REPUBLIC OF FRANCE IN THE NAME OF THE PEOPLE OF FRANCE COLMAR DISTRICT COURT SECOND CIVIL DIVISION 12 Mar 1993 JUDGMENT Respondent: Mrs. Shamee, Francoise born in Mennechet, resding at 7 rue Principale, 67390, Mackenheim. Represented by her attorney, Mr. Cahn and associates, Attorneys at Colmar. Intimate and Plaintiff: THE DISTRICT ATTORNEY IN THE STRASBOURG DISTRICT COURT Intimate, and voluntary intervening party: Mr. Bishara Shamee, residing at 771 Woodbridge Drive, Bloomington Indiana. Represented by Attorney Wetzel, attorney at Colmar. Litigating Attorney Basle, attorney in Paris. COMPOSITION OF THE COURT at the time of the debates and deliberations: Madame Jardel-Lescure, President of the division, Monsieur Hoffbeck, advisor, Monsieur Meyer, advisor, DIVISIONARY CLERK OF THE COURT: Mr. Deparis DEPARTMENT OF THE PUBLIC PROSECUTOR: To which this file was delivered: Mr. Lorentz, General Attorney. DEBATES HELD IN PRIVATE AUDIENCE on 10 Feb 1993. JUDGMENT GIVEN AFTER FULL ARGUMENT ON BOTH SJDES of the l2th of March, 1993 delivered publicly by Mrs. Jardel-Lescure, President of the division, OBJECT: WRONGFUL REMOVAL OF THE CHILD Considering that after having observed the wrongful removal of the child Fareed Shamee to France, the court, referring to Art. 13(b) [WMH FN-1] of the Hague Convention [WMH FN-2] on the terms of which the judicial authority of the State required could not order the return of the wrongfully removed child when the person who opposes his return establishes that there exists a grave risk that the return of the child exposes him to a physical or psychological danger or in other words should place him in an intolerable situation, has ordered a mental examination [WMH FN-3] of the child Fareed Shamee so as to determine if his return to the USA will expose him to a psychic danger; Considering that the doctor GARDONE, to whom the task was given, deposited her report dated on the 22nd of Septamber, 1992, that after having gotten acquainted with the judicial file, had consulted both parties, Bishara Shamee who came from the U.S.A, for this meeting, and having proceeded to conversations about the behavior of the child Fareed whose age does not permit a thorough exchange with the expert, she concluded in these terms; "The return of Fareed Shamee to his father residing in the U.S.A. exposes him to a psychological danger not because of bringing him closer to his father, but due to the fact that, due to his young age, the separation with his mother, with whom he has lived alone for over one half of his life, would be for him the equivalent of bereavement". Conclusions of the parties after the expert evaluation: Francoise Mennechet defendant The defendant formulates various critiques with regards to the expert evaiuation and of the unsafisfsctory conditions, according to her, in which [the evaluation] was made. She agrees that the expert could not have truly approached the child who had a difficult time remaining passive during the consultation between the psychiatrist and the mother. She maintains her previous conclusions notably in that they reject the conclusions of the Department of the Public Prosecutor that requests, based on the HAGUE's Convention, the immediate retturn of the child to the U.S.A. Bishara Shamee, voluntary intervening party: The father of the child points to Article 3 [WMH FIN-4] of the HAGUE's Convention which, according to him, has been plainly violatgd. He maintains that the recognition of the rights of the child with respect to international law must be respected and that it is indispensable that the child maintains links with both of his parents. Referring to several preceding cases consisting of similar cases of wrongful removal of children, he maintains that the grave risk defined by Article 13(b) of The Convention was not established [in this case]. He stresses that the behavior of the child during the expert evalustion demonstrates sufficiently the capricious attitude of the mother who does everything to detach him from his milieu of origin. Consequently he estimates that it is necessary to bring an end as soon as possible to this situation particularly detrimental to the child. Consequently he concludes to confum the present judgment and asks the court to effect the immediate return of the child to the U.S.A. Director of Public Prosecution, plaintiff and intimate: Tbe Deparment of the Public Prosecutor also supports the confirmation of tho present judgment. He emphasizes that according to the terms of the report of the 14th session of the Hague Conference on Priavte International Law, the exceptions to the return of the wrongfully removed children must be interpreted in a restrictive manner if one wants to avoid that the Convention becomes empty words [i.e. ineffective]. [WMH FN-5] He makes reference to the Court of Appeals of Paris who considered, in a similar situation to the one of the child Shamee, that the risk of peychological troubles of the children linked to a new change in their living conditions did not characterize the state of danger nor the intolerable situation defined by Article 13(b) of The Convention. DISCUSSION Considering that the expert evaluation, with regards to which the defendant formulates completely unjustified criticisms, results in conclusions free of ambiguity, that after having met with each of the parents of Fareed in a thorough manner, the expert then proceeded to several very precise observations about the attitude of the child in the presence of his mother and then on his reactions when the mother was preparing to leave the room and made the aforementioned conclusions, that he stated that the complete separation between Fareed and his father should not continue without risks for the child of psychologiral disturbances linked to a fusional relation with his mother. Considering that it is concluded that this set of considerations that the danger of a separation with the mother is, considering the young age of the child and the circumstances that brought him to live alone with her for more than a year, clearly characterized, that this condition experienced like bereavement would be intolerable for the child; Considering that the case in point which was ruled on by the Cottrt of Appeals of Paris in the judgement of March 30th, 1990 is sensibly different in the fact that it concerns two brothers older than the young Fareed and that one only mentioned "a new change in their living conditions"; Considering that it is so established that if the actual situation could not persist without damage to tclhe child and if, through the divorce procedure that opposes the parents, solutions were to be found to re-establish the father-son relationship to the best interest of Fareed, his immediate return to the U.S.A. would be ordered without the reason of psychic danger whicb would affect him, that the conditions intended by Article 13(b) of The Convention being established, it is appropriate to annul the present judgement by rejecting their conclusions Mr. the Director of the Public Prosecution and Bishara Shamee; On These Grounds According to the HAGUE's Convention and its 3 and 13(b) Articles: Nullifies the present judgement ordering the immediate return of the child Fareed Shamee to his permanent residence in BLOOMINGTON in the State of Indiana, U.S.A. Ruling again in its own right, says and judges that there are no grounds to order the return of the Child Fareed Shamee wrongfully removed due to the serious Psychological danger that such a return would entail, Consequently opposes the Department of the Public Prosecutor, plaintiff and Bishara Shamee, Voluntary Intervening Party, in their conclusions. [WMH FN-6] Footnotes by William M. Hilton, 09 Jun 1993 -------------------- 1. there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. 2. The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention] 3. Art 13(d): "In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence." 4. The removal or the retention of a child is to be considered wrongful where--(a) it is in breach of rights 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 (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. 5. 34. To conclude our consideration of the problems with which this paragraph deals, it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. 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. Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. Ill, 1980, p. 426. 6. The decison of this court is contra to the vast majority of decisons on this issue and in particular the concept that the abducting parent can, but keeping the child away from its "Habitual Residence" for a long enough period, succesfully abduct the child. The English cases have ruled on this point stating that a party cannot raise an Art. 13(b) defense which they created. See C v C (Abduction; Rights of Custody); Court of Appeal (Civil Division); Hearing Date: 14 Dec 1988; [1989] 2 All ER 465; [1989] 1 FLR 403; [1989] 1 WLR 654. This decision is, in effect, a ruling on the merits of the custody case which is not permitted under The Convention.