Court: District Court of Horgen and the Supreme Court of Appeals of the Canton of Zurich. Number: Applicant: Henry Viljaya Rajaratnam and Respondent: Margrith Rajaratnam-Hertig Date: 11 May 1988 and 19 Dec 1988 ----------------------------------------------------------------- Summary of proceedings and partial English translations of the following decisions prepared by Ms Annette Schild, in consultation with Mr Volker Roben: 1 11 May 1988, District Court (Bezirksgericht) of Horgen 2 19 December 1988, Supreme Court of Appeals (Kassationsgericht) of the Canton of Zurich RAJARATNAM V. RAJARATNAM Summary of the Proceedings On 21 January 1988 Mrs Margrith Rajaratnam-Hertig took her two children, Alexander Misha, born on 24 March 1974 (14 years of age), and Natasha Ursula, born on 11 August 1975 (13 years of age), from England to Switzerland. On 8 February she filed a request with the judge of the Family Division of the District Court of Horgen that, as a provisional measure, the children should be placed under her care. After summary proceedings, a provisional order granting her application was issued (Order of the District Court of Horgen of 9 February 1988). In an application to the District Court of Horgen, the father of the children, Henry Vijaya Rajaratnam, represented by the Federal Ministry of Justice as the Central Authority under Article 6 of the Hague Convention on the Civil Aspects of International Child Abduction, asked for the return of the children on the basis of that Convention. In order to decide on this case, the court first examined whether the requirements for the application of the Convention under its Articles 1, 3 and 4 were met. The court stated that before their removal to Switzerland the children were habitually resident in the United Kingdom, that the plaintiff had exercised the rights of custody at least jointly with the defendant, that neither of the children had attained the age of 16 years and that therefore the Convention was applicable. Since less than one year had elapsed from the date of the wrongful removal, the court concluded that, according to Article 12 of the Convention, the children would have to be returned, unless one of the limited exceptions to that rule were applicable. The court started its examination of the possible exceptions with the one provided for in Art. 13(b), according to which judges are not obliged to order the return of a child in case of grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position. With regard to this point, the defendant had alleged that the plaintiff was not able to care for the children properly and that he did not even have the necessary financial means to support them. Since the plaintiff produced evidence to the contrary and the defendant did not offer clear proof of her allegations, the judge decided that return of the children could not be rejected on this ground. It may be interesting to note in this context, that the court, when stating that there was no sufficient proof of a risk to the children, briefly mentioned that the account given by them with regard to their situation in England might be an indication of the contrary. There was, however, no further examination of the question whether and if at all to what extent a declaration of this kind should be taken into account when evaluating the risk of potential harm for the children. The second exception examined by the court was the one in Article 13, paragraph 2, which allows the authorities to refuse the return of a child if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. Since both children had said that they did not want to return to their father, the court had to examine whether they were mature enough and whether they had made their decision freely and without being put under pressure by their mother. After an examination of their statements, the court found that since the children were able to understand the situation and did not simply condemn everything their father did, there was reason to assume that they were mature enough to decide where they wanted to live. (For a translation of this part of the decision see Annex 1.) Therefore the court rejected the application of the plaintiff. Mr Rajaratnam then filed an appeal from this judgment to the Higher Court of the Kanton of Zurich, in which he requested that the immediate return of the children to England should be ordered. In its decision of 18 July 1988 the Higher Court granted the application and annulled the decision under appeal. Furthermore, it ordered the return of the children to their place of habitual residence threatening execution and enforcement by means of an administrative fine. Mrs Rajaratnam attempted to challenge this decision by appealing to the Federal Court. She alleged that the court below in making its decision had violated her constitutional rights. The Federal Court, however, did not go into the merits and dismissed the case on the ground that Mrs Rajaratnam had not yet exhausted all stages of appeal available to her on the level of the Kanton. Thereupon, on 12 December 1988, Mrs Rajaratnam filed an appeal with the Supreme Court of Appeals (Cour de Cassation) of the Kanton of Zurich. The Supreme Court of Appeals, which could only review the decision of the court below with regard to the question whether it had made any serious mistakes in applying the law but could not reconsider the factual basis for the decision, dismissed the complaint on the merits. (For a translation of the decision see Annex 2.) Mrs Rajaratnam then lodged another constitutional complaint to the Federal Court, requesting that her appeal should be given suspensive effect. Mrs Rajaratnam demanded dismissal of her request. In its decision of 9 February 1989 the Federal Court dismissed the action. In the reasons given for the judgment, the court explained that Mrs Rajaratnam had not sufficiently demonstrated in what respect her constitutional rights had been violated by the decision of the Supreme Court of Appeals. The application of Mrs Rajaratnam to grant her reconsideration was rejected on 14 February 1989. ANNEX 1 DECISION OF THE DISTRICT COURT OF HORGEN, P. 13 DD) OBJECTION OF THE CHILDREN TO BEING RETURNED The court can reject the return of a child if it has been established that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views (Article 13, paragraph 2, of the Hague Convention). On application of the defendant the court has ordered the children to be interviewed by Mrs E. Bohren, social worker at the youth welfare office of Horgen. The children described their relationship to their father as being bad. They said that the relationship had deteriorated increasingly during the last two years. The situation had been different when the children were younger and their father had still been employed. The children reported a conflict between their parents which had arisen about two years ago at the time when their mother fell ill. Their father had had no time to talk to them. He had been increasingly unbalanced and had lost control of himself when dealing with the children and their mother. He had chastised Misha and had blamed the children and followed them from room to room with his "speeches". The children had had to look after their mother to an increasing extent; the father had felt less and less capable of doing so and had left the house ever more frequently. Both children said that they did not want to have direct contact with their father at this point but that they would answer his letters. They did not want to see him in the near future neither here nor in England. Natasha in particular was very much afraid of him and feared his explosive temper. Misha did not feel as bad as his sister about taking up contact with his father at a later point if his father were to be friendly and poised again. He did, however, not want to return to England at present. It may be asked whether the children have attained an age and degree of maturity at which it is appropriate to take account of their views (Article 13, paragraph 2, of the Hague Convention). The Convention is applicable to any child who has not yet attained the age of 16 years (Article 4). It can therefore be concluded that children under 16 years of age can attain the necessary degree of maturity. Misha and Natasha are children aged 14 and 12 1/2 years; thus their opinions should be taken into account. The plaintiff regards the statements of the children as they have been reported by the youth welfare office as mere "inventions" in particular in regard to the relationship between father and children and the return of the children to England. He considers it evident that the children must have been "convinced" to a very large extent in order to make such statements. He cannot understand how they could have made such statements. The report of the youth welfare office is unfair and its content can be explained partially by the fact that the children are close to their dying mother. When shown the letters of the children in which they express that they do not want to return to England, the plaintiff asserts that the children must have been forced to write this and that these could not possibly be the words of the children (... that they could not possibly have said this). It may be pointed out that the children are - as mentioned above - 14 and 12 1/2 years old and therefore able to form their own opinions. On the other hand, it must be taken into consideration that children can generally be influenced much more easily than adults. (Article 13, paragraph 2, was adopted with consciousness of the fact that younger children in particular could be subject to influence; see A.E. Anton, "The Hague Convention on International Child Abduction" in the International and Comparative Law Quarterly, July 1981, p- 550 below: WMH FN 01 "The second exception arises where the court finds that the child objects to being returned, and has attained an age and degree of maturity at which it is appropriate to take account of its views (Article 13, paragraph 2): This last rule, although criticized by certain delegates by reason of the vulnerability to pressure of young children, is little more than a corollary of the fact that the Convention applies to children up to the age of 16.") The report of the youth welfare office of Horgen shows that the children do not simply describe their father as a "bad person" but that they also see and mention his positive sides. Mrs Bohren, social worker at the youth welfare office, characterizes the children as being open-minded and realistic. Under these circumstances it cannot simply be said that the children must have been "influenced" or "forced" to comment on their situation in a particular way. It may be left open whether and to what extent the proximity of their mother's death has strengthened the desire of the children to be with her at this time. At all events, both the report of the youth welfare office of Horgen and the letter of the children show unequivocally that the children - at least for the time being - object to being returned to England. It may be concluded that today both children refuse to return to England, i.e. that they object to being returned within the meaning of Article 13, paragraph 2, of the Hague Convention. Therefore, the action is dismissed. ANNEX 2 DECISION OF THE SUPREME COURT OF APPEALS (COUR DE CASSATION), P.7 FF III. 1 The appellant (Mrs Rajaratnam) asserts that the instance below has violated substantive law and that therefore the conditions for the ground for nullity in S 281, Section 3 of the Code of Civil Procedure of the Kanton of Zurich have been met. The requirements of the ground for nullity in 281, Section 3 are fulfilled only if the reasoning of the instance below is under no circumstances legally justifiable; the Supreme Court of Appeals may, however, not examine whether it considers the decision as correct and would have decided in the same way. (Cf. von Rechenberg, Nichtigkeitsbeschwerde, 2nd ed. Zurich 1986, p. 28.) 2 The prior objective of the here-applicable Convention on the Civil Aspects of International Child Abduction is to guarantee that in the case where a child has been wrongfully removed or retained (Article 3) the custodial situation as it existed before the abduction is restored as quickly as possible. Therefore, when deciding that a child that has been abducted should be returned as quickly as possible, it is not the decision on the merits of a possible custody dispute that is at stake (cf. Article 1, Article 16 and Article 19 of the Convention; cf. furthermore Chr. Bohmer, "Die 14. Haager Konferenz uber internationales Privatrecht" 1980, in Rabels Zeitschrift 46 [1982], p. 646 and 651; B. Deschenaux, "Internationale Kindesentfuhrungen und Mittel ihnen zu begegnen", in: Zeitschrift fur Vormunschaftswesen 40 [1985], p.44.) Questions as to the merits are left to be decided by the courts of the State of the former habitual residence of the child (A.E. Anton, "The Hague Convention of International Child Abduction", in: The International and Comparative Law Quarterly, London 1981, Vol. 30, p. 553.) 3 Article 12 of the Convention stipulates that the authority concerned must, as a matter of principle, order the immediate return of any child that has been wrongfully removed or retained. In this context, Mrs Rajaratnam urges that both instances below have violated clear law by assuming the wrongfulness of the removal in the meaning of Article 12 of the Convention without truly deciding on questions of substantive law. In support of this assertion, Mrs Rajaratnam quoted a publication of the Federal Ministry of Justice: "Analysis of the answers received on the questionnaire of 18 July 1983", according to which in cases where custody is exercised jointly, "a substantive decision on the wrongfulness" is necessary. According to Article 3 of the Convention the removal or the retention of a child is to be considered wrongful if it is in breach of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention and if at the time of removal or retention those rights were actually exercised either jointly or alone. Article 5 clarifies that for the purposes of the Convention "rights of custody" include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence. Since Article 3 determines unmistakably under which circumstances wrongfulness can be assumed under the Convention, the case at hand in which custody is exercised jointly - like any other case - merely requires the direct application of the respective provisions of the Convention. Therefore, no preliminary "substantive decision" on the wrongfulness of the removal is necessary. If a like decision were to be required, the meaning and purpose of the Convention would be counteracted, since the main objective of the Convention is to guarantee the speedy return of the child. Correspondingly, Article 3 of the Convention merely requires that custody is exercised effectively. It is not necessary that in the State in which the child was habitually resident [render] a decision on the right of custody has been made (cf. also B. Deschenaux, op. cit., p. 45). Both instances below have ascertained that the conditions for a return of the children as set forth in Article 3 of the Convention are fulfilled. Rightly they have concluded that Mrs Rajaratnam has violated the right of custody - as in of Article 5 of the Convention - of her husband by taking the children to Switzerland without his approval. This act is, as the instances below point out correctly, wrongful, because according to the relevant English legislation the right of custody belongs to both parties jointly and had been exercised by them jointly in the past. Since the instances below have not violated the law, the application is unfounded with regard to this point. 4 The next argument advanced by the appellant in order to prove the nullity of the decision of the Higher Court concerns Article 17 of the Convention. According to this provision the sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State is no ground for refusal to return a child under the Convention; the judicial or administrative authorities of the requested State may, however, take account of the reasons for that decision in applying the Convention. Mrs Rajaratnam is of the opinion that the instance below has violated clear substantive law when it says that the decision of the judge of the Family Division of the District Court of Horgen of 2 February 1988 is of no importance for its decision. She states that the instance below even refers to Article 17, but that it ignores the part of the sentence in which it is said that "the courts ... of the requested State ... may take account of the reasons for the decision in applying the Convention." Since a super-provisional measure with respect to custody is granted only if a prima facie case has been established, the judge of the instance below could have taken into account the reasons for the decision (Articles 17 and 13, paragraph 1, lit. b of the Convention). The appellant concludes that the instance below in its reasoning infringed upon the competence of the court of first instance to decide what would be beneficial to the child, and that this was inconsistent with its findings which affirmed such a competence. The argument advanced by the appellant concerning the discussion of Article 17 by the instance below is manifestly unfounded. In particular, she at first ignores the fact that according to this provision the courts of the requested State may take account of a decision that has been made relating to custody in the requested State, but that they do not have to follow its reasoning. Therefore, the super-provisional measure of the judge of the Family Division of the District Court of Horgen of 9 February 1988 in and by itself is no reason for a refusal to return the children. In the course of her argument, Mrs Rajaratnam correctly sees that the judge may only take into account the reasons which have led to the provisional measure relating to custody. Since she does not speak of an "obligation", she implicitly retracts her statement that the instance below has violated clear substantive law. It is not possible to see an intrusion into the competences of the court of first instance in the approach of the instance below. Article 17 of the Convention leaves it up to the court to decide whether it wants to take into account the matrimonial proceeding or not. Since the judge sitting alone in the summary proceedings before the District Court of Horgen had stated in his order of 11 March 1988 that Mrs Rajaratnam could not derive any arguments in her favour from the provisional order of the judge of the Family Division of the District Court of Horgen because the order had been provisional and had been issued without hearing the opposing party, the instance below cannot with regard to this question have been inconsistent with the findings of the first instance. Therefore, the complaint of Mrs Rajaratnam concerning this question is unfounded too. 5 Article 13, paragraph 2, according to which the judicial or administrative authority may refuse "to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views," must, in the opinion of the Higher Court, also be interpreted in the light of the purpose of the Convention; this must be done although Article 13, paragraph 2, contains an exception to the rule of Article 12, according to which as a matter of principle the return of the child must be ordered. Following this reasoning and considering the opinion of Bohmer (op. cit. p. 649), who, in cases of doubt, opts for the return of the children, the instance below concludes that compelling reasons must be produced against the return of the children. The appellant rejects this interpretation of Article 13, paragraph 2, of the Convention by saying that, since the wording of Article 13, paragraph 1, lit. b, "does not contain a precise definition, there is no room for requiring a compelling reason". "Since furthermore Article 13, paragraph 2, of the Convention leaves a margin of discretion, which the judge of first instance has used correctly, the interpretation made by the instance below (page 6 at the bottom) is a violation of the Convention because it negates the options in Article 13 from a legal point of view (and not their application on the case at hand)." Apparently Mrs Rajaratnam wants to point out that in default of a "precise definition" in Article 13, paragraph 1, lit. b, and in view of the margin of discretion left in Article 13, paragraph 2 the instance below with its interpretation as mentioned above has violated clear substantive law. To put it differently, the question arises as to whether the instance below has violated clear substantive law and thus fulfilled the ground for nullity of S 281, sentence 3 ZPO when it argued that in its opinion compelling reasons must be advanced against the return. Rightly, the Higher Court in interpreting the reasons for refusal in the meaning of Article 13, paragraphs 1 and 2 refers to the principle laid down in Article 12, according to which, if the period between wrongful removal and the commencement of the proceedings amounts to less than one year, the court has to order the immediate return of the child. As Bohmer points out this interpretation does not neglect the best interests of the child. The author correctly paraphrases the principle laid down in Article 12, paragraph 1 of the Convention as follows: "Article 12 is based on the conception that usually the return of the child within one year is not detrimental to the child because he or she is still used to his or her prior environment. In case the repeated change of environment does present difficulties to the child, these will in general be of lesser weight than the violation of the right of custody of the applicant" (Bohmer loc. cit. p. 649). This explains also why when applying the test of Article 12, paragraph 1, of the Convention there is no need for a closer examination of the situation of the child and of the question as to whether he or she has become accustomed to his or her new environment (cf. Bohmer, loc. cit. p. 649). In view of this principle which gives the former holder of the right of custody a right to the immediate return of the child against the abductor, a narrow interpretation of the reasons for refusal in the meaning of Article 13, paragraphs 1 and 2, is very well defensible. Since - as mentioned above - the Hague Convention intends to guarantee that the child is returned as quickly as possible, the decision on this question must not be equated with an examination of the right of custody. Therefore, the instance below is justified in saying that in case of doubt the return should be ordered and that in any case no investigation should be entered into. If the instance below goes on arguing that the report of the youth welfare office of Horgen would be relevant only to the extent that it showed compelling reasons for rejecting the return, this opinion is defensible. By arguing so, the instance below certainly does not violate clear substantive law. This is even less so since the provision applied by the instance below (Article 13, paragraph 2 of the Convention) leaves a margin of discretion. 6 a) The appellant further argues that contrary to the opinion of the instance below the statements of the children quoted in the report of the youth welfare office of Horgen, according to which their situation at home was chaotic and their father was unbalanced and lost control of himself and they had had to care for their mother and run the home, were decisive indeed. By deciding in spite of the above-mentioned statements that there was no risk of harm to the children, the instance below had decided contrary to the record and arbitrarily. Furthermore, the decision of the instance below is contrary to the record and arbitrary also because it does not mention "any objective circumstances" which would contradict the assertion that the children had to fear being placed in an intolerable situation. b) First of all it is necessary to explain the following: a conclusion is contrary to the record if it reproduces the content of the files incorrectly; it is arbitrary if the correctly reproduced content of the files has been evaluated in an evidently incorrect way (cf. von Rechenberg, Nichtigkeitsbeschwerde, 2nd ed. Zurich 1986, pp. 27 f). Taking these definitions into account, it becomes obvious that Mrs Rajaratnam's complaint that the decision of the instance below was contrary to the record is unfounded. It remains to be considered whether the assessment of the instance below was arbitrary. c) Under paragraph 4.2 of the challenged decision the instance below examines some "complementary considerations with regard to the best interest of the children". These considerations are made in connection with Article 13, paragraph 2, of the Convention when discussing the relevance of the desire of the children to remain in Switzerland. The deliberations of the instance below are not of a factual but of a legal nature as can be seen by the fact that the following conclusions are drawn from the statements of the children: The circumstances described by the children do not in and by themselves preclude their return and they do not fully explain the refusal of the children to return to England and therefore they may be set aside (or, in another passage: "all the reasons given do not prove the risk of potential harm to the children in case of their return"). Although it does not expressly refer to it, the instance below under its above mentioned title "complementary considerations with regard to the best interests of the children" takes into account Article 13, paragraph 1, lit. b of the Convention. It does, in any case, not violate clear substantive law when deciding that the circumstances described do not preclude a return of the children. Therefore, the complaint of Mrs Rajaratnam - which incorrectly has been made under the heading of a decision that is contrary to the record and arbitrary - is unfounded. Contrary to the opinion of the appellant this interpretation of the instance below is not inconsistent with the decision of the first instance. Since, as mentioned above, the evaluation of the instance below is defensible, the further complaint of Mrs Rajaratnam that the instance below sets requirements for the proof of a risk which "in a summary proceeding can - except in very rare exceptional circumstances - never be fulfilled", does not have to be discussed. Mrs Rajaratnam's assertion that her arguments and those of the first instance based on the report of the children are credible and "in accordance with Swiss conceptions with regard to the protection of children" is also not to be considered. It remains unclear in any case in what respect "the instance below has violated Swiss ordre public while the first instance in accordance with Mrs Rajaratnam has evaluated the situation correctly." 7 a) After a thorough examination of the wish of the children to remain in Switzerland, the instance below arrived at the conclusion that the circumstances justify disregarding the wish of the children in favour of objective facts and that therefore they should be returned. Mrs Rajaratnam considers these conclusions as being contrary to the record and a violation of clear law. She maintains that the reasoning of the instance below "that the statements of the children are not relevant in this context" gives evidence of a misinterpretation of the literature and disregards even the statement of Mrs Rajaratnam according to which the children are exceptionally intelligent. Furthermore, the appellant complains that the instance below argues abstractly and never substantiates why the children should be too young and immature. b) Obviously, the objections made by Mrs Rajaratnam under this title are not contrary to the record either. Therefore it merely remains to be examined whether the evaluation of the facts by the instance below is defensible or not. c) After a close study of the literature quoted by the instance below it becomes clear that a misinterpretation by the instance below is out of the question. In particular, the author quoted by the higher court with regard to Article 13, paragraph 2, of the Convention does not fail to express himself with the necessary clarity when he writes: "L'autorite requise devra, lorsque les circonssances le justifient, demander son avis a l'enfanc lui-meme et, si elle peut prendre en consideration cet avis, pourra refuser de le renvoyer lorsqu'il s'y oppose resolument" ("The requested authority must, if the circumstances so justify, ask the child for his or her opinion and can, if that opinion can be taken into consideration, refuse to return the child if he or she objects strongly." B. Deschenaux, "La Convention de La Haye sur les aspects civils de l'enlevement international d'enfants", in Schweizerisches Jahrbuch fur internationales Recht 37 [1981], p. 125). In consideration of the authors quoted the instance below correctly concluded that the wish of the child is not binding on the courts and that this is all the more the case if a child due to its age or for emotional reasons cannot form an unbiased judgment. This is also why Article 13, paragraph 2, of the Convention leaves the decision to the court's discretion whether it wants to comply with the child's wish ("... may refuse to order the return of the child ..."). Contrary to the opinion of Mrs Rajaratnam the instance below is right if it does not take into consideration the "exceptional intelligence" of the children. Instead, the instance below examines the emotional situation of the children and concludes in a defensible manner that the reasons advanced by the children exclusively concern the insufficiencies in housekeeping and the psychological problems due to the absence of their mother from the household and to her illness. It is also defensible to argue, as the instance below has done, that the circumstances mentioned above caused trouble both to the children and their father and that they explain plausibly most of the children's reproaches against their father. Furthermore, the instance below correctly takes into account the fact that at the time of the interview the children had not seen their father for more than 2 months and since that time been exclusively in contact with their mother and her relatives. The instance below correctly assumes that this factor is relevant to the desire of the children not to take up contact with their father. Considering this evaluation it becomes clear that for the decision of the instance below the evaluation of the circumstances mentioned and not the maturity of the children was decisive. Mrs Rajaratnam seems to misunderstand this fact if she asserts that the instance below is not able to explain "why exactly the children are supposed to be too young and immature". Besides, Mrs Rajaratnam seems to overlook that the instance below does not dispute her son's maturity. The fact that the instance below is very cautious when considering the letters of the children is justified in view of the formulations used in these letters. Thus, it can be said that the instance below has neither abused nor exceeded the discretion left in Article 13, paragraph 2 of the Convention. -------------------- 1. Available on Hilton House BBS as ANTON.ART