. JUDICIAL DECISION 049 The County Administrative Court rejects Greg Benson's petition. 050 The County Administrative Court determines compensation, according to the legal aid agreement, and that Sol-Britt Ingemansson, counsel for Monika Benson, obtains the 14574 - (Swedish crowns) claimed, all for counsel. VAT amounts to SKR 2914. - of the above. 051 The County Administrative Court puts Greg Benson under the obligation to compensate Monika Benson for legal expenses of SKR 14574.- at the County Administrative Court. HOW TO APPEAL, see enclosure. Per-Henrik Wallberg Sent to: Monika Benson Counsel Ingemansson Greg Benson Counsel Arfwedson Legal Aid Authority State Department of Sweden HOW TO APPEAL 052 If you wish to appeal the verdict/the decision of the County Administrative Court you should write to the Administrative Court of Appeal in Gothenburg and appeal the verdict/the decision. However, the written statement shall be sent or delivered to the County Administrative Court. State why you think the verdict/the decision should be changed and what change you would like to have. Also enclose such material you consider relevant and that you have not presented earlier. 053 In order for the Administrative Court of Appeal to handle your appeal your written statement must have reached the County Administrative Court within three weeks of the day you received the verdict/the decision. For public authorities the three weeks' time is counted from the day the verdict/the decision was pronounced. If the last day of appeal is a Saturday, Sunday or holiday, Midsummer's Eve, Christmas Eve or New Year's Eve, it is sufficient if the appeal is received the following weekday. 054 State which verdict or which decision you are appealing by noting the name of the County Administrative Court and the number of the case. 055 Sign the written statement, together with your name printed and give your personal Identification number,profession, mailing address and phone number. Address and phone number to your work should be included as well as any other address where you can be reached for service. If you have already given this information in the case and if it is still correct you do not have to give it again. 056 If you engage an attorney, the lawyer can sign the written statement in your place. The attorney shall enclose a power of attorney in the original and give name address and phone number, 057 If any personal or address information is changed, you should report the change to the Administrative Court of Appeal without delay. 058 The address to the County Administrative Court is found in the verdict/decision of the Court. If You need further information about how to appeal you can turn to the County Administrative Court. DECLARATION OF TRANSLATOR Julle Hansen Sodra Parkg. 35 214 22 MALMO Sweden October 30, 1999 TO WHOM IT MAY CONCERN As a native speaker of English fluent in Swedish, I hereby certify that the translations of documents "Verdict of Case no. D748-98" issued by the County Administrative Court on October 19, 1998 are full and accurate translations of the Swedish originals. I may be contacted at 48-40-12 62 77 (home) or 49-40-690 80 00 (work) if you have any questions. Sincerely, /s/ Julle Hansen Julle Hansen US Social Security # 539-02-0167