Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33250/96

by Mark A. LARSON

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 June 1996 by

Mark A. LARSON against Sweden and registered on 30 September 1996 under

file No. 33250/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a citizen of the United States of America, was

born in 1965. He resides at Orem, Utah.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

a. The particular circumstances of the case

On 27 October 1989 the applicant married S.Ö., a Swedish citizen

born in 1967. The marriage took place in Utah, where the couple

established their marital home. Their daughter, J, was born on

13 August 1990. Under Utah law the applicant and S.Ö. had joint custody

of J, who was - and still is - an American citizen.

The applicant, S.Ö. and J. spent the Christmas of 1990 in Sweden.

On this occasion, S.Ö. kidnapped J and subsequently retained her in

Sweden for approximately five months. On 3 June 1991, however, both

S.Ö. and J returned to Utah, where they were reunited with the

applicant.

While in Sweden, S.Ö. had filed a petition for divorce and sole

custody of J. In or about May 1991, the District Court (tingsrätten)

of Sandviken issued an interim order awarding S.Ö. temporary custody

of J. Before doing so the court had had communications with the

applicant, giving him an opportunity to submit observations. However,

relying on S.Ö.'s assurances that she would withdraw the petition, he

had refrained from doing so. When asked about the May 1991 order, S.Ö.

again assured the applicant that she had instructed her lawyer to have

the case struck out of the court's list of cases. Hence, the applicant

took no action in respect of the said order.

From 3 June 1991 to 13 January 1992, the applicant, S.Ö. and J

lived together in Utah. On the latter date, however, S.Ö. abducted J

from Utah to Sweden. At this stage, as during the previous retention

of J in Sweden, the applicant allegedly had no knowledge of the

remedies provided by the 1980 Hague Convention on the Civil Aspects of

International Child Abduction (hereinafter "the Hague Convention").

On 22 February 1992 the applicant was notified by the District

Court of Sandviken that S.Ö. had petitioned for a final decision in the

proceedings concerning divorce and custody. Thus, contrary to S.Ö.'s

assurances, those proceedings had never been discontinued. On or about

13 November 1992, following a preparatory hearing at which both parties

had been present, the court issued a partial judgment ordering the

dissolution of their marriage. Furthermore, the court ordered that the

interim order of May 1991 - awarding temporary custody to S.Ö. and

rights of access to the applicant amounting to four weeks per year -

continue in force. Apparently, no final hearing has been held on the

issues of custody and access.

Having come to believe that the Swedish court did not have

jurisdiction over the issues of custody and divorce, the applicant

instituted such proceedings in the Fourth District Court of Utah County

(hereinafter: "the Utah State Court"). That case is still pending.

In November 1993, the applicant and his new wife went to Sweden

to see J. On this occasion the applicant abducted J to Utah.

On 26 January 1994 S.Ö., represented by a Utah lawyer allegedly

hired on her behalf by the Swedish Ministry for Foreign Affairs,

instituted proceedings against the applicant in the United States

District Court for the District of Utah (hereinafter: "the United

States District Court"). Invoking the Hague Convention and requesting

that J be returned to Sweden, S.Ö. claimed inter alia that J was

habitually resident in Sweden and had been wrongfully removed to Utah

in breach of S.Ö.'s custody rights. On the same day, the court issued

a temporary ex parte order requiring that J be immediately handed over

to S.Ö. - who was now staying in Utah - pending a hearing scheduled for

1 February 1994. The order also expressly prohibited S.Ö. from removing

J from the State of Utah pending further orders of the court. Complying

with the court order, the applicant had J delivered to S.Ö. on

30 January 1994.

On 1 February 1994 S.Ö. fled to Sweden, taking J with her.

In March 1994 the United States District Court found S.Ö. in

contempt of court and issued a warrant for her arrest. By order of

15 August 1994 this court also requested S.Ö. to cause J to be returned

to Utah within thirty days. The order was not complied with.

On 27 January 1995, invoking the Hague Convention and the 1989

Act on the Recognition and Enforcement of Foreign Decisions Relating

to Custody etc. and Concerning the Return of Children (lagen om

erkännande och verkställighet av utländska vårdnadsavgöranden m.m. och

om överflyttning av barn, 1989:14 - "the 1989 Act"), the applicant

instituted proceedings before the County Administrative Court

(länsrätten) of the County of Gävleborg, requesting that J be returned

to Utah. As proceedings under that convention were still pending before

the United States District Court, however, he requested the Swedish

court to await the former court's final ruling. The County

Administrative Court granted this request.

By judgment of 12 June 1995, the United States District Court

rejected the claims brought by S.Ö. under the Hague Convention. The

court found inter alia that S.Ö.'s retention of J in Sweden in 1991 and

removal from Utah in January 1992 were wrongful and that - for the

purposes of the Hague Convention - J had been habitually resident in

Utah continuously since her birth. For this reason, so the court

stated, the applicant's removal of J from Sweden to Utah in November

1993 had not been wrongful within the meaning of the Hague Convention.

The court further ordered that J be immediately returned to Utah. The

judgment was not complied with.

The Hague Convention proceedings in Sweden, instituted by the

applicant in respect of S.Ö.'s 1994 abduction of J to that country,

were subsequently resumed. In these proceedings the applicant

consistently requested that the Swedish courts recognise and respect

the judgment of the United States District Court. Finding, however,

that the case did not concern the enforcement of a foreign judgment,

each of the Swedish courts decided on the case independently and on the

basis of Swedish law.

By judgment of 5 July 1995, following an oral hearing, the County

Administrative Court rejected the applicant's request that J be

returned to Utah. In doing so, the court referred to the interim order

of the District Court of Sandviken, according to which the applicant

lacked custody rights under Swedish law.

On 25 August 1995, also following an oral hearing, the judgment

was reversed on appeal by the Administrative Court of Appeal

(kammarrätten) of Sundsvall. This court noted at the outset that the

requested return of J to Utah could not be refused on the sole ground

that the applicant, temporarily and under Swedish law, had been

deprived of his custody rights. Moreover, stating that S.Ö. had

wrongfully removed J from her then habitual residence in 1992, the

court found that a new habitual residence for the purposes of the Hague

Convention had not been established for J in Sweden. The court

therefore concluded that J's habitual residence was still in Utah when

S.Ö. removed her to Sweden in February 1994, thus making the removal

wrongful. For this reason the court ordered that J be returned to Utah.

On 30 August 1995, following an appeal by S.Ö., the Supreme

Administrative Court (Regeringsrätten) granted leave to appeal and

ordered a stay of execution. Both parties subsequently made further

submissions to the court. By judgment of 20 December 1995 this court

reversed the Administrative Court of Appeal's judgment. The Supreme

Administrative Court concluded that the main issue of the case was

whether the 1994 removal of J from Utah was wrongful. The court went

on to find that this would be the case if it were established that J's

habitual residence at the time had been Utah, but not if that residence

had been Sweden. Having stated that a general objective of the Hague

Convention is to protect children from the harmful effects of being

uprooted from their familiar environment and that the object of the

term "habitual residence" in the Hague Convention is to specify the

kind of connection with a country that gives the right to protection

under that Convention, the court made the following general remarks:

(Translation)

"It is not consistent with this objective that a removal,

that takes place contrary to the will of one of the legal

custodians, should be instrumental in changing the child's

residence. On the other hand, it does not seem entirely

consistent with that objective to regard the circumstances

of a removal as a permanent obstacle to the establishment

of a new residence. If the child has been in the new

country for such a length of time and under such conditions

that it has acquired a connection with that country of the

kind referred to in the provisions, there should be no

obstacle to considering that it has acquired a new

residence. At this juncture, particular note should be

taken of the fact that under the provisions of section 12

of [the 1989 Act], as well as Article 12 of the [Hague]

Convention, the return of a child that has been wrongfullly

removed may be refused where, at the time of the submission

of the application for the child's return, at least one

year has passed from the time of the removal and the child

has settled down in its new environment."

The court went on to find that S.Ö.'s first removal of J from

Utah to Sweden - the 1992 removal - had taken place against the

applicant's will. Noting, however, that the applicant had not

instituted proceedings to have J returned following that abduction, the

court concluded:

"Considering this fact, the circumstances under which [J]

was abducted in January 1992 should not, on expiry of the

twelve month period referred to in both [the 1989 Act] and

the [Hague] Convention, prevent the child from acquiring

residence in Sweden. ... [T]he Supreme Administrative Court

finds that [J] must be considered to have acquired

residence in Sweden some time before November 1993, when

she was removed to the U.S.A. by [the applicant]. The

subsequent events - the abduction of [J] to the U.S.A. and

her stay there for some two months - cannot once again have

changed her residential status. Consequently ... she must

be deemed still to have had Swedish residence at the time

of the abduction from the U.S.A. in February 1994, which

abduction is at issue in the present case.

The abduction in February 1994 was therefore not wrongful

within the meaning of section 11 para. 2 of [the 1989 Act].

..."

Between 20 June and 2 September 1995, on account of the ongoing

Hague Convention proceedings before the Swedish courts, the applicant

and his new wife stayed in Sweden. During this period the applicant and

officials of the Social Council of Sandviken made numerous efforts to

bring about a meeting between the applicant and his daughter. However,

S.Ö. did not allow this.

On 19 March 1996, in the proceedings concerning custody and

divorce instituted by the applicant, the Utah State Court issued an

order awarding temporary custody of J to the applicant. Finding S.Ö.

in contempt of court, the court also ordered that J be returned to Utah

within 30 days. The order was not complied with.

b. Relevant international and domestic law

The preamble of the Hague Convention includes the following

statement as to the purpose of that Convention:

"... to protect children internationally from the harmful

effects of their wrongful removal or retention and to

establish procedures to ensure their prompt return to the

State of their habitual residence, ..."

The object of such a return is that, following the restoration

of status quo, the conflict between the custodian and the person who

has removed or retained the child can be resolved in the state where

the child is habitually resident.

The Hague Convention has been incorporated into Swedish law

insofar as provisions intended to reflect the provisions of that

convention have been included in the 1989 Act. Section 11 of this Act,

reflecting Article 3 of the Hague Convention, provides the following:

(Translation)

"A child who has been wrongfully removed to this country or

who is being wrongfully retained here shall, on petition,

be returned to the person from whom the child is being

withheld, if immediately before the removal or retention

the child was habitually resident in a Contracting State to

the Hague Convention.

A removal or retention is wrongful if the removal or

retention is in breach of the rights of custody which the

legal custodian or someone else has in the State where the

child was habitually resident immediately before the

removal or retention and those rights were also exercised

at the time the child was removed or retained, or would

have been exercised at that time if the removal or

retention had not taken place."

Section 12, subsection 1 of the 1989 Act, reflecting Article 12

of the Hague Convention, reads as follows:

(Translation)

"The return of a child pursuant to section 11 can be

refused

1. if, at the time of the submission of an application for

the child's return, a period of at least one year has

elapsed from the date of the wrongful removal or retention

and the child is now settled in its new environment,

..."

Neither the Hague Convention nor the 1989 Act explicitly defines

the term "habitual residence". In this respect, the travaux

préparatoires to the 1989 Act referred to the contexts in which this

term had previously been used in Swedish legislation.

Finally, section 15 para. 2 of the 1989 Act, reflecting Article

11 of the Hague Convention, provides the following:

(Translation)

" ... [C]ases concerning the return of children pursuant to

section 11 shall be decided upon expeditiously. If the

court has not reached a decision within six weeks from the

date of commencement of the proceedings, it shall, upon the

applicant's request, be obliged to give an account of the

reasons for the delay."

COMPLAINTS

1. The applicant complains of the fact that the Swedish courts

failed to recognise and respect the outcome of the Hague Convention

proceedings brought before the United States District Court. He also

complains of the fact that the Supreme Administrative Court, when thus

deciding on the case independently, concluded that his daughter's place

of habitual residence was Sweden. He claims that this constituted a

violation of his right to a fair hearing by an impartial tribunal and

his right to respect for his family life. Allegedly, it was also

discriminatory. In this respect, the applicant invokes Articles 6, 8

and 14 of the Convention.

2. Further under Article 6, the applicant complains of the length

of the proceedings in the Hague Convention cases before the United

States District Court and the Swedish courts.

3. Invoking Article 8 of the Convention, the applicant further

complains that the authorities failed to provide an effective means of

ensuring contact between him and his daughter during the time when the

Swedish Hague Convention case was pending before the courts.

4. The applicant also complains of the fact that the Swedish

Government financed S.Ö.'s litigation in both Sweden and the United

States, whereas he himself has had to pay some 76,000 U.S. dollars to

be legally represented. In this respect, he invokes Article 1 of

Protocol No. 1 to the Convention.

5. Under Article 13 of the Convention, the applicant finally submits

that he has not been provided with an effective remedy in respect of

the alleged violations of his Convention rights.

THE LAW