Views
Child Abduction and Habitual Residence in the Supreme Court of Canada
The Supreme Court of Canada, in Office of the Children’s Lawyer v Balev (available here), has evolved the law in Canada on the meaning of a child’s habitual residence under Article 3 of the Hague Convention. The Convention deals with the return of children wrongfully removed from the jurisdiction of their habitual residence.
A majority of the court identifies [paras 4 and 39ff] three possible approaches to habitual residence: the parental intention approach, the child-centred approach, and the hybrid approach. The parental intention approach determines the habitual residence of a child by the intention of the parents with the right to determine where the child lives. This approach has been the dominant one in Canada. In contrast, the hybrid approach, instead of focusing primarily on either parental intention or the child’s acclimatization, looks to all relevant considerations arising from the facts of the case. A majority of the court, led by the (now retired) Chief Justice, holds that the law in Canada should be the hybrid approach [paras 5 and 48]. One of the main reasons for the change is that the hybrid approach is used in many other Hague Convention countries [paras 49-50].
The dissent (three of the nine judges) would maintain the parental intention approach [para 110]. One of its central concerns is the flexibility and ambiguity of the hybrid approach [para 111], which the judges worry will lead to less clarity and more litigation. Wrongful removal cases will become harder to resolve in a timely manner [paras 151-153].
The majority did not apply the law to the facts of the underlying case, it having become moot during the process of the litigation [para 6]. The court rendered its decision to provide guidance going forward. The dissent would have denied the appeal on the basis that the child’s habitual residence was in Germany (as the lower courts had held).
The court briefly addresses the exception to Article 3 in what is commonly known as “Article 13(2)” (since it is not numbered as such) – a child’s objection to return – setting out its understanding of how to apply it [paras 75-81 and 157-160].
The Supreme Court of Canada has recently adopted the practice of preparing summaries of its decisions (available here for this decision) to make them more accessible to the media and the public. These are called “Cases in Brief”.
The CJEU settles the issue of characterising the surviving spouse’s share of the estate in the context of the Succession Regulation
It has not been yet noted on this blog that the CJEU has recently settled a classic problem of characterisation that has plagued German courts and academics for decades (CJEU, 1 March 2018 – C-558/16, Mahnkopf, ECLI:EU:C:2018:138). The German statutory regime of matrimonial property is a community of accrued gains, i.e. that each spouse keeps its own property, but gains that have been made during the marriage are equalised when the marriage ends, i.e. by a divorce or by the death of one spouse. According to § 1371(1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), the equalisation of the accrued gains shall be effected by increasing the surviving spouse’s share of the estate on intestacy by one quarter of the estate if the property regime is ended by the death of a spouse; it is irrelevant in this regard whether the spouses have made accrued gains in the individual case. How is this claim to be characterized? Read more
Torture, Universal Civil Jurisdiction and Forum Necessitatis: Naït-Litman v. Switzerland before the ECtHR
On March 15 the ECtHR, sitting as the Grand Chamber,decided on the Naït-Litman v. Switzerland case (application no. 51357/07), against the applicant and his claim of violation of Article 6 ECHR. Independently on whether one agrees or not with the final outcome, for PIL lawyers and amateurs the judgment (for very busy people at least the press release) is certainly worth reading. Read more
News
Virtual Workshop (in English) on June 6: Holger Spamann on Law Matters – Less Than We Thought. Or: Do Judges Actually Follow Conflict of Law Directives
On Tuesday, June 6, 2023, the Hamburg Max Planck Institute will host its 34th monthly virtual workshop Current Research in Private International Law at 11:00-12:30 CEST. Holger Spamann (Havard Law School) will speak, in English, about the topic
Law Matters – Less Than We Thought. Or: Do Judges Actually Follow Conflict of Law Directives
About the topic:
We conduct a randomized lab experiment with U.S. federal judges. The experiment puts the judges in the shoes of a judge deciding the applicable state law in a civil traffic accident case, which will determine whether a damage cap applies. We randomize the forum (with its choice of law directive) and the location of the accident in one state and the parties’ common domicile in another state.
One forum applies the traditional lex loci delicti rule, which calls for the application of the law of the state where the accident happened. The other forum applies the Restatement 2nd’s “most significant relationship” standard, which in our case calls for application of the law of common domicile. Judges’ decisions reflect this variation, but barely so. The data suggest that they tend to have a preference for lex loci delicti, and against damages caps. By contrast, we do not find that they are biased towards the more sympathetic party, which had been a third experimental treatment in our study.
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
Online Event for the 30th Anniversary of the HCCH 1993 Adoption Convention
To celebrate the 30th anniversary of the 1993 Adoption Convention, the Permanent Bureau of the HCCH will be hosting an online event on Wednesday, 31 May 2023, from 14:00 to 18:00 CEST.
The event will feature two round tables, one on “Learning from the Past” and one on “Looking to the Future”, composed of adoption experts from across the world. It will also feature a panel composed by a birth mother, an adoptive mother, and adopted persons, who will discuss their lived experiences.
During the event, panellists will present their views and will respond to selected questions sent in advance of the event.
To register, please visit: https://bit.ly/40Dnptk
For more information, please visit: https://bit.ly/3H8IV2j
Repository HCCH 2019 Judgments Convention: Special Edition
This is a special moment for us after a long way, and forgive us for highlighting it in a special edition of our Repository: Our book on the HCCH 2019 Judgments Convention that we have worked on over the last years has come out! Big thanks to all involved, including Hart Publishing who made this possible.
The HCCH 2019 Judgments Convention
Cornerstones, Prospects, Outlook
