Wright v Gueriel [1993] [France] Tribunal de Grand Instance Abbeville (Somme) No 506/931 ===================================================================== TRIBUNAL DE GRAND INSTANCE ABBEVILLE (Somme) JUDGMENT OF OCTOBER 6, 1993 No 506/93 PLAINTIFF: Mr Robert WRIGHT, born 19 January, 1959 in the BRONX, NEW YORK, unemployed, US citizenship, living at 3285 Avenue, Bronx, New York 10465, USA. Represented by the firm of VAN MARIS, DUPONCHELLE and HUCLEUX, barristers of Abbeville. Assisted by Mr CORNEC, "Advocat Plaidant" Solicitor, Paris DEFENDANT: Mrs Sabine Madeleine Fernande GUERIEL, wife of Mr Wright, born September 4, 1964 at ALLENAY (Somme), living at 102 rue Torniere Represented by the firm of FIRMIN, barristers and solicitors of Abbeville. MEMBERS OF THE TRIBUNAL During the hearing President : Mr VELY 1st Judge : Mr LEMESLE Judge : Miss HAUDIN Clerk of the Court : Miss BULTEZ MINISTERE PUBLIC to whom the case had been communicated, represented by Mr GREVIN, substituting for the Procureur de la Republique HEARING: Public hearing 22 September, 1993, after which the tribunal retired to consider the case, in accordance with the law. JUDGMENT "Contradictoire" contested, at first instance, announced publicly October 6, 1993 by the first Judge, Mr LEMESLE. Signed by Judge LEMESLE for the President, and by Miss CROGUENNEC, Clerk of Court. Procedure: The recital of the facts, the procedure and the parties claims has been set out in the judgment given on August 26 by the present Tribunal to which reference should be made. Since that last decision, the following events have taken place: - The Family Court Judge of the Tribunal de Grande Instance at Abbeville was persuaded to order a delay to be in force from 23 September, 1993 until the Tribunal announces its decision in the present case, on the basis of Article 16 of the Hague Convention. - Mrs GUERIEL has made a deposition recalling her previous argument and commenting on the testimonies lodged by her, in which she sought to show the abnormal character of Mr WRIGHT, which put in danger her life and the lives of her children. Concluding that the convention should not apply and that Mr WRIGHT's claim should be non-suited, she requests that he be required to pay compensation of 10,000 FF, based on Article 700 of the new Code of Civil Procedures. - Mr WRIGHT in turn canvassed the evidence in his favour and concluded with an opposing claim. He asks the Tribunal to disallow from the hearing, on the grounds of lateness, the grounds and evidence of his adversary. He stresses that the depositions of articles 14 and 15 of the Civil Code have no bearing on the case, since the Tribunal does not decide the custody of the children in the context of the litigation under consideration, which concerns exclusively the application of the Hague Convention. He maintains that he has acted in a timely manner in this regard. He disputes the probative value of the testimonies of the defendant, which concern only the relationship between the couple, and do not allow consideration as to whether there might exist any danger in the return of the children to New York; He seeks an order for the return of the children be ordered with provisional execution ("execution provisoire") and asks that Mrs GUERIEL be required to pay compensation of 10,000 FF in accordance with articles 700 of the new Code of Civil Procedures and 26 of the Hague Convention; At the hearing, the Public Minister shared his observations according to which the jurisdiction of this Tribunal is not contestable; that the Hague Convention is a "couperet "(literally "chopper") convention prohibits the Tribunal any power of investigation, that the Convention clearly applies in this particular case, the Tribunal having only to assess the evidence of the defendant pursuant to article 13(b) of the Convention, while at the same time he observed to the Tribunal that if Mr WRIGHT's violence against his children had been real, Mrs Gueriel would not have failed to involve the American judicial authorities and the police, which she did not do; DISCUSSION: About the question of communication of the grounds and evidence ("pieces et movens"): Whereas according to article 15 of the New Code of Civil Procedure: "The parties obliged to let each other know in good time the arguments and evidence on which they are basing their claims, the elements of proof that they are producing and the elements of law which they are invoking, so that each can organize his defense"; that article 132 al. 1 of the New Code of Civil Procedure specifies that the party which presents evidence is obliged to communicate it to every other party in the case; Whereas the judgment of 26 August 1993 given by the present Tribunal, having referred the matter back for hearing on the 22 September 1993, specified that in the intervening period the parties could exchange their grounds and documents; that no closure order ("ordonnance de cloture") had been established in view of the brief period of time between the two hearings; that the final conclusions submitted by the defendant contained no new grounds beyond those developed during the hearing on August 12, 1993; that, in reply, Mrs Gueriel produced for the first time certain evidence in support of her claims; that it appears throughout that Mr WRIGHT was able to make the final submissions, as much to contest the defendant's grounds as to contest the credibility of the evidence. Whereas, the consequence of the contradiction principle ("le principle de la contradiction") has been respected and applied; that there are grounds to oppose the exclusion of late material. On the Application of the Hague Convention Whereas the plaintiff claims that according to the laws of the State of New York, custody of the children is exercised in common by the parents; that it is otherwise established that Mrs GUERIEL left to settle in France without the consent of her husband; that by so doing, Mrs GUERIEL instigated an illegal abduction of the children in the sense of article 3 of the Hague Convention; Whereas, further, article 16 of the Hague Convention states that, after having been informed of the illegal abduction of a child or his non-return pursuant to article 3 the judicial or administrative authorities of the contracting country where the child was taken or detained cannot make a custody decision until it has been established that the conditions of the present convention for the return of the child are not met, or until a reasonable period of time has passed without there having been a request for the application of the convention; Whereas, as a result, the local Family Court Judge, although called upon by Mrs GUERIEN before the action undertaken by Mr WRIGHT in the present Tribunal, no longer has the authority to decide on provisional measures, including notably the determination of the address of habitual residence of the children, in the context of a non-conciliation order ("ordonnance de non-conciliation"), until the Tribunal has decided on the merits of the action to apply the Convention; and whereas the Family Court Judge has also given a delaying order ("ordonnance de sursis") to be decided in this matter; Whereas, since the the action of Mr WRIGHT has, to some extent, priority over the request for divorce for fault initiated by Mrs GUERIEN, the claim of the latter will be dismissed which aimed to establish the Family Court Judge of this Tribunal was solely competent to decide on the place of habitual residence of the children; Whereas, according to article 12 of the Convention, when a child has been abducted or detained illegally in the sense of article 3, and less than a year has passed since the abduction or the non-return at the time of the introduction of the filing of the application with the judicial authorities (or the administrative authority) of the contracting state where the child is, the requested authority orders his immediate return; Whereas in this case the adduction of the children took place January 22, 1993; whereas Mr WRIGHT notified Mrs Gueriel by bailiff on August 6, 1993; whereas it is ascertained that although the procedures instigated by Mr WRIGHT were slow, they were, nonetheless, within the aforementioned one year delay, whereas his action, therefore, should not be considered tardy in the terms of the convention; Whereas, in consequence, the application of the Hague convention is appropriate in this case; Concerning the Return of the Children Whereas article 13(b) of the Convention states that, the provisions of article 12 notwithstanding, the judicial authority or the administration of the state petitioned is not obliged to order the return of the child when the person opposed to that return establishes that there exists a grave risk that the return of the child would expose him to physical or psychological danger or in any other way place him in an intolerable situation; Whereas, among the evidence produced by Mrs Gueriel in support of her claims, there stands out the testimony of Mr Danny MULHERN, an American citizen, an officer of the US Postal Service, who was a work colleague of the defendant for 4 years and who commuted with her during this time; that Mr MULHERM attests that Mr WRIGHT suffered from severe depression, and being out of work for a year, he forced his wife to do the maximum number of hours of overtime to support the needs of the family; whereas according to the witness, Robert WRIGHT had on two occasions hit and pushed his wife; whereas he attests to having seen marks of blows and whereas he says that he accompanied Mrs GUERIEL to the police station to lay a complaint, for which the receipt was subsequently destroyed by Mr WRIGHT; whereas Mr MULHERN also mentions that Mrs GUERIEL had confided to him that she feared for her life if she asked for a divorce in the USA; Whereas, according to the evidence of Mrs Muriel LORMIER, a French citizen, English teacher, who lived from December 1988. to July 1989 at the home of the WRIGHT couple, Mr WRIGHT was a problematic (caracterial) person, aggressive and violent towards his wife who was thus very afraid of him; that he was extremely possessive about Mrs GUERIEL who was not permitted to go out except for the purpose of work; that Mr WRIGHT degraded the image of their mother in the eyes of the children and that the children were disturbed by the shouting and arguments; Whereas Mr Eric GUERIEL, brother of the defendant, attests that he twice went to the family home in New York to see his sister, that she was effectively imprisoned by her possessive husband; that he confirms having seen Mr WRIGHT be extremely physically and verbally violent towards his three children; that his sister "lived over there with fear in her stomach for herself and her three children"; and finally he indicates that he heard Mr WRIGHT threaten Mrs GUERIEL, when last winter she was staying for two weeks with her family in France, to destroy the three children if she did not return immediately, which she did immediately; Whereas, for his part, Mr WRIGHT produced a certain number of statements from neighbours, churchmen, the family doctor, describing Mr WRIGHT as an affectionate, attentive father who spent a great deal of time with his children; Whereas the tenor of the evidence produced by Mr WRIGHT concerning his attitude towards his sons was corroborated by a separate interview with the children, which he instigated on August 17, 1993; thus Eric and Robert notably each stated that their father was "gentil" (kind) with him, spent time with him and played with him, the youngest child Justin not being old enough to express himself during the meeting; Whereas, the evidence in favour of Mr WRIGHT is not "antinomique" (paradoxical) with the evidence produced by Mrs GUERIEL; whereas it appears from the latter evidence that Mr WRIGHT had, towards his wife, an exclusive and aggressive attitude, likely, at any time, to border on relevant symptoms of certain psychological or psychiatric illnesses, which could not, however, be determined, with a thorough knowledge of the cause, because the Tribunal cannot decide in what manner this might be investigated; whereas the evidence of Mr MULHERN and of Mrs LORMIER should be considered probative with respect to Mrs GUERIEL, being from a third party who had lived for a long period of time in close proximity to the couple. Whereas if these facts concern primarily the relationship between the couple, (relevant in a case of divorce), then the present Tribunal would not be able to decide (as the plaintiff requests) to what extent they should be disregarded in the present case; whereas, in effect, the pressure exerted by Mr WRIGHT on Mrs GUERIEL has a direct effect on the children; whereas Mrs LORMIER has indicated that the children were disturbed by the shouting and the arguments; whereas, above all, Eric GUERIEL has confirmed his sister's assertion that, during a telephone call, Mr WRIGHT had threatened to kill the children if his wife did not return immediately to the USA; whereas it thus appears that the children became hostages in the "death crisis" of the couple and this because of what Mr WRIGHT had done; whereas the very real feelings of affection and attention displayed by Mr WRIGHT towards his children would not of themselves, constitute a guarantee of the physical and psychological safety of the said children; whereas the threats of Mr WRIGHT regarding them should not be overlooked even although they occurred in the context of the domestic dispute; whereas, what cannot be overlooked is the risk, albeit statistically minimal, that the plaintiff, overwhelmed by a sudden and destructive suicidal impulse, would at any particular time, put his threats into effect; whereas, therefore, the physical danger contemplated by article 13(b) of the Convention has, therefore, been proved; whereas, equally and at the same time the psychological danger contemplated by the same text has been proved because it is not in the interest of the children to allow them, at physical risk, to serve as a tool of pressure. Whereas, consequently, it falls to decide in favour of the grounds raised by the defendant, and to deny Mr WRIGHT what he seeks, the return of the children to New York being for them both a physical and a psychological danger; Whereas, it would be inequitable to let Mrs GUERIEL bear expenses not covered by costs; it is ordered that Mr WRIGHT pay her compensation of 3,000 FF pursuant to article 700 of the New Code of Civil Procedure. FOR THESE REASONS: The exclusion of late evidence and grounds, as raised by the plaintiff, is rejected; Mr WRIGHT is fully entitled to invoke the Hague Convention; All of Mr WRIGHT's claims as to the application of article I3(b) of the said Convention are dismissed; Mr WRIGHT is ordered to pay compensation of 3,000 FF to Mrs GUERIEL pursuant to article 700 of the New Code of Civil Procedure. Mr WRIGHT is ordered to pay costs which will be recovered in accordance with article 699 of the New Code of Civil Procedure. /s/ Bultez /s/ Vely _________________________ ________________________ LE GREFFIER LE PRESIDENT -------------------- 1. Contributed by: Alain Cornec, Advocat, 11, Rue Lincoln, 750068 Paris, France