Court: Kopparberg County Administrative Court, Sweden Number: O 278-89 Applicant: Shamsi, Mohsin and Respondent: Heijkenskjold-Shamsie, Kristina Date: 10 Apr 1980 ================================================================= KOPPARBERG COUNTY JUDGMENT ADMINISTRATIVE COURT Date Case No. 10 April 1990 O 278-89 Division 1 MO/lm Pronounced in Falun _________________________________________________________________ APPLICANT Name, legal counsel, etc. Personal identity number (date of birth) Shamsi, Mohsin 370630- 6 Argyll Mansions Hammersmiths (sic Hammersmith) Road LONDON W14, UNITED KINGDOM Representative and counsel under the Legal Aid Act: Christina Bjelvert-Olsson LL.B Levanders advokatbyra Asgatan 12 791 71 FALUN _________________________________________________________________ OPPOSING Name, legal counsel, etc. Personal identity PARTY number (date of birth) Heijkenskjold-Shamsie, Kristina 440922-1902 Pl 5150, Stamshojden 791 96 FALUN Representative and counsel under the Legal Aid Act: Agneta Nyman LL.B Allmanna advokatbyran Asgatan 25 791 71 FALUN _________________________________________________________________ THE CASE The return of children under Section 11 of the Act on Recognition and Enforcement of Foreign Decisions relating to Custody etc. (1989:14) _________________________________________________________________ The case concerns the return of two children, 13 and 9 years old, from Sweden to the United Kingdom by virtue of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. This Convention has been incorporated into Swedish law through the Act on, inter alia, the Return of Children (1989:14). The facts in this case are briefly as follows. Kristina Heijkenskjold-Shamsie grew up in Falun where her parental home is situated. On 6 October 1966 she married Mohsin Shamsi and the couple took up residence in London. They have two children, Jenine Samina, born on 1 July 1976, and Siraj Martin, born on 26 December 1980. Mr and Mrs Shamsi are British citizens and Kristina is also a Swedish citizen. The children have dual citizenship, British and Swedish. Until August 1989 they were attending schools in London. As a result of marital discord, divorce was discussed. On 3 August 1989, Kristina Heijkenskjold-Shamsie traveled with the children to Sweden to visit relatives in Falun, including Kristina's mother. They intended to return to London on 3 September. On 4 September 1989, Mohsin Shamsi received a letter to the effect that Kristina wanted a divorce. She further informed him that she intended to stay in Sweden with the children. The children, who are bilingual, have continued their schooling in Sweden since the autumn of 1989. A request was communicated for the return of Samina and Siraj to their father in the United Kingdom to the Ministry for Foreign Affairs on 5 October 1989 by the Lord Chancellor's Department in the United Kingdom. An application was subsequently made to the County Administrative Court for the return of the children to Mohsin Shamsi. He has also demanded that the judgment of the County Administrative Court shall take immediate effect. In support of his claim, Shamsi has stated, amongst other things, the following. He is entitled to custody of the children under English law in accordance with the Guardianship of Minors Act 1973 Section I (1) compared with the Childrens Act 1975 part IV, Section 85 (3), and also statements from the Lord Chancellor's Department. Kristin Heijkenskjold-Shamsie is unlawfully retaining the children in Sweden. The children were resident in the United Kingdom immediately before they were retained in Sweden. Their Retention in Sweden is in breach of his legal right of custody of the children. This right was exercised at the time the children left for Sweden and would have continued to be exercised if they had not been retained in Sweden. Thus, the prerequisites exist for the return of his children under Section 11 of the Swedish Act concerning Recognition and Enforcement of Foreign Decisions relating to Custody etc. and concerning the Return of Children. Kristina Heijkenskjold-Shamsie has submitted the following facts which have largely been denied by her husband. The reason why Kristina took up residence in Falun was that she had been continually battered during her 23 years of marriage. When she left England she was on the verge of both physical and mental collapse. The family had financial problems since Mohsin was only very occasionally gainfully employed. The family had supported itself on the basis of Kristina's capital, which is now exhausted. Mohsin has not taken responsibility for the support of his family in any way. Nor has he shared the responsibility for securing the children's needs. The care and upbringing of the children has rested with Kristina alone throughout the marriage. She and the children have lived their lives and Mohsin has lived his. -Kristina HeiJkenskjold-Shamsie opposes approval of Mohsin Shamsi's application and requests that enforcement be refused on the following grounds. Mohsin did not, in fact, exercise his right of custody of the children or take care of the children including the period immediately preceding the children's departure for Sweden. Thus, Mohsin has not fulfilled the requirement in Section 11 paragraph two of the 1989:14 Swedish Act. For the children, the family situation has meant that they have stronger emotional ties to their mother who gave them security in the, at times, chaotic existence in their home. Both Samina, who is 13 years, and Siraj, who is nine years, object to returning to their father. In Section 12 of the 1989:14 Act, it is provided that a return may be refused if the child objects to the return and the child has attained a sufficient degree of maturity for its views to be taken into account. Samina has reached an age where she may not be returned against her will. Although Siraj cannot be regarded as having attained an age and sufficient degree of maturity for his views to be taken into account, there is a serious risk that returning him could harm his mental health and place him in an intolerable situation. Siraj's relationship to his mother and sister is very important for his basic security. The exceptions in Section 12 have been set out in the best interests of the child. The best interests of the child are strongly upheld in the Swedish legal system and the child's situation and other circumstances must also be decisive as regards returns in accordance with the 1989:14 Act. Mohsin Shamsi has protested against his wife's allegation that he did not share in the care of the children in the manner required in Section 11 of the Act. He has also stated the following. The relationship between husband and wife is irrelevant in this context, since the legal question concerns the return of the children and whether or not unlawful retention of the children has taken place. The aim of the Hague Convention is that children shall return to their habitual environment. He also denies that Samina does not wish to return to the United Kingdom. In his view, Samina is prevented from expressing her true wishes by her mother. As regards Siraj, he is only 9 years old and has therefore not reached the applicable age under Chapter 21 Section S of the Swedish Code on Parents and Children. Shamsi also denies the claim that a return would harm Siraj's mental health and place him in an intolerable situation. Siraj has grown up in the United Kingdom and gone to school in London. He will return to a familiar environment. The Shamsi couple have a large apartment in central London and Shamsi has made inquiries about the possibility of obtaining, after services of a young Swedish woman to help him look after the children. If Kristina considers that handing the children over to him entails risks, she should accompany them to London so that they can arrange a divorce there. The County Administrative Court held an oral hearing. At Kristina Heijkenskjold-Shamsie's request, Charlotte Sundbom was questioned at the hearing to give testimony about the children's relationship with their mother. There has been extensive correspondence in the case. OPINION OF THE COURT Kristina Heijkenskjold-Shamsie indisputably traveled to Sweden with her children on 3 August 1989 and did not return to the United Kingdom as agreed. She informed her husband that she intends to stay in Sweden with the children. Since their departure from London, the children have been in Falun and have been attending school in Falun since the commencement of the 1989 autumn term. The Shamsi children have previously lived in London throughout their childhood. Under British law, both parents have equal rights to custody of children, without restrictions. The County Administrative Court finds on the one hand that the United Kingdom is to be regarded as the children's country of residence prior to the Shamsi children's departure for Sweden, on the other that through the retention of the children in Falun the appellant has been deprived of his right of custody of his children. As regards the question of whether or not the appellant actually exercised his right of custody of the children at the time the children left for Sweden, the County Administrative Court judges as follows. According to the preparatory legislative documents for the 1989:14 Act (Bill 1988/89:8 p 41) there is a presumption that the person who has custody of a child has also exercised his/her right of custody of that child. Stronger proof of neglect of custody is therefore required than a mere statement by the other parent. On the basis of what has emerged at the oral hearing, the County Administrative Court points out that, on account of a cultural collision, the Shamsi couple have completely different views on children and the needs of children and on the role of men and women in families. Consequently, in the view of the County Administrative Court, what Kristina Heijkenskjold-Shamsie has said about her husband's manner of taking his responsibility for the children is not sufficiently conclusive as grounds for refusing the return of the children as requested. In view of what has been stated above, the County Administrative Court finds that retention of the Shamsi children in Sweden contravenes the appellant's right of custody of his children and that it is unlawful under the Hague Convention. However, the Court can refuse the return of a child if it may be considered established that the child objects to returning and has reached such an age and degree of maturity that its views should be taken into account. (1989:14 Act, Section 13 p 3). It must be considered clear from the Act's preparatory legislative documents that the provisions in Chapter 21 Section 5 of the Code on Parents and Children also apply to cases involving the return of children under the 1989:14 Act. As regards a child's degree of maturity, this Section directs that enforcement may not take place against the wishes of the child if the child has attained the age of 12. Samina is nearly 14 years old. In order to obtain her view in an objective manner (Section 16), the County Administrative Court applied to the Falun Hospital Department of Child Psychiatry where the Shamsi children have separately met and talked to a child psychologist. The child psychologists selected have many years' experience, particularly of children over 7 years of age. Arrangements were made to ensure that the children were not able to communicate with each other during these interviews. The County Administrative Court has no reason to doubt that what Samina and Siraj said to the Psychologists was the children's true reflections regarding the conflict between their parents. Samina has clearly expressed a desire to stay in Sweden with her mother. The only tenable judgment in the view of the County Administrative Court is that she refuses to agree to a return. This judgment is furthermore supported by Lotta Sundbom's testimony. The County Administrative Court therefore finds that there are impediments for the return of Samina by virtue of the provision in Chapter 21 Section 5 of the Code on Parents and Children. Siraj has also stated that he would prefer to live with his mother. However, he has not reached such an age that his views are to be taken into account. In case Siraj's views cannot be taken into account, Kristina Heijkenskjold-Shamsie has referred to Section 12 sub-section 2 in the 1989:14 Act, which provides that a return may be refused if there is a serious risk that the return of the child would cause it physical or mental harm or otherwise place the child in an intolerable situation. At first glance, it may seem that sub-section 2 in Section 12 has a limited scope and the intentions of the Hague Convention speak in favour of a restrictive interpretation. The statements in the Act's preparatory documents complicate the matter however. The Minister states in the preparatory material (bill 1988/89:8 p 14, 16 and 17) that a child shall not be returned if a return is not in the child's best interests. The Law Council has concurred in this assessment. After first establishing that the Hague Convention has no "ordre public" clause concerning the child's best interests, the Law Council states the following: "The provision in Section 12 sub- section 2 seems, however, to offer an opportunity to take into account whether enforcement would be manifestly incompatible with the best interests of the child in connection with a return, when judging whether the child would be placed in an intolerable situation." In the light of the above, the County Administrative Court must decide whether there is a risk that a return would harm Siraj's physical and mental health and, in addition, whether enforcement would be manifestly incompatible with Siraj's best interests. In itself, a return would not mean any obvious disadvantages for Siraj since he would be returning to the environment he grew up in - his home, friends and school. However, his former home environment lacks two persons who are very important to him, that is to say his mother and his sister. Siraj undoubtedly has strong emotional ties with both his mother and his sister. A probable consequence of a return would be that Siraj would lose some of his sense of security. The children's statement that their father has taken little part in caring for them must also be taken into account and that the responsibility for Siraj's emotional development would therefore be shifted on to the person who is given responsibility for the home in his mother's place. After weighing up all the factors of importance, which is required when applying the 1989:14 Act, the County Administrative Court finds that a return would be manifestly incompatible with the best interests of Siraj and therefore a return is denied in the case of Siraj too. ORDER OF THE COURT The County Administrative Court rejects the application for a return to the United Kingdom of the children Samina and Siraj. The County Administrative Court awards remuneration for the services of Christina Bjelvert-Olsson as counsel to Mohsin Shamsi under the Legal Aid Act in the amount of SEK 28,578, of which amount SEK 26,560 relates to her fee and SEK 2,018 to expenses. The County Administrative Court awards remuneration for the services of Agneta Nyman as counsel to Kristina HeiJkenskjold- Shamsie under the Legal Aid Act in the amount of SEK 20,625. The County Administrative Court determines that the legal aid charge for Mohsin Shamsi and Kristina Heijkenskjold-Shamsie shall be SEK 0. The County Administrative Court finds it reasonable not to impose on a party liability to pay charges to the Crown for the costs of the legal aid enjoyed by the opposite party. For details of how to appeal, see enclosure (Dv 3103). Marc Olsson I, the undersigned, do hereby certify that this is a true and correct translation of the document in Swedish presented to me. /s/ Beryl Vestermark Beryl Vestermark Certified Public Translator from Swedish into English by the Swedish Board of Trade. 19 April 1990 ----------------------------------------------------------------- END OF DECISION OF ADMINISTRATIVE COURT ================================================================= Court: SUNDSVALL ADMINISTRATIVE COURT OF APPEAL Number: 1731-1990 Applicant: Shamsi, Mohsin and Respondent: Heijkenskold-Shamsie, Kristina Date: 29 Jun 1990 ================================================================= SUNDSVALL JUDGMENT ADMINISTRATIVE COURT OF APPEAL 29 Jun 1990 Case No. Division 4 Pronounced 1731-1990 in Sundsvall APPELLANT Mohsin Shamsi 370630- 6 Argyll Mansions, Hammersmith Road, London W 14 80G, Storbritannien Representative and counsel under the Legal Aid Act: Christina Bjelvert-Olsson LL.B Levanders Advokatbyra, Asgatan 12, 791 71 Falun OPPOSING PARTY Kristina Heijkenskold-Shamsie 440922-1902 Pl 5150, Stamshojden, 791 96 Falun Representative and counsel under the Legal Aid Act: Agneta Nyman LL.B Allmanna Advokatbyran, Asgatan 25, 791 71 Falun APPEAL AGAINST DECISION OF Kopparberg County Administrative Court Date of decision Case no. 10 April 1990 O 278-89 See attachment A THE CASE The return of children under Section 11 of the Act on Recognition and Enforcement of Foreign Decisions relating to Custody etc. and concerning the Return of Children _________________________________________________________________ In the Administrative Court of Appeal, Mohsin Shamsi maintains his application for the return to him of his children Samina and Siraj. He bases his application on the claim that the preconditions for a return of the children under Section 11 of the Act on the Recognition and Enforcement of Foreign Decisions relating to Custody etc. and concerning the Return of Children (1989:14) are fulfilled and that there are no grounds for refusing a return pursuant to the provisions in Section 12 of this Act. Mohsin Shamsi also demands that the Administrative Court of Appeal should order that its judgment in the case shall take immediate effect. Kristina Heijkenskold-Shamsie opposes the sanctioning of Shamsi's application. In the first place, she states that Mohsin Shamsi has not exercised his right of custody of the children and that the applicable requirements which would make the retention of the children unlawful cannot be considered to be fulfilled. In the event that retention of the children should be considered unlawful, she claims that the children are opposed to returning and that there is a serious risk that a return would harm the children's health or place them in an intolerable situation. _________________________________________________________________ The Administrative Court of Appeal has held an oral hearing of the case when the parties largely gave the same information as to the County Administrative Court. As new evidence in the Administrative Court of Appeal, Mohsin Shamsi referred to a certificate from Ms Tina Birchwood, graduate from a School of Social Studies, in order to prove that he is well able to take care of his children in the event of a return to London. To prove that he has exercised his right of custody and also that he is well able to take care of the children, Mohsin Shamsi further referred to certificates from Ms Caroline Walsh, a neighbour of the Shamsi family's in London, Mr J Mirza, a friend of Moshin Shamsi's, and Mr H J Goodwin, a friend of the Shamsi family's. As new written evidence, Kristina Heijkenskold-Shamsie referred to certificates from Ms Elisabeth Nygren, school welfare officer, and Ms Birgitta Lindgren Berg, educational psychologist, to prove that the children are opposed to returning. She further referred to certificates from Mr and Mrs Tziras and from Ms Lydia Schmitt, acquaintances of the Shamsi family's in London, to prove that Mohsin Shamsi has not participated in the care and upbringing of the children. FINDINGS OF THE COURT In the parts which are relevant to this case, the Act concerning Recognition and Enforcement of Foreign Decisions relating to Custody etc. and concerning the Return of Children (1989:14) is an incorporation into Swedish law of central parts of the Convention on International Access to Justice signed in The Hague on 25 October 1980. The basic provision is given in Section 11 of the Act, that a child who is the subject of unlawful removal to or retention in this country, on application shall be returned to the person from whom the child was unlawfully removed. It is further specified that removal or retention of a child is unlawful if it takes place in breach of the right of custody of the person in whose care the child was in the state where the child was habitually resident immediately before the removal or retention, provided this right was exercised at the time the child was removed or retained, or would have been exercised but for the removal or retention of the child. In compliance with the provisions of the Hague Convention, it has been specified in Section 12 of the above-mentioned Act that the return of a child in accordance with Section 11 may be refused under certain circumstances. In the respects relevant to this case, it consequently applies under Section 12 sub-section 3 that the return of the child may be refused if the child itself objects to being returned, in cases where it has attained such age and degree of maturity that its views should be taken into account. Furthermore, Section 12 sub-section 2 provides that the return of a child may be refused if there is a serious risk that it would cause the child physical or mental harm or otherwise place the child in an intolerable situation. The Administrative Court of Appeal makes the following judgment in the case. The examination shows that Kristina Heijkenskold-Shamsie left London with her children Samina and Siraj on 3 August 1989 and traveled to Sweden, and that she did not subsequently return but retained the children in Sweden. The retention of the children means that they have been separated from their father, Mohsin Shamsi, and from their country of residence up to that date, the United Kingdom. The examination does not indicate other than that Mohsin Shamsi and Kristina Heijkenskold-Shamsie lived together in London with their children during the children's childhood years and also that they had joint custody of them. Nor does the examination prove other than that Mohsin Shamsi participated in -the care of the children and their upbringing. Kristina Heijkenskold-Shamsie's retention of the children in Sweden must consequently be considered to contravene Mohsin Shamsi's right to take care of them. Like the County Administrative Court, the Administrative Court of Appeal finds that the retention of the children is to be considered unlawful and that, consequently, the preconditions do in fact exist for a return of them to Mohsin Shamsi under Section 11 of the Act. In judging whether, despite the existence of preconditions for a return of the children under Section 11 of the Act, there are nevertheless grounds for refusing the return pursuant to Section 12 sub-section 3, the Administrative Court of Appeal finds that the following should be taken into account. The provision in the above-mentioned sub-section means, as does the corresponding provision in the Hague Convention, that in cases where a child is to be returned, scope has been created for paying regard to the child's own attitude to a return. According to the provision, it is crucial here that the child has attained such an age and degree of maturity that its views should be taken into account. In the Act's legislative material, with reference to Section 12 sub-section 3 the Minister of Justice stated that the provision in it corresponds in substance to the provisions of Chapter 21 Section 5 of the Code relating to Parents, Guardians and Children (cf bill 1988/89:8 p 43). This must be considered to mean that - in the same way as under Chapter 21 Section 5 of the Code relating to Parents, Guardians and Children regarding ' enforcement of decisions relating to custody and access - the aim of the provision is to give expression to the fact that a child who has reached the age of 12 has normally attained such a degree of maturity that its wishes should be taken into account and that, as regards a child who has not reached this age, a special assessment should be made regarding whether and to what extent importance should be attached to its express wishes bearing in mind the child's development and degree of maturity. As regards the couple's daughter Samina, the fact is that she will reach the age of 14 on 1 July 1990. Judging from what has been before the court, there is no reason to abandon the assessment of the County Administrative Court that her clearly expressed wish is to be allowed to stay with her mother in Sweden, and that she is thus opposed to a return to her father. The examination does not indicate anything other than that she has reached a degree of maturity which well matches her age and that importance must be attached to her wishes. In view of this, the Administrative Court of Appeal considers there are grounds for refusing a return in the case of Samina. Mohsin Shamsi's application for the return to him of Samina shall therefore be rejected. The couple's son, Siraj, is nine years old. What has been before the court concerning Siraj does not in itself indicate other than that he is well developed for his age. It has emerged in the examination that he has also expressed a wish to remain in Sweden with his mother and sister. However, chiefly bearing in mind how young Siraj is, the Administrative Court of Appeal considers that such importance cannot be attached to his attitude as would constitute an impediment to the return of him to his father. Consequently, it must be assessed to what extent such circumstances exist as mean that the return of Siraj would involve a serious risk to his health or otherwise place him in an intolerable situation and therefore, under the provision in Section 12 sub-section 2 of the Act, should lead to a refusal to return him. In this respect the Administrative Court of Appeal considers regard should be paid to the following. The provisions in the Act in question and the Hague Convention on which it is based, express the principle that children who have been unlawfully abducted or retained shall be returned to the country where the child was resident at the time when the abduction or retention took place (cf bill p 16). The aim is that, after a return to the original situation, a dispute in the case concerning custody of the child shall be settled in the country of residence. Thus, when assessing whether a return should be refused under the provision in Section 12 sub-section 2 of the Act, it is not in the first instance what is best for the child in respect of custody that should be taken into consideration. The question is rather to what extent a return of an abducted or retained child in order to restore the circumstances which existed before abduction or retention would place the child in an intolerable situation and thus be manifestly contrary to the best interests of the child (cf bill p 54). Kristina Heijkenskold-Shamsie asserts that Siraj has very strong bonds with his mother and sister. A return of Siraj would mean that he loses the important basic security which closeness to and contact with his mother and sister mean. Separation of a child from its siblings and mother normally involves mental strain for the child. The investigation into the case does not support the assumption that Siraj is more mentally unstable or sensitive than are children in general. In the view of the Administrative Court of Appeal, just the fact that a return of Siraj can involve his being separated from his mother and sister cannot mean that there is a risk that his mental health will be harmed. According to what the investigation into the case shows, the children's mother mainly cared for the children's daily needs when the family lived in London. However, there is no reason to assume that if Siraj should be returned, Mohsin Shamsi could not on his own take responsibility for ensuring that Siraj gets the necessary care and supervision. Furthermore, it has not emerged in the case that the relationship between Mohsin Shamsi and Siraj has been bad or that Mohsin Shamsi is obviously unfit to take care of his son. Consequently, a return of SiraJ to his old home environment cannot be considered to involve such a serious danger to his health or be otherwise contrary to his best interests that an application for his return should be refused. The Administrative Court of Appeal thus considers that Mohsin Shamsi's application for the return to him to his son Siraj shall be approved. Mohsin Shamsi has declared that, in the event his claim for a return of the children should be sustained, he is prepared to collect them in Sweden. In view of this, the Administrative Court of Appeal considers that, unless the parties agree on another procedure, it should be possible for Siraj to be returned to Mohsin Shamsi at Kristina Heijkenskold's home in Falun. He should be handed over no later than at a specific time appointed for his return. Under Chapter 23 Section 3 of the Code relating to Parents, Guardians and Children, Kristina Heijkenskold-Shamsie should be issued with an injunction to hand over Siraj on penalty of a fine. What has been determined with regard to handing over Siraj should be observed even though the judgment of the Administrative Court of Appeal has not entered into force. JUDGMENT The Administrative Court of Appeal affirms the Judgment of the County Administrative Court in so far as it means a rejection of Mohsin Shamsi's application for the return of his daughter Samina. Reversing the judgment of the County Administrative Court and approving Mohsin Shamsi's application, the Administrative Court of Appeal orders that the son, Siraj, shall be returned to Mohsin Shamsi. The Administrative Court of Appeal orders Kristina Heijkenskold- Shamsie on penalty of a fine of SEK 5000 - unless another time and place has been agreed between the parties - to return Siraj to Mohsin Shamsi on 27 July 1990 at 12 noon at her home in Falun. What the Administrative Court of Appeal has ordered in respect of the handing over of Siraj to Mohsin Shamsi shall be observed immediately. The Administrative Court of Appeal rules that remuneration be payable to Christina Bjelvert-Olsson for her services as Mohsin Shamsi's counsel in the Administrative Court of Appeal under the Legal Aid Act in the amount claimed of SEK 24,879, of which amount SEK 20,156 relates to her fee and SEK 4,723 to expenses, and to Agneta Nyman for her services as Kristina Heijkenskold-Shamsie's counsel in the amount claimed of SEK 13,125 for her fee. The Administrative Court of Appeal rules that the legal aid contribution payable by each of the parties shall be SEK 0. The Administrative Court of Appeal finds that there are no grounds for imposing on either party liability to pay the costs of the legal aid which the opposing party has enjoyed. For details of how to appeal (form 5), see attachment B. Bjorn Orrhede Sune Heidling Risto Stoorhook court referee Ulla Lundstrom and Bernt Persson, lay assessors, also participated in the decision. I, the undersigned, do hereby certify that this is a true and correct translation of the document in Swedish presented to me. /s/ Beryl Vestermark Beryl Vestermark Certified Public Translator from Swedish into English by the Swedish Board of Trade 13 July 1990