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Thursday, September 29, 2011

Lockhart v Smith, 2011 WL 4402361 (D.Me.) [Canada] [Wishes of the Child]

In Lockhart v Smith, 2011 WL 4402361 (D.Me.) the District Court granted Kimberly Ann Lockhart’s second Petition for Return of her child. In 2006, the Court held an evidentiary hearing on her first Petition for Return and it incorporated by reference the factual findings from its earlier opinion, Lockhart v. Smith, 2006 WL 3091295 (D.Me. Oct. 20, 2006). Petitioner was a citizen of Canada and resided in Nova Scotia, Canada. She was the mother of S.P.S. and G.T.S. Respondent Philip Gavin Smith ("Smith") was a citizen of the United States and resided in Maine. He was their father. S.P.S. was the eleven year old daughter of Lockhart and Smith. G.T.S. was their twelve year old son. They each had dual citizenship in the United States and Canada.

Petitioner and Respondent stipulated that Petitioner was the custodian of the Children; that Canada was their habitual residence; that Petitioner was exercising or attempting to exercise her custodial rights at the time she filed her Petition; and that Petitioner made a prima facie case against Respondent for wrongful retention under the Hague Convention. In addition the Respondent waived all other defenses under the Hague Convention and stipulated that his sole defense in this action was the "child's wishes" defense under Article 13 of the Hague Convention.

The District Court indicated that it had interviewed the Children in camera. When it interviewed S.P.S. in camera, it found her to be delightful and mature. She expressed that she was happy to return home to Canada, that she missed her friends in Canada, and that she was ready to return to school in Canada. S.P.S. expressed no negative views about returning to Canada and she did not object to returning to Canada. When it interviewed G.T.S. in camera, it found him to be delightful and  mature as well. He also expressed that he was happy to return home to Canada, that he missed his friend in Canada, and that he was ready to return to school in Canada. G.T.S. expressed no negative views about returning to Canada and he did not object to returning to Canada.

The District Court found that Petitioner had made a prima facie case against  Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expressed no negative views about returning to Canada and he did not object to returning to Canada.

The District Court found that Petitioner had made a prima facie case against  Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expe views about returning to Canada, and he expressed that he would be happy to return to Canada. The Court found that Respondent has failed to establish that the Children objected to being returned to Canada, and granted the Petition.