[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 30, 2007
No. 06-13161 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 06-60082-CV-FAM
RICHARD M. HANLEY,
ELLEN HANLEY,
Plaintiffs-Appellants,
versus
NICHOLAS DANIEL ROY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 30, 2007)
Before BARKETT, KRAVITCH, Circuit Judges, and TRAGER,* District Judge.
TRAGER, District Judge:
*
Honorable David G. Trager, United States District Judge for the Eastern District of New
York, sitting by designation.
Appellants, Richard and Ellen Hanley ("the Hanleys"), filed a petition
pursuant to the Hague Convention on the Civil Aspects of International Child
Abduction (the "Hague Convention" or the “Convention”) and its implementing
legislation, the International Child Abduction Remedies Act of 1988 (“ICARA”),
42 U.S.C. § 11603(b), in the Southern District of Florida, alleging that Appellee,
Nicholas Daniel Roy ("Roy"), wrongfully removed their grandchildren to Florida
and seeking their return to Ireland. The district court granted Roy's motion to
dismiss the petition. The Hanleys now appeal.
BACKGROUND
The Hanleys are the maternal grandparents and testamentary guardians of
Roy's children – D.R. (born 1988), C.R. (born 1992) and R.R. (born 1997).1 The
Hanleys' daughter, Margaret, married Roy, a United States citizen, in England in
1986 and the two resided in England together. Margaret and Roy separated in
1995, attempted to reconcile in 1996, and then separated again that same year. At
the time of the separation, the Hanleys were helping support Margaret and the
children because the couple was financially unstable.
In 1997, shortly after the separation and the birth of their third child,
1
Roy took all three children from Ireland; however, because the eldest child, D.R., is
over 16, she is not subject to return under the Convention.
2
Margaret was diagnosed with cancer and wanted to return to Ireland. The Hanleys
bought Margaret and the children a house in Ireland and, at Margaret's request,
moved in with Margaret and the children to help care for them. Roy remained in
England. He did not pay any child support and continued to have financial
difficulties. A few years later, when Margaret's and Roy's marital home in England
had to be sold, Roy rejoined the family in Ireland and moved into the Hanleys’
home; however, he occupied a separate bedroom from Margaret.
In March 2000, her condition badly deteriorating, Margaret executed a will,
designating the Hanleys as trustees of her estate and testamentary guardians of the
children. Margaret died in November 2000 and her will was probated in August
2003.2 Roy and the children continued to live with the Hanleys from 2000 until
July 29, 2005, when Roy suddenly moved the children from Ireland to Florida
without the Hanleys' knowledge or consent, leaving only a note behind.
The Hanleys instituted this action in December of 2005 by filing a petition
for the return of their grandchildren pursuant to the Convention and ICARA. The
Hanleys alleged that Roy wrongfully removed the children from their "habitual
residence" in Ireland within the meaning of Article 3 of the Convention and
2
As the district court noted, there is much dispute over whether Roy was aware of the will
and the appointment of the Hanleys as testamentary guardians therein. At the very least, Roy
admits he was shown a copy of the will in December of 2005.
3
refused to return the children. The Hanleys further asserted that they had "rights of
custody" over the children within the meaning of Articles 3 and 5 of the
Convention. The district court denied the motion and ordered a written response to
the petition from Roy.
On March 14, 2006, Roy wrote a letter to the Hanleys, objecting to their
acting jointly as guardians of his children. On March 16, 2006, Roy filed a motion
to dismiss the emergency petition, arguing that the Hanleys did not have any
"rights of custody" over the children under Irish law.
On March 31, 2006, the parties and their counsel appeared for an evidentiary
hearing in federal district court in Florida. At the hearing, the trial court declined
to take witness testimony; instead it relied on pleadings, affidavits and dialogue
with counsel on applicable law. Subsequently, the court granted Roy’s motion to
dismiss the petition, finding that Roy's removal was not wrongful under Irish law.
In re Roy, 432 F. Supp. 2d 1297, 1298 (S.D. Fla. 2006). Specifically, the district
court found that the Hanleys' testamentary guardianship did not confer "rights of
custody" under the Convention because: 1) "the mother appointed the grandparents
to be guardians and not custodians, which she could have done"; and 2) Roy
objected to joint guardianship with the Hanleys. In re Roy, 432 F. Supp. 2d at
1301. We review the district court’s findings of law de novo and any of its
4
findings of fact for clear error. Lops v. Lops, 140 F.3d 927, 935 n.6 (11th Cir.
1998).
DISCUSSION
The narrow issue in this case is whether Roy’s removal of the children from
Ireland was wrongful under the Convention, such that the children should be
returned to Ireland for a determination of the Hanleys' guardianship rights by an
Irish court.
I. The Purpose of the Hague Convention
The Convention was adopted in 1980 "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, as
well as to secure protection for rights of access." Convention, pmbl. The
Convention generally intends to restore the pre-abduction status quo and deter
parents from crossing borders in search of a more sympathetic court for custody
hearings. March v. Levine, 249 F.3d 462, 468 (6th Cir. 2001); Friedrich v.
Friedrich, 78 F.3d 1060, 1063-64 (6th Cir. 1996).
To establish wrongful removal under the Convention, the Hanleys must
5
show that they had "rights of custody" and that they were exercising those rights
when Roy removed the children in 2005. Specifically, in Furnes v. Reeves, 362
F.3d 702 (11th Cir. 2004), this Court held that, under the Convention, the removal
of a child from his or her state of habitual residence is wrongful where the
petitioner establishes by a preponderance of the evidence that: (1) the child has
been removed or retained in violation of the petitioner’s "rights of custody" (i.e.,
"rights relating to the care of the person of the child . . . either jointly or alone");
and (2) "at the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the removal or
retention." Furnes, 362 F.3d at 712 (quoting in relevant part Articles 3 and 5 of the
Convention) (citations omitted). The existence of "rights of custody" are
determined by the law of the country in which the child habitually resides at the
time of removal.3 Convention, art. 3; Elisa Pérez-Vera, Explanatory Report: Hague
Conference on Private International Law, in 3 Acts and Documents of the
Fourteenth Session (Child Abduction) 426, 444, ¶ 64 (1981).
The Convention broadly defines "rights of custody" as "rights relating to the
care of the person of the child and, in particular, the right to determine the child's
place of residence" Convention, art. 5. These rights "may arise in particular by
3
Here, Ireland was the children's place of habitual residence at the time of removal;
accordingly, Irish law applies.
6
operation of law or by reason of a judicial or administrative decision, or by reason
of an agreement having legal effect under the law of the State." Convention, art. 3.
The intention of the Convention is "'to protect all the ways in which custody of
children can be exercised,' and the Convention favors 'a flexible interpretation of
the terms used, which allows the greatest possible number of cases to be brought
into consideration.'" Furnes, 362 F.3d at 716 n.12 (quoting Elisa Pérez-Vera,
Explanatory Report at 446-47, ¶ ¶ 71, 67 (emphasis in original)).
II. Testimonial Guardianship under Irish Law
The Hanleys were appointed "testamentary guardians" of the children by
Margaret's will4 and, pursuant to section 7 of the Guardianship of Infants Act of
1964 ("Guardianship Act"),5 were authorized under the laws of Ireland to act as
guardians of the children jointly with Roy, unless Roy objected. Upon Roy's
4
Margaret Hanley's probated will reads, in part, "I appoint the Said Richard Hanley and
Ellen Hanley to be Guardians of my infant Children."
5
Section 7(2) of the Guardianship Act grants a mother the power to appoint testamentary
guardians by will. Guardianship of Infants Act of 1964, § 7(2). Section 7(3) of the
Guardianship Act states, "[a] testamentary guardian shall act jointly with the surviving parent of
the infant so long as the surviving parent remains alive unless the surviving parent objects to his
so acting." Guardianship of Infants Act of 1964, § 7(3). If the surviving parent objects, "the
testamentary guardian may apply to the court for an order" enforcing the guardianship rights.
Guardianship of Infants Act of 1964, § 7(4).
Section 6(3) of the Guardianship Act explains the father's rights to guardianship upon the
death of the mother, stating that "[o]n the death of the mother of an infant the father, if surviving,
shall be guardian of the infant, either alone or jointly with any guardian appointed by the mother
or by the court." Guardianship of Infants Act of 1964, § 6(3).
7
objection, the Hanleys could seek a court determination enforcing their joint
guardianship rights. Guardianship of Infants Act of 1964, § 7(4), (5).
As noted by the district court, in Ireland, "guardianship" encompasses "the
duty to maintain and properly care for a child and the right to make decisions about
a child's religion and secular education, health requirements and general welfare."
In re Roy, 432 F. Supp. 2d at 1301 (quoting F.N. and E.B. v. CO., [2004] 4 IR
311, 318 (High Court, Ir.) (quoting Shatter's Family Law, p. 531 (4th ed.))).
Guardianship under Irish law is further described as follows:
Guardianship is a concept often confused with custody. In fact, it is
not necessary that the guardian of a child be also its custodian and day-to-
day caregiver. Guardianship is altogether a more global responsibility. The
concept of guardianship relates not to the specific matters of a child's daily
life, but to its overall welfare and upbringing. Guardianship, in other words,
concerns matters of overriding seminal importance to a child's upbringing,
e.g. where he or she is educated, according to which religious belief he or
she is to be reared, and whether the child should undergo serious medical
treatment.
Guardianship should not be seen solely as a right. It entails both rights
and duties, in particular the duty to ensure that a child is properly cared for
and that decisions relating to the child are made with his or her best interests
at heart.
Geoffrey Shannon, Child Law, § 2-40, p. 46 (2005). See also Geoffrey Shannon,
The Family Law Practitioner, § I-034, p. 118 (2000) (providing same definition of
guardianship).6
6
The district court, as well as both parties, regard the definition of guardianship provided
by Geoffrey Shannon, a Solicitor and Senior Lecturer of Child Law at the Law Society of
8
The issues are whether the district court correctly determined that the
Hanleys' status as testamentary guardians was not enough to accord them "rights of
custody" under the Convention and whether the district court correctly determined
that Roy's removal of the children constituted a proper objection to joint
guardianship.
III. "Rights of Custody" under the Convention
The district court held the Hanleys did not have "rights of custody" under the
Convention, interpreting "rights of custody" to mean “the right to physical care and
control” and being “fully responsible for the day-to-day care of the children.” The
district court further reasoned that because Irish law draws a distinction between
guardianship and custody, only a custodial right, and not a guardianship right,
could be considered a "right of custody" under the Convention. Therefore, the
district court concluded, because the Hanleys were appointed "guardians," and not
"custodians" of the children, they could not have "rights of custody" under the
Convention.
The district court erred in narrowly defining "rights of custody" so as to
exclude testamentary guardianship from its purview. "Rights of custody" is a term
Ireland, as authoritative, and rely on it in their respective arguments.
9
of art under the Convention and is “expressly defined” therein, Furnes, 362 F.3d
at 711 (emphasis in original), as "rights relating to the care of the person of the
child," Convention, art. 5. This Court has cautioned that, in applying the Hague
Convention, "we must look to the definition of 'rights of custody' set forth in the
Convention and not allow our somewhat different American concepts of custody to
cloud our application of the Convention’s terms." Furnes, 362 F.3d at 711. In
making this determination, this Court has further cautioned that:
it is crucial to note that the violation of a single custody right suffices to
make removal of a child wrongful. That is, a parent need not have "custody"
of the child to be entitled to return of his child under the Convention; rather,
he need only have one right of custody. Further, he need not have a sole or
even primary right of custody.
Id. at 714-15 (emphasis in original).
With this in mind, we turn to whether the Hanleys had "rights of custody"
under the Convention. In order to make this determination, we need to first assess
the types of rights the Hanleys were granted under Irish law by their status as
testamentary guardians and then decide whether these rights fall within the ambit
of "rights relating to the care of the person of the child" under the Convention.
As noted earlier, joint guardianship under Irish law involves "matters of
overriding seminal importance to a child's upbringing, e.g. where he or she is
educated, according to which religious belief he or she is to be reared, and whether
10
the child should undergo serious medical treatment," and entails "the duty to
ensure that a child is properly cared for." Geoffrey Shannon, Child Law, § 2-40,
p. 46 (2005). These rights are analogous to the rights we previously have found
sufficient to create "rights of custody" under the Convention in Furnes v. Reeves.
In Furnes, the petitioner was party to a custody agreement granting him
"joint parental responsibility," defined, inter alia, under Norwegian law as the right
"to make decisions for the child in personal matters." Furnes, 362 F.3d at 706-07.
This right included a ne exeat right, which is the right to determine whether the
minor child could live outside the country. Id. at 707-08. In determining whether
these rights amounted to "rights of custody" under the Convention, we determined
that a right "to make decisions for the child in personal matters" granted under
Norwegian law "necessarily embraces a broad range of personal decisions, such as
decisions regarding the personal care, protection, maintenance, and finances of the
child" and that the child's care "would include everyday decisions about the child's
shelter, food, clothing, education, and medical needs." Id. at 713. Importantly, we
found that even though the petitioner may have been excluded from exercising
decisions "concerning important aspects of the child's care" under applicable law,
the petitioner, nonetheless, retained some decisions regarding aspects of the child's
care and those rights "[fell] within the ambit of decisions relating to 'the care of the
11
person of the child' within the meaning of Article 5 of the Convention." Id. at 713-
14, 714 n.11. Because the petitioner in Furnes additionally had ne exeat rights,
there was no need to rest our holding entirely on the fact that petitioner had the
right "to make decisions for the child in personal matters." However, the opinion's
strong dictum indicated that that right "alone may well grant [petitioner] a 'right of
custody' as defined under the Convention." Id. at 713.
As in Furnes, the Hanleys' status as joint testamentary guardians is
sufficient to create "rights of custody" under the Convention. As guardians, the
Hanleys were endowed with joint decision-making authority over the children's
education, health, and religious life, see, e.g., F.N. and E.B. v. C.O., 4 IR at 318,
and the Hanleys indisputably exercised their rights to care and to provide for the
children pursuant to their lawful guardianship status. Although the Irish
guardianship rights afforded to the Hanleys are different rights than the Norwegian
right of joint parental responsibility and corresponding ne exeat right afforded to
the petitioner in Furnes, both rights necessarily involve the "care of the person of
the child" within the meaning of the Convention. Importantly, Irish courts agree,
holding that guardianship rights under Irish law qualify as "rights of custody"
under the Hague Convention. See, e.g., R.C. v. I.S., [2004] 2 I.L.R.M. 285, 294
(High Court, Ir.) (stating that a "guardian" may not have "custody of the child
12
under Irish law" but is still "a person who has 'rights of custody' . . . within the
meaning of art. 5 of the [C]onvention"). See also Response of Ireland to the 2006
Questionnaire concerning the practical operation of the Hague Convention of 25
October 1980 on the Civil Aspects of International Child Abduction, 1 (2006),
available at http://www.hcch.net/upload/abd_2006_ie.pdf (equating guardianship
rights under Irish law with "rights of custody," and commenting that some
countries "which have no equivalent in Irish law" "have difficulties with the
understanding of the notion" that persons afforded guardian status under Irish law
"have guardianship rights and thus custody within the meaning of Article 3 of the
Hague Convention."). Accord H (Abduction: Rights of Custody), [2000] 1 F.L.R.
201 (House of Lords, Eng.) (holding that an Irish court possessed "rights of
custody" over removed child by virtue of petitioner's guardianship application,
which had been pending in that Irish court one month before removal).
Thus, the substantive rights the Hanleys enjoyed as testamentary guardians
under Irish law were sufficient to create "rights of custody" under the Convention.
IV. Objection to Guardianship under Irish Law
Alternatively, the district court held that the Hanleys' "rights of custody"
were abrogated when Roy objected to the joint guardianship arrangement. The
13
district court characterized Roy’s removal of the children from Ireland as a
"constructive" objection to the joint guardianship arrangement with the Hanleys,
thus, terminating the Hanleys' guardianship. In re Roy, 432 F. Supp. 2d at 1302
n.3. The district court then reasoned that because the Hanleys failed to go to an
Irish court to confirm or enforce their guardianship, they were no longer guardians
of the children and, therefore, did not possess the requisite "rights of custody"
necessary for the return of their grandchildren.
Under the Guardianship Act, the testamentary guardian acts jointly with the
surviving parent “unless the surviving parent objects to his so acting.”
Guardianship of Infants Act of 1964, § 7(3). If the surviving parent objects, "the
testamentary guardian may apply to the court for an order under this section."
Guardianship of Infants Act of 1964, § 7(4). A court has three possible responses
to a guardian’s application : (1) refuse to make an order, whereby the surviving
parent remains sole guardian; (2) make an order that the guardian act jointly with
the surviving parent; or (3) make an order that the guardian be solely responsible
for the child to the exclusion of the surviving parent. Guardianship of Infants Act
of 1964, § 7(5).
The district court determined that an objection by Roy to the Hanleys'
testamentary guardianship status automatically abrogated their status – as opposed
14
to merely putting the Hanleys on notice that they should seek, if they so wished, a
judicial determination pursuant to section 7 of the Guardianship Act. The
legislative debates and legal commentary on the Guardianship Act seem to support
this conclusion. See. e.g., Seanad Eireann, Vol. 57, March 18, 1964, Guardianship
of Infants Bill, 1963, Committee and Final Stages, pp. 773-774 (Q: "If the
surviving parent objects under section 7 to that guardian, is that guardian there and
then completely extinguished for all time? " A: "No; he is there still but he does not
act as a guardian so long as the surviving parent objects unless he can go to court
and get himself established."); Geoffrey Shannon, Parental Responsibilities,
National Report: Ireland, Law Society of Ireland, Dublin, 16, available at
http://www2.law.uu.nl/priv/cefl/Reports/pdf2/Ireland.pdf (If the surviving parent
objects, "the testamentary guardian cannot act as guardian unless, on application to
the court, the court grants an order that the testamentary guardian shall act as
guardian").
Assuming that an objection by Roy would have precluded the Hanleys from
exercising their testamentary guardianship pursuant to section 7 of the
Guardianship Act, and, thus, their "rights of custody" under the Convention until
they obtained a court order, the timing of this objection is critical. The Convention
makes clear that "rights of custody" are measured at the time of the removal.
15
Convention, art. 3. It is undisputed that Roy had not objected to the Hanleys'
guardianship at any time before the removal and his letter formally objecting to the
guardianship was dated almost eight months after the removal. This leaves the act
of removal itself – what the district court dubbed Roy's "constructive" objection –
as the only objection that could have terminated the Hanleys' guardianship, and,
thus, their "rights of custody," at the time of removal.7
Roy's removal of the children to Florida cannot be considered a
"constructive" objection sufficient to terminate the Hanleys' guardianship status
under Irish law and, therefore, their "rights of custody" under the Convention.
First, it is unclear whether Irish law permits constructive objections to the
Guardianship Act; indeed, the legislative history cited above implies that guardians
must be placed on actual notice of the objection – otherwise, they would not know
of the need to go court to determine whether the guardianship would continue.
See, e.g., Seanad Eireann, Vol. 57, March 18, 1964, Guardianship of Infants Bill,
1963, Committee and Final Stages, pp. 773-774. Second, as the leading Irish
authority notes, it is not permissible to remove a child from Ireland during the
course of an application pursuant to the Guardianship Act to determine issues of
7
It is hard to understand how the district court could have concluded that the act of
removal could have been intended as an objection by Roy to the guardianship when Roy himself
claims he was unaware that the will granted the Hanleys joint guardianship until December
2005, several months after he left Ireland.
16
guardianship. Shannon, Parental Responsibilities, National Report: Ireland, at 20-
21 (citing H (Abduction: Rights of Custody), [2000] 1 F.L.R. 201). This is
because, once a party serves the court with an application for guardianship
pursuant to the Guardianship Act, the Irish court itself acquires "rights of custody"
over the removed child by virtue of the pending application. See, e.g., H
(Abduction: Rights of Custody) [2000] 1 F.L.R. 201. As such, the district court's
holding that Roy could void the guardianship by his self-help act of leaving the
jurisdiction without prior notice, and, thus, deprive the Hanleys of the opportunity
to obtain a judicial determination, severely undercuts the policies underlying the
Guardianship Act as well as the authority of the Irish courts to determine
guardianship disputes.
As to the Convention, permitting the very act which the Convention seeks
to prevent – namely, flight – to constitute a constructive objection sufficient to
terminate the Hanleys' "rights of custody" would make a mockery of the
Convention. To the extent that Roy desired to object to the joint guardianship
arrangement, this should have been expressed directly to the Hanleys so that proper
guardianship hearings could be instituted in the courts of Ireland. To express an
objection by removing children from their place of habitual residence with no prior
notice to their guardians must be, and is, in clear violation of the Convention. For
17
the district court to deem this wrongful behavior as a "constructive" objection, and,
therefore, allow the act of wrongful removal itself to nullify the Convention of its
power to return wrongfully removed children rewards abduction and thwarts the
Convention's very purpose.
As Roy could not evade Irish law and the Convention by giving notice of his
objection to the joint guardianship arrangement by the act of removal, the removal
of the children to Florida was insufficient to terminate the Hanleys' guardianship at
the time of removal. Accordingly, the Hanleys both had and were actually
exercising 8 their "rights of custody" at the time of removal, rendering Roy's
removal wrongful.
V. Underlying Custody Dispute
A district court considering an ICARA petition cannot decide the underlying
custody dispute, but only has jurisdiction to decide the merits of the
wrongful removal claim. Lops, 140 F.3d at 936; Friedrich, 78 F.3d at 1063-64; 42
U.S.C. § 11601(b)(4). In the instant case, the district court order referred to Roy as
8
The district court did not make a finding whether the Hanleys were exercising their
"rights of custody" in Ireland prior to the removal of the children to the Florida, instead focusing
its analysis on whether Roy's objection abrogated the Hanleys' guardianship. There is nothing in
the record to indicate that the Hanleys were not actually acting as joint guardians at the time of
removal. In fact, the record is clear that Roy and the children were still living in the Hanleys'
house while the Hanleys provided for the children, paying for private school tuition, clothing and
household expenses until the day Roy removed them to Florida.
18
a “fit father,” In re Roy, 432 F. Supp. 2d at 1298, and gave undue legal deference
to Roy’s post-wrongful removal objection to terminate the testamentary
guardianship of the Hanleys. However, it was not for the district court to decide
who may or should have post-objection custody of the children.
The order further states that the Hanleys are “free to use the Irish courts to
enforce any rights that they may have under Irish law.” Id. at 1303. It is precisely
for this purpose that the children should be returned to Ireland until the
guardianship of the children is properly determined by the appropriate Irish court.
CONCLUSION
Roy is ordered to return the two minor children to Ireland to give the
Hanleys an opportunity to institute proper proceedings pursuant to section 7 of the
Guardianship Act. In the event Roy fails to do so promptly, the district court shall
order the minor children turned over to the Hanleys to facilitate the return of the
children. Accordingly, the holding of the district court is
REVERSED.
19