26 March 1993 First Division Petition No. 8104 BR. (Stamp) COPY Netherlands Supreme Court Ruling in the case of Jack Clay BURGESS II, of Ohio, United States of America PETITIONER in the cassation proceedings, formerly represented by: G M M den Drijver now represented by: M J Schenk against Liesbeth SMID of Hindeloopen, DEFENDANT in the cassation proceedings, represented by: E van Staden ten Brink. 1. The proceedinas before courts inquiring into the facts On 20 September 1991 the International Legal Assistance Division of the Constitutional and Criminal Law Department of the Ministry of Justice, in its capacity as the Central Authority pursuant to section 4 of the Act of 2 May 1990 (Bulletin of Acts, Orders and Decrees no. 202), acting on its own behalf and on behalf of the petitioner in the cassation proceedings - hereinafter referred to as the father - submitted an application as referred to in section 12 of the said Act to the Children's Judge at Leeuwarden District Court, requesting the court: a. to order that Morgan Elizabeth Burgess be surrendered and returned to the aforesaid father, who had temporary custody of the minor child; b. if necessary to order the child to be temporarily entrusted to the Child Care and Protection Board; c. to sentence the defendant in the cassation proceedings - hereinafter to be referred to as the mother - to pay to the Central Authority and/or the father the costs incurred by them in connection with the abduction or return of the child. After the mother had entered a statement of defence to the application, the case was referred by the Children's Judge to the District Court, which dismissed the application by a judgement of 13 November 1991. The Central Authority, acting on its own behalf and on that of the father, lodged an appeal against this judgement with Leeuwarden Court of Appeal, which upheld the contested judgement of the District Court by a decision of 20 December 1991. The Court of Appeal decision is appended to this ruling. 2. Cassation proceedings The father has instituted an appeal in cassation against the decision of the Court of Appeal. The petition for cassation is appended to and forms part of this ruling. The mother has sought dismissal of the appeal. Counsel has outlined the case on behalf of the parties. The advisory opinion by Mr Strikwerda, the Advocate General, takes the view that the appeal should be dismissed. 3. Assessment of the statement of grounds for appeal 3.1 The following may be taken into account in the cassation proceedings. The parties were married in Workum, in the municipality of Nijefurd, the Netherlands, on 8 September 1986. They subsequently took up residence in Chesapeake, Virginia, USA, where Morgan Elizabeth Burgess (hereinafter to be referred to as Morgan) was born of the marriage on 24 February 1988. On 31 January 1991 the father became unemployed. In anticipation of this, the mother and Morgan had travelled to the Netherlands on 15 January 1991, in accordance with an agreement to that effect reached by the parties. She and Morgan went to live with her parents in Hindeloopen, in the municipality of Nijefurd. On 21 January 1991 she registered her name in the population register of the municipality and subsequently applied for benefit under the National Assistance Act. The marital home in Chesapeake was put up for sale. On or about 16 March 1991 the father asked the mother to return to Chesapeake with Morgan. The mother did not comply with this request. On 6 June 1991, the father applied for a custody order for Morgan to the court in Chesapeake, which, by judgement of 26 July 1991, awarded temporary custody of Morgan to the father, ordered her return and adjourned the case until 1 November 1991. The mother was notified of this judgement. Despite having been summonsed by the court in Chesapeake, she had not appeared before it. 3.2 The application which opened the present proceedings on 20 September 1991, which seeks in brief an order for the surrender and return of Morgan to the father, is based on the Convention on the Civil Aspects of International Child Abduction, concluded in The Hague on 25 October 1980 (Netherlands Treaty Series 1987, no. 139) in conjunction with the Act of 2 May 1990 (Bulletin of Acts, Orders and Decrees, no. 202) designed to implement the Convention and other instruments. The application was submitted by the Central Authority designated pursuant to section 4, subsection 1 of the Act, as referred to in article 6 of the Convention, acting on its own behalf and on behalf of the father in submitting its petition. In these proceedings the Central Authority asserts, in brief, that the substance of the agreement between the parties referred to at 3.1 above, pursuant to which the mother travelled to the Netherlands with Morgan on 15 January 1991, was that the mother would seek employment for the father in the Netherlands, and that if she succeeded the parties would take up residence in the Netherlands, but that if her efforts failed - which is what actually happened - she and Morgan would return to the father in the marital home in Chesapeake. The mother challenged this account, arguing for her part that the substance of the agreement was that, in connection with the father's being made redundant, the parties would take up residence in the Netherlands, where the father would look for a job, and that she would precede him, with Morgan, to investigate the job market, while the father would follow after selling the marital home in Chesapeake; that the father did not adhere to this agreement, but remained in the USA where he sought and found employment, and rented, rather than sold, the marital home. The District Court upheld the mother's interpretation of the agreement made by the parties and on that basis held - in brief - that Morgan's habitual place of residence within the meaning of article 3 of the Convention was in the Netherlands, so that there was no question of wrongful removal or retention of Morgan as referred to in article 3. The Court of Appeal agreed with the opinion of the District Court that the time spent by Morgan in the Netherlands could be described as having her habitual place of residence in the sense referred to above, reasoning that the mother settled in the Netherlands as the result of an agreement with the father; that while this agreement did not specify that this stay was to be permanent it was intended to last for an indefinite period and that Morgan's habitual place residence, within the meaning of article 3 of the Convention, was therefore transferred to the Netherlands with immediate effect. This fact alone eliminated the possibility of wrongful removal or retention as referred to in article 3 of the Convention . 3.3 The statement of grounds for appeal puts forward an argument on a point of law contesting the Court of Appeal's opinion that the time spent by Morgan in the Netherlands could be described as having her habitual place of residence here. In support of this argument, the statement argues that the documents do not reveal a definite agreement by the parents to take up residence in the Netherlands, for the agreement was that the parents would settle in the Netherlands if the father found a suitable job in this country. The statement argues that, in these circumstances, it cannot be alleged - in particular in view of the nature and purpose of the Convention - that Morgan's habitual place of residence had been moved to the Netherlands. 3.4 It appears from the foregoing that the argument is based on a claim related to the facts, namely concerning the agreement between the parties, which is not compatible with what the Court of Appeal determined with regard to the substance of the agreement. The argument is therefore unfounded. 3.5 The statement of grounds for appeal also alleges that the Court of Appeal did not give sufficient reasons "from which it may be deduced that the petitioner and the respondent had decided in consultation in favour of a new permanent domicile or place of residence for themselves and their child". This argument is likewise unfounded, as it is based on an incorrect interpretation of the contested judgement. In holding that the stay in the Netherlands envisaged by the agreement between the parties was "if not permanent, nevertheless to last for an indefinite period", the Court of Appeal did not determine but in fact left open the question of whether they had agreed to take up permanent residence in the Netherlands. Cassation may not therefore be granted on the basis of the statement of grounds for appeal. 4. Rulinq The Supreme Court dismisses the appeal. This ruling was handed down by Mr Royer, president of the court, presiding, and Justices Roelvink, Heemskerk, Nieuwenhuis and Swens-Donner, and was pronounced in public by Justice Davids on 26 March 1993. (Two signatures) (Stamp): Issued as a true copy of the original (Signed) Clerk to the Supreme Court of the Netherlands