"CONSPIRACY TO KIDNAP ALESSIA IS CONFIRMED"
Story of Alessia’s
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6) Approximately eight (8) weeks later in March 2008, Simmone informed Bart that she was pregnant. Bart, while pleased with the news, stated he thought Simmone was on birth control and that they had agreed to wait until after their wedding to start a family...
IT'S A GIRL!
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ALESSIA'S FIRST PICURE
Simmone stated: “I honestly stopped taking my birth control pills and didn't think you would mind since we’re planning to get married in May anyway.”
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Naturally, Bart believed his new Fiancé and never gave it a second thought...
7) Indeed, Bart sent a "Farewell Email" to all of their NY friends declaring: "never give up on meeting someone special"; as he had finally "met an amazing woman who loved him, that they were moving to Texas to start a new life and that she would soon, 'please God', be giving birth to a brand new baby girl."
7) Indeed, Bart sent a "Farewell Email" to all of their NY friends declaring: "never give up on meeting someone special"; as he had finally "met an amazing woman who loved him, that they were moving to Texas to start a new life and that she would soon, 'please God', be giving birth to a brand new baby girl."
SIMMONE'S BABY SHOWER
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8) Several of Bart & Simmone's friends & family got together and threw Simmone a beautiful baby shower at a trendy restaurant in Dallas. Many of them submitted evidence of both the shower and of Simmone's deception to them of their 'vacation' to England leading up to Alessia's abduction.
BART SHOWED UP WITH FLOWERS FOR ALL THE GIRLS WHO CAME TO THE SHOWER
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SIMONE'S BABY SHOWER IN TEXAS
ALL OF ALESSIA'S GIFTS & FAVORITE TOYS WERE LEFT IN TEXAS, ALONG WITH BART & SIMMONE'S CLOTHING AND PERSONAL ITEMS TO STAGE THE APPEARANCE THEY WOULD BE RETURNING HOME
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FRESH EVIDENCE CONFIRMS
RELATIONSHIP WAS A SCAM
& SIMMONE WAS LIVING A 'DOUBLE-LIFE'
9) Above (and newly discovered) evidence coorborated by the Dept of State provided irrefutable proof of Simmone's deception and perjurious testimony during the Hague trial. In each Affidavit and during cross-examination, Simmone adamantly & repetitively declared: "they were NEVER engaged and she infact had told Bart that she did [not] want to marry him, that she only came to New York for a 'short visit' and fell pregnant by 'accident'." Simmone declared she had "only agreed to have a baby in America because it was cheaper"and she "NEVER considered the United States her home and had told everyone that she and Alessia (with no mention of Bart) 'would be returning to England in a matter of months.'"
10) Newly discovered evidence authenticated by U.S. authorities now confirms the entire relationship had been a scam within DAYS of their engagement and that Simmone had been living a 'double-life':
(a) Preponderance of emails & Skype messages authenticated by U.S. authorities illustrated Simmone's 'planned-pregnancy' and conspiracy to remove the child, (one year after her birth) were in place within weeks of her engagement. In one such email dated Jan 31 (four weeks after they were engaged) Simmone’s stepfather wrote “…don’t get married, I dare say knowing you the way I do, you planned all of this anyway and will do what you will.”
(b) Simmone later replied: "I definitely don't want to marry him;" and in another email to her stepfather, Simmone wrote: "Yes, between ourselves we are engaged, all of Bart's friends and family here know about it."
(c) Simmone emailed a UK friend who was coming to visit her & Bart in New York with her fiancé. Simmone gave her friend specific instructions about what could (and could not) be said. Simmone wrote: "You can ask whatever you want in front of Bart, I may not answer truthfully, but you you can ask"... "all you know in front of Bart is that I am pregnant and everything is fine."
SIMMONE ALWAYS REFERRED TO BART
"AS HER HUSBAND"
(d) Evidence submitted to the Department of State illustrated Simmone always (and continued) to refer to Bart as her 'Husband' in emails, Hallmark cards, and to friends and family right up to Alessia's abduction; yet the foreign judgement avoided this evidence and maintained an undertone of partialiy & bias towards Alessia's American father. The judge made multiple declalrations throughout the judgment about BART's references to being ‘engaged’ and referring to Simmone as his ‘wife.’ Paragraph after paragraph, the judge labeled Bart delusional and "blind about the status of their relationship." Despite a preponderence of evidence to the contrary, the judge arbitrarily & capriciously believed Simmone's declaration of only planning to have the baby in the U.S. and return to England." Spuriously, not once did the foreign judge mention ANY evidence confirming it was the mother who "always referred to Bart as her husband" - right up to Alessia's abduction...
* The very fact the UK judge labeled Bart "blind to the status of their relationship" only coorborated Bart's argument with the Department of States's evidence that he was indeed travelling to UK under a "false premise" that would ultimately leave him with a 'fait accompli.'
(f) In a series of more emails and Skpye messages, Simmone mapped out exactly how long she would stay in the relationship after Alessia's birth; the difficulties in removing Alessia from Texas; and how she planned to get Alessia out of the country by subterfuge. Specifically, Simmone declared she would: "only stay for a year or so" after Alessia birth. But the most compelling evidence was found in a Skype message to a UK friend declaring:
“he knows I am delaying things... he may have guessed…
"I will leave stuff behind… be selective on what I leave…
"stuff I will learn to live without.”
Indeed, Simmone followed her plans of subterfuge
nearly to the date and (on the evidence) Simmone
"left everything behind"
(see all 3 pages of the pdf)
RELATIONSHIP WAS A SCAM
& SIMMONE WAS LIVING A 'DOUBLE-LIFE'
9) Above (and newly discovered) evidence coorborated by the Dept of State provided irrefutable proof of Simmone's deception and perjurious testimony during the Hague trial. In each Affidavit and during cross-examination, Simmone adamantly & repetitively declared: "they were NEVER engaged and she infact had told Bart that she did [not] want to marry him, that she only came to New York for a 'short visit' and fell pregnant by 'accident'." Simmone declared she had "only agreed to have a baby in America because it was cheaper"and she "NEVER considered the United States her home and had told everyone that she and Alessia (with no mention of Bart) 'would be returning to England in a matter of months.'"
10) Newly discovered evidence authenticated by U.S. authorities now confirms the entire relationship had been a scam within DAYS of their engagement and that Simmone had been living a 'double-life':
(a) Preponderance of emails & Skype messages authenticated by U.S. authorities illustrated Simmone's 'planned-pregnancy' and conspiracy to remove the child, (one year after her birth) were in place within weeks of her engagement. In one such email dated Jan 31 (four weeks after they were engaged) Simmone’s stepfather wrote “…don’t get married, I dare say knowing you the way I do, you planned all of this anyway and will do what you will.”
(b) Simmone later replied: "I definitely don't want to marry him;" and in another email to her stepfather, Simmone wrote: "Yes, between ourselves we are engaged, all of Bart's friends and family here know about it."
(c) Simmone emailed a UK friend who was coming to visit her & Bart in New York with her fiancé. Simmone gave her friend specific instructions about what could (and could not) be said. Simmone wrote: "You can ask whatever you want in front of Bart, I may not answer truthfully, but you you can ask"... "all you know in front of Bart is that I am pregnant and everything is fine."
SIMMONE ALWAYS REFERRED TO BART
"AS HER HUSBAND"
(d) Evidence submitted to the Department of State illustrated Simmone always (and continued) to refer to Bart as her 'Husband' in emails, Hallmark cards, and to friends and family right up to Alessia's abduction; yet the foreign judgement avoided this evidence and maintained an undertone of partialiy & bias towards Alessia's American father. The judge made multiple declalrations throughout the judgment about BART's references to being ‘engaged’ and referring to Simmone as his ‘wife.’ Paragraph after paragraph, the judge labeled Bart delusional and "blind about the status of their relationship." Despite a preponderence of evidence to the contrary, the judge arbitrarily & capriciously believed Simmone's declaration of only planning to have the baby in the U.S. and return to England." Spuriously, not once did the foreign judge mention ANY evidence confirming it was the mother who "always referred to Bart as her husband" - right up to Alessia's abduction...
* The very fact the UK judge labeled Bart "blind to the status of their relationship" only coorborated Bart's argument with the Department of States's evidence that he was indeed travelling to UK under a "false premise" that would ultimately leave him with a 'fait accompli.'
(f) In a series of more emails and Skpye messages, Simmone mapped out exactly how long she would stay in the relationship after Alessia's birth; the difficulties in removing Alessia from Texas; and how she planned to get Alessia out of the country by subterfuge. Specifically, Simmone declared she would: "only stay for a year or so" after Alessia birth. But the most compelling evidence was found in a Skype message to a UK friend declaring:
“he knows I am delaying things... he may have guessed…
"I will leave stuff behind… be selective on what I leave…
"stuff I will learn to live without.”
Indeed, Simmone followed her plans of subterfuge
nearly to the date and (on the evidence) Simmone
"left everything behind"
(see all 3 pages of the pdf)
SETTING THE STAGE TO KIDNAP ALESSIA
FROM THE UNITED STATES
Evidenced by ascertainable facts: Simmone 'voluntarily adopted' the United States; 'particularly Texas' for a settled purpose. Simmone’s deception had hoped to stage a continuing appearance of their regular, habitual mode of life in America; the ‘continuity’ of which would appear (by subterfuge) to persist ‘despite their temporary absence' to visit relatives in the United Kingdom. Therefore, setting precedent under English case law (links below) ANY enforced presence by reason of subterfuge or kidnapping to the United Kingdom under false premises, "would be so overwhelming a factor it would negate any voluntary will to be where one is." Further, since they were not married and Simmone insisted she had NO plans to marry Bart; he would be an 'illegal-alien' in the United Kingdom and could be deported at any time. "If a man’s presence in a particular place or country is 'unlawful', eg in breach of the immigration laws, he can NOT rely on his unlawful residence as constituting ordinary residence."
Alessia’s Father was walking into a baited trap. A 'fait accompli.' Bart was [fundamentally] mistaken as to the character or effect of Simmone's true intentions; a clear [mistake of fact] that, even putting Simmone's evidence at its highest, [vitiated] any alleged agreement by Bart as there was clearly [no] ‘consensus ad idem' (meeting of the minds).
BY LAW
ALESSIA'S HABITUAL RESIDENCE
REMAINED IN TEXAS
It was illustrated there was most certainly a “sufficient degree of continuity” that continued to exist for this family at their habitual residence in the United States – 'despite their temporary absence.' Everything about this family was left at home in Texas and everything about their ‘habitual mode of life’ in the United States continued to persist and remained consistent. The Department of State confirmed that Simmone herself continued Alessia's medical benefits FIVE DAYS BEFORE THEY LEFT FOR VACATION. Therefore, Alessia's jurisdiction remains in Texas and she should have been returned home under England's own Law - their 'Doctrine of Precedent.'
See England's law on Habitual Residence.
1) Bart & Simmone moved to Dallas the end of April 2008 and Alessia was born in Texas on November 13, 2008. On September 26, 2009, Bart, Simmone, and Alessia (then just 10 months old) left for yet one of several vacations the couple had taken to England to 'visit' Simmone’s family...
All highlited links are Active:
2) They purchased 'ROUND-TRIP' tickets (just as they always had)
3) Enterprise Rent-a-Car submitted evidence that the couple approached the branch to "inquire on rental prices for their vacation to England."
4) Alessia's clinic submitted evidence on Alessia's behalf:
Simmone had 'carefully-coordinated' a doctor’s appointment for Alessia the week after they were to return from vacation. The clinic submitted a second statement that ‘neither party requested copies of Alessia’s medical records’ – an obvious action of ANY family moving to another city… let alone another country!
5) A Branch Manger of Starbucks submitted an AFFIDAVIT on Alessia's behalf. Pre & post Alessia’s birth, Simmone had taken daily walks to a local Starbucks near the family home in Texas and subsequently made friends with the local staff. Simmone told the Manager and several of the Baristas that she was "homesick and vacationing with Bart to see her family but would be returning home before Christmas.” One of the Baristas happened to be from England and subsequently formed a significant bond with Simmone...
6) The English Barista also submitted an Affidavit confirming Simmone had told her "they were ‘going on vacation’ and would be returning in December."
FROM THE UNITED STATES
Evidenced by ascertainable facts: Simmone 'voluntarily adopted' the United States; 'particularly Texas' for a settled purpose. Simmone’s deception had hoped to stage a continuing appearance of their regular, habitual mode of life in America; the ‘continuity’ of which would appear (by subterfuge) to persist ‘despite their temporary absence' to visit relatives in the United Kingdom. Therefore, setting precedent under English case law (links below) ANY enforced presence by reason of subterfuge or kidnapping to the United Kingdom under false premises, "would be so overwhelming a factor it would negate any voluntary will to be where one is." Further, since they were not married and Simmone insisted she had NO plans to marry Bart; he would be an 'illegal-alien' in the United Kingdom and could be deported at any time. "If a man’s presence in a particular place or country is 'unlawful', eg in breach of the immigration laws, he can NOT rely on his unlawful residence as constituting ordinary residence."
Alessia’s Father was walking into a baited trap. A 'fait accompli.' Bart was [fundamentally] mistaken as to the character or effect of Simmone's true intentions; a clear [mistake of fact] that, even putting Simmone's evidence at its highest, [vitiated] any alleged agreement by Bart as there was clearly [no] ‘consensus ad idem' (meeting of the minds).
BY LAW
ALESSIA'S HABITUAL RESIDENCE
REMAINED IN TEXAS
It was illustrated there was most certainly a “sufficient degree of continuity” that continued to exist for this family at their habitual residence in the United States – 'despite their temporary absence.' Everything about this family was left at home in Texas and everything about their ‘habitual mode of life’ in the United States continued to persist and remained consistent. The Department of State confirmed that Simmone herself continued Alessia's medical benefits FIVE DAYS BEFORE THEY LEFT FOR VACATION. Therefore, Alessia's jurisdiction remains in Texas and she should have been returned home under England's own Law - their 'Doctrine of Precedent.'
See England's law on Habitual Residence.
1) Bart & Simmone moved to Dallas the end of April 2008 and Alessia was born in Texas on November 13, 2008. On September 26, 2009, Bart, Simmone, and Alessia (then just 10 months old) left for yet one of several vacations the couple had taken to England to 'visit' Simmone’s family...
All highlited links are Active:
2) They purchased 'ROUND-TRIP' tickets (just as they always had)
3) Enterprise Rent-a-Car submitted evidence that the couple approached the branch to "inquire on rental prices for their vacation to England."
4) Alessia's clinic submitted evidence on Alessia's behalf:
Simmone had 'carefully-coordinated' a doctor’s appointment for Alessia the week after they were to return from vacation. The clinic submitted a second statement that ‘neither party requested copies of Alessia’s medical records’ – an obvious action of ANY family moving to another city… let alone another country!
5) A Branch Manger of Starbucks submitted an AFFIDAVIT on Alessia's behalf. Pre & post Alessia’s birth, Simmone had taken daily walks to a local Starbucks near the family home in Texas and subsequently made friends with the local staff. Simmone told the Manager and several of the Baristas that she was "homesick and vacationing with Bart to see her family but would be returning home before Christmas.” One of the Baristas happened to be from England and subsequently formed a significant bond with Simmone...
6) The English Barista also submitted an Affidavit confirming Simmone had told her "they were ‘going on vacation’ and would be returning in December."
7) Store manager for ‘Lone Star Baby and Kids’ submitted evidence that the parties hoped to purchase a stroller accessory "before leaving on their vacation", "but the accessory was back ordered and would be held for them when they returned ‘from their vacation’."
8) Managing Director of a New York Recruiting Firm submitted evidence on behalf of Alessia that Bart had told the firm he would be “vacationing to see family in England and continued to pursue jobs while he was on vacation.” Bart continued to pay a $35 per month subscription to a ‘paid’ search firm for jobs in the United States – while the family was on vacation. Bart continued looking for jobs in the U.S the entire time they were on vacation in England.
9) There was no 'going -away' party for Bart, Simmone & Alessia
10) Bart never filed for a change-of address
11) Bart never applied for a visa to the UK (he was always a visitor)
12) However; it was later discovered Simmone ordered a "British"
Passport behind Bart's back; despite Alessia (at only a few weeks old)
already having a U.S. Passport.
THE FAMILY LEFT EVERYTHING BEHIND
Photographed evidence submitted to the U.S. Department of State confirmed the family left EVERYTHING they own at home in Texas. All of their clothing and personal items were left behind. On the evidence, all of Simmone’s designer clothes, a fur coat, shoes, purses, belts, sweaters, robes, jewelry, toiletries, medication, skincare, pregnancy photo albums, family wall-photos, business invoices, company files, and ‘even her laptop’ were all left behind. Not only did Simmone leave all of HER things behind, but Bart left all of HIS items behind. On the evidence, all of Bart’s business suits, dress shirts, cufflinks, casual clothing, shoes, sweaters, coats, ski-ware, workout clothing, artwork, religious & personal items were leftin Texas; as were all of Alessia’s recent gifts, her favorite toys and the “hand-sewn” bedding Alessia’s grandmother had just made for her crib, along with a Jewish hand-made children’s‘mezuzah’ that Alessia’s grandparents special-ordered from Israel for her nursery. All of these items were left at home in Texas as part of a cruel & calculated plan that began with a phony engagement, followed by a planned-pregnancy and a successful plot to secure Bart’s consent to remove Alessia from the United States and then terminate their relationship once Alessia was out of the country. In fact, by her own testimony in the Hague Court Simmone confirmed in saying:
" I never planned to marry Bart."
"Critical" documents and emails were recovered AFTER the Hague proceedings that further confirmed Simmone's conspiracy and fraud upon the court, but Bart was refused "permission" to appeal or even adduce any evidence to prove the fraud. One such email sent by Simmone to her stepfather illustrated their intent to commit perjury in her Affidavit. Simmone specifically emailed: “Bits and pieces about never getting married aren’t true, but I guess Bart will never be able to prove it, should I ask Peter (Peter Martin her UK attorney) to take it out, or leave it in?”
The stepfather immediately replied:
“DELETE THIS EMAIL.”
ANOTHER RABBI SUBMITTED CRITICAL EVIDENCE
* In addition to the Police evidence mailed (directly) to the British Court and U.S. Department of State, another NY Rabbi submitted evidence on behalf of Alessia regarding the discovery of Simmone's spurious plans (and motive) for returning to England.
All of this impugned evidence unequivocally predicated that Simmone's subjective intentions were [never] shared in line with Alessia’s Father and that her non-disclosure of what would happen to Bart once she was able to secure Alessia's removal from the United States was insidious and down-right cruel.
1) How could they have had 'shared' intentions …
if Simmone's intentions were never shared?
2) and... IF the parties really had shared intentions...
why was Simmone's deception going to be necessary?
The foreign Judge arbitrarily failed to carefully examine the evidence and inconsistencies in Simmone's evidence. Upon closer review, it becomes self-evident that the foreign judge failed to discard all of the 'irrelevant' factors (the bulk of his judgment) and to instead stay focused on factors relevant to the Hague Convention; specifically, the laws of the state of Alessia's prior habitual residence pursuant to Article 3. The result led the Deputy circuit judge to form so many arbitrary & capricious opinions on 'irrelevant' issues, that he lost his independence and impartiality to the extent that the proceedings and the decision resulted in a gross mistake that was not only unfair to the Father – but more importantly to Alessia and to the integrity of the Hague Convention on Internationally Abducted Children.
8) Managing Director of a New York Recruiting Firm submitted evidence on behalf of Alessia that Bart had told the firm he would be “vacationing to see family in England and continued to pursue jobs while he was on vacation.” Bart continued to pay a $35 per month subscription to a ‘paid’ search firm for jobs in the United States – while the family was on vacation. Bart continued looking for jobs in the U.S the entire time they were on vacation in England.
9) There was no 'going -away' party for Bart, Simmone & Alessia
10) Bart never filed for a change-of address
11) Bart never applied for a visa to the UK (he was always a visitor)
12) However; it was later discovered Simmone ordered a "British"
Passport behind Bart's back; despite Alessia (at only a few weeks old)
already having a U.S. Passport.
THE FAMILY LEFT EVERYTHING BEHIND
Photographed evidence submitted to the U.S. Department of State confirmed the family left EVERYTHING they own at home in Texas. All of their clothing and personal items were left behind. On the evidence, all of Simmone’s designer clothes, a fur coat, shoes, purses, belts, sweaters, robes, jewelry, toiletries, medication, skincare, pregnancy photo albums, family wall-photos, business invoices, company files, and ‘even her laptop’ were all left behind. Not only did Simmone leave all of HER things behind, but Bart left all of HIS items behind. On the evidence, all of Bart’s business suits, dress shirts, cufflinks, casual clothing, shoes, sweaters, coats, ski-ware, workout clothing, artwork, religious & personal items were leftin Texas; as were all of Alessia’s recent gifts, her favorite toys and the “hand-sewn” bedding Alessia’s grandmother had just made for her crib, along with a Jewish hand-made children’s‘mezuzah’ that Alessia’s grandparents special-ordered from Israel for her nursery. All of these items were left at home in Texas as part of a cruel & calculated plan that began with a phony engagement, followed by a planned-pregnancy and a successful plot to secure Bart’s consent to remove Alessia from the United States and then terminate their relationship once Alessia was out of the country. In fact, by her own testimony in the Hague Court Simmone confirmed in saying:
" I never planned to marry Bart."
"Critical" documents and emails were recovered AFTER the Hague proceedings that further confirmed Simmone's conspiracy and fraud upon the court, but Bart was refused "permission" to appeal or even adduce any evidence to prove the fraud. One such email sent by Simmone to her stepfather illustrated their intent to commit perjury in her Affidavit. Simmone specifically emailed: “Bits and pieces about never getting married aren’t true, but I guess Bart will never be able to prove it, should I ask Peter (Peter Martin her UK attorney) to take it out, or leave it in?”
The stepfather immediately replied:
“DELETE THIS EMAIL.”
ANOTHER RABBI SUBMITTED CRITICAL EVIDENCE
* In addition to the Police evidence mailed (directly) to the British Court and U.S. Department of State, another NY Rabbi submitted evidence on behalf of Alessia regarding the discovery of Simmone's spurious plans (and motive) for returning to England.
All of this impugned evidence unequivocally predicated that Simmone's subjective intentions were [never] shared in line with Alessia’s Father and that her non-disclosure of what would happen to Bart once she was able to secure Alessia's removal from the United States was insidious and down-right cruel.
1) How could they have had 'shared' intentions …
if Simmone's intentions were never shared?
2) and... IF the parties really had shared intentions...
why was Simmone's deception going to be necessary?
The foreign Judge arbitrarily failed to carefully examine the evidence and inconsistencies in Simmone's evidence. Upon closer review, it becomes self-evident that the foreign judge failed to discard all of the 'irrelevant' factors (the bulk of his judgment) and to instead stay focused on factors relevant to the Hague Convention; specifically, the laws of the state of Alessia's prior habitual residence pursuant to Article 3. The result led the Deputy circuit judge to form so many arbitrary & capricious opinions on 'irrelevant' issues, that he lost his independence and impartiality to the extent that the proceedings and the decision resulted in a gross mistake that was not only unfair to the Father – but more importantly to Alessia and to the integrity of the Hague Convention on Internationally Abducted Children.
BREACH OF DUE PROCESS & NATURAL JUSTICE
To allow this foreign judgment to stand would not only fall contrary to the purpose & objective of the Hague Convention, it would fall contrary to the interest of justice and Due Process for a 'fair & impartial' trial.
WE NEED YOUR VOICE
To allow this foreign judgment to stand would not only fall contrary to the purpose & objective of the Hague Convention, it would fall contrary to the interest of justice and Due Process for a 'fair & impartial' trial.
WE NEED YOUR VOICE
BREACH OF HAGUE CONVENTION ARTICLES
3, 5, 14 & 15
THREE LETTERS OF LAW were submitted pursuant to Arts 3, 14, & 15": (a) Texas Senator Florence Shapiro, Texas Senator Jane Nelson and Texas House Representative Jerry Madden: (individually) submitted evidence directly appealing to the British Court; asserting the laws of Alessia’s habitual residence "as well as those that were breached by Simmone while she was still habitually resident in Texas."
(b) These written declarations to the foreign Court corroborated the evidence from the U.S. Department of State and the U.S. Department of Health & Human Services confirming: "Simmone had TWICE '(under penalty of perjury)' legally-reasserted their habitual residence in Texas; once in June and again in September, a mere FIVE DAYS before they departed the United States."
(c) Their declarations illustrated each of the laws of the state of Alessia's prior habitual residence pursuant to both Article 3 of the Hague Convention and Texas Family Code's implementation of the UCCJEA; asserting for benefit of the Hague Court that under State & Federal law, "Alessia's 'home-state jurisdiction WAS AND IS the United States" and that 'temporary' absences are part of the period."
(d) PROTEST LETTERS of concern were written and submitted by the U.S. Department of State (the U.S. Central Authority) as well as by the Lord Chancellor’s Department (the UK Central Authority) and by the Chairman of the Global Missing Children’s Fund, confirming: "CRITICAL evidence to establish Alessia’s abduction was attached to the father’s Application pursuant to Article 30 of the Hague Convention and therefore should have been admitted.” The Department of State 're-attached' the critical evidence and (again) re-submitted it to the UK Central Authority, but to no avail.
(e) The Global Missing Children Fund (GMCF) wrote directly to the President of England's Family Division, affirming that their organization: "has first-hand knowledge there is in fact CRITICAL evidence the UK would be suppressing which is relevant to his case of supporting that the "habitual residence" status of the child is and always has been the U.S."
3, 5, 14 & 15
THREE LETTERS OF LAW were submitted pursuant to Arts 3, 14, & 15": (a) Texas Senator Florence Shapiro, Texas Senator Jane Nelson and Texas House Representative Jerry Madden: (individually) submitted evidence directly appealing to the British Court; asserting the laws of Alessia’s habitual residence "as well as those that were breached by Simmone while she was still habitually resident in Texas."
(b) These written declarations to the foreign Court corroborated the evidence from the U.S. Department of State and the U.S. Department of Health & Human Services confirming: "Simmone had TWICE '(under penalty of perjury)' legally-reasserted their habitual residence in Texas; once in June and again in September, a mere FIVE DAYS before they departed the United States."
(c) Their declarations illustrated each of the laws of the state of Alessia's prior habitual residence pursuant to both Article 3 of the Hague Convention and Texas Family Code's implementation of the UCCJEA; asserting for benefit of the Hague Court that under State & Federal law, "Alessia's 'home-state jurisdiction WAS AND IS the United States" and that 'temporary' absences are part of the period."
(d) PROTEST LETTERS of concern were written and submitted by the U.S. Department of State (the U.S. Central Authority) as well as by the Lord Chancellor’s Department (the UK Central Authority) and by the Chairman of the Global Missing Children’s Fund, confirming: "CRITICAL evidence to establish Alessia’s abduction was attached to the father’s Application pursuant to Article 30 of the Hague Convention and therefore should have been admitted.” The Department of State 're-attached' the critical evidence and (again) re-submitted it to the UK Central Authority, but to no avail.
(e) The Global Missing Children Fund (GMCF) wrote directly to the President of England's Family Division, affirming that their organization: "has first-hand knowledge there is in fact CRITICAL evidence the UK would be suppressing which is relevant to his case of supporting that the "habitual residence" status of the child is and always has been the U.S."
* The UK Foreign Judgment made no mention of Police documents submitted to the foreign court, or to the Laws of Alessia's prior habitual residence put forth by the Senator and member of the House of Representatives... nor did it even mention or reference their letters. The foreign judge failed to properly consider the laws of Alessia's prior habitual residence obliged by Articles 3, 14, and 15 of the Hague Convention, or to even mention them ANYWHERE in the foreign judgment...
" The United States will [NOT] recognize a foreign judgment that fails to mention or properly consider the laws of the child's prior habitual residence pursuant to Art 3 and or fails to observe the purpose and objectives of the Convention."
* In the United States decision of Hague Abduction case re Carrascosa V. McGuire; Case 2:07-cv-00355, a Spanish foreign judgment was refused recognitionbecause it never mentioned the applicable New Jersey Child Custody Jurisdiction and Enforcement Act [UCCJEA].” The following link confirms the U.S. Court ruled that Spain's departure from jurisdiction conferred by the Hague Convention "violated the principals of international comity by failing even to attempt to apply New Jersey law." All three declarations are listed below
" The United States will [NOT] recognize a foreign judgment that fails to mention or properly consider the laws of the child's prior habitual residence pursuant to Art 3 and or fails to observe the purpose and objectives of the Convention."
* In the United States decision of Hague Abduction case re Carrascosa V. McGuire; Case 2:07-cv-00355, a Spanish foreign judgment was refused recognitionbecause it never mentioned the applicable New Jersey Child Custody Jurisdiction and Enforcement Act [UCCJEA].” The following link confirms the U.S. Court ruled that Spain's departure from jurisdiction conferred by the Hague Convention "violated the principals of international comity by failing even to attempt to apply New Jersey law." All three declarations are listed below
Senator Shapiro: "I respectfully request that you take into consideration Texas law when deciding this case. Of particular importance are those laws that were breached, because their breach occured while Alessia was still a habitual resident of the State of Texas. Aditionally, a holiday would not constitute the loss of habitual residence in Texas. I am confident that your court will make every effort to establish a fair verdict given the intent of the Hague Convention."
- Senator Florence Shapiro
- Senator Florence Shapiro
Declarations of TWO Senators
& a Texas House Representative
WE NEED YOUR VOICE
THE LAWS OF ALESSIA'S HABITUAL RESIDENCE
FEDERAL LAW: 28 USCS § 1738A (b)(4):
(b)(4) "Home State" means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of "temporary absence" of any of such persons are counted as part of the six-month period."
TEXAS FAMILY CODE §152.102 (7):
" Texas has jurisdiction if it is the Home-State of the child the date proceedings commenced or [was] Home-State within 6 mos of the proceedings’ commencement and the child’s parent, or person acting as parent, continues to live in the State’ (even after child has been removed); “Periods of temporary absence" from home-state are counted as part of six-month period.”
TEXAS FAMILY CODE §152.105(b)(c)
The UCCJEA also makes it adamantly clear that decisions regarding children which are made in a foreign country are only given recognition if they are made "under factual circumstances and in conformity with the UCCJEA"... "A court of this state need [not] apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights."
FEDERAL LAW: 28 USCS § 1738A (b)(4):
(b)(4) "Home State" means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of "temporary absence" of any of such persons are counted as part of the six-month period."
TEXAS FAMILY CODE §152.102 (7):
" Texas has jurisdiction if it is the Home-State of the child the date proceedings commenced or [was] Home-State within 6 mos of the proceedings’ commencement and the child’s parent, or person acting as parent, continues to live in the State’ (even after child has been removed); “Periods of temporary absence" from home-state are counted as part of six-month period.”
TEXAS FAMILY CODE §152.105(b)(c)
The UCCJEA also makes it adamantly clear that decisions regarding children which are made in a foreign country are only given recognition if they are made "under factual circumstances and in conformity with the UCCJEA"... "A court of this state need [not] apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights."
FRAUD TO THE UK BORDER AGENCY
On September 26, 2009, the Parties left for vacation to England, but Bart was refused entry and returned home.
Evidence authenticated by Texas Police from Simmone's 'abandoned' laptop and investigations of the U.S. Department of State’s Bureau of Diplomatic Security, corroborate Simmone's continued fraud and misrepresetation on the family's arrival into Heathrow.
Specifically, Simmone: (1) lied to the UK Border Agent about her employment and living status, causing Bart to be denied entry and returned to the United States; (2) Simmone did the same to England’s Legal Aid Commission, also declaring she was unemployed and living on public funds in order to secure Legal Aid; and ultimately (3) Simmone's falsely declared during the Hague proceedings that she did [not] and could [not] work while living in the United States as would thus be in the same prediciment as she was in England - "requiring public funds & mortgage assistence" from Her Majesty's public purse.
Specifically, Simmone: (1) lied to the UK Border Agent about her employment and living status, causing Bart to be denied entry and returned to the United States; (2) Simmone did the same to England’s Legal Aid Commission, also declaring she was unemployed and living on public funds in order to secure Legal Aid; and ultimately (3) Simmone's falsely declared during the Hague proceedings that she did [not] and could [not] work while living in the United States as would thus be in the same prediciment as she was in England - "requiring public funds & mortgage assistence" from Her Majesty's public purse.
16) Bart's Denied Entry into England
Upon entry to Heathrow, the Border Agent asked Bart standard questions about "where he lived, where he worked, and what was the purpose of his visit?” Bart answered truthfully that he, Simmone and Alessia live in Texas and he just been laid off during the height of the global recession, and therefore he and his family had decided to use the opportunity to spend a little more time to tour England and visit his fiancé’s British family.
The Border Agent asked Bart if Simmone was employed. Bart again answered truthfully that Simmone was indeed 'self-employed', owned her own market-research company and 'worked daily from their Texas home.' The Border Agent asked Bart to sit in the waiting area while he questioned Simmone. Simmone however told the Border Agent that she and Alessia 'live in Northwest London', that she ‘hadn’t worked in several years,’ and that Bart had moved to England to live with them. The Border Agent then asked Simmone: ‘how can you possibly afford a flat in Northwest London, with a baby and no income?!?” Simmone told the Border Agent that she “relied on public funds and mortgage assistance.” Unfortunately, the Border Agent believed her mendacity over Bart's truth, denied Bart entry into the UK and Border police escorted him to the next plane bound to New York.
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If the UK Border Agent had simply checked Simmone's Passport that morning, it would have clearly illustrated that Simmone had been living in the United States and only made 'short' trips to England to visit her family...
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AND... had the UK deputy judge looked at Simmone's passport, it too would have confirmed both the amount of time and duration of Simmone's residence in the United States and Alessia would be home with her father today.
WE NEED YOUR VOICE |
Police evidence from Simmone’s left-behind laptop confirms:
(1) Simmone worked daily from the day she arrived in the United States and continued to do so up through the Hague proceedings; (2) that she conducted her work under three ‘alias’ emails; (3) that she has over £50,000 in the bank; (4) that she would leave things behind to mislead Bart about their vacation.
Additional evidence submitted to the U.S. Department of State confirmed:" (1) Simmone also has “well over £100,000 of equity in her London flat and had been receiving rental income the entire time she lived in the United States in addition to income from her business;” (2) Bart and Simmone had taken several trips in the United States; including trips to Disney World, a Spa Resort in Phoenix, Los Angeles, Austin and San Antonio, not to mention multiple trips to and from England; (3) further evidence showed that the family originally made plans to go to Paris for Alessia's first birthday, but flew to Dusseldorf Germany instead to visit friends;(4) Fresh evidence also confirmed Simmone travelled "as a regular patron" to the Champney’s for Spa treatments in the English countryside for years; (5) she had recently taken a trip to a wine school and had spent £400 on Botox treatments." Clearly counterfactual to statements presented by Simmone and believed by the foreign judge.
A Bias and Partial Judgment
1)Despite the preponderance of evidence documenting Simmone's fraudulent statements requiring 'indigent-care' public benefits in the UK and the mountain of evidence illustrating their travel history throughout the United States and abroad: the foreign judge made so many arbitrary conclusions that were demonstrably contrary to the weight of the evidence, it becomes increasingly challenging not to question that his decision making process was indeed made with extreme bias and partiality towards the American father. Especially when the judge arbitrarily accused Bart in the foreign judgment of being a "fantasist" and that Bart's implications of "going to Paris for a weekend and traveling to see England & Scotland appeared not to be founded in reality" ... "The proposition that the parties were able to ‘contemplate’ some kind of extended holiday on the resources [Simmone] indicated is 'close to being absurd."
2) ‘On evidence ignored by the judge: (a) It was SIMMONE who sent Bart an email confirmng their plans to vacation "IN PARIS" and that going to Dusseldorf, Germany instead would be more cost effective; (b) SIMMONE also emailed a friend in the UK that she "had promised Bart they would'TOUR ENGLAND!" This beggers the question, why would BART be considered an absurd fantasist for referring to written statements that SIMMONE made which unequivocally corroborated Bart's testimony - if for no other reason than to illustrate a bias and partial judgment that was made counterfactual to the preponderance of evidence?
3) The UK attorneys are bound by professional duty to "Protect Her Majesty’s Public Purse." After the trial, the solicitors therefore submitted all of the above evidence relating to Simmone's 'self-employment' and finacial worth to the Legal Aid's 'Special Investigations Unit' who subsequently confirmed Simmone's fraud investigation.
Fraud Against the United States
Simmone's perjury and fraud against the United States was illustrated by the U.S. Department of Health & Human Services, the two Senator's and by Texas Representative Jerry Madden's declarations; specifically in regard to Simmone's statements made under oath during the Hague proceedings where she adamantly delcared that she "never considered the United States her home, and that she and Alessia would be returning to England in a matter of months."
Senator Jane Nelson, Chairman of the Senate Committee for Texas Health & Human Services provided evidence to assure the British High Court that “’residency’ is indeed a critical requirement for Texas Health Services and that both ‘STATE & FEDERAL’ law are very clear on this point and that fraud is investigated when the System is abused” :
1) “People who live in Texas meet residence requirements [if] they are [living] in Texas..." 2) “with intentions to [remain] permanently, or for an [indefinite] period of time...” 3) “People who live in Texas for “temporary purposes” do [not] meet residency requirements."
Senator Shapiro’s and Representative Madden’s letters also respectfully addressed the jurisdictional laws regarding Alessia’s habitual residence and asked the High Court to give special consideration to the factors which “defined Alessia’s removal as wrongful” (within terms of Article 3); specifically because “these laws were breached while Alessia was still habitually resident in Texas.”
England's Hague proceedings were grossly 'misled'. The foreign judgment had been procured by fraud and Bart was subsequently refused the basic right of Due-Process and Natural Justice to Appeal or even adduce any evidence to confirm fraud; and Bart was ultimately denied his request for permission to appeal to the UK Supreme Court.
Therefore, the foreign judgment should be vitiated and considered non-recognizable by both U.S. and International Law.
For 2 ½ years, Bart Hermer has fought a desperate and expensive legal battle to have Alessia returned home. Any and all attempts to see Alessia has been refused by Simmone. The U.S. Department of State was also recently denied a ‘Welfare-Whereabouts’check on Alessia by Simmone. The Department of State coordinated efforts with the U.S. Embassy in London and with local authorities there, but Simmone refused to allow the State Department to see Alessia. Further evidence confirms Simone has removed Bart’s surname from Alessia and refers to Alessia as “the stepfather’s baby.”
Bart hasn’t seen or heard from Alessia for 1 ½ years.
WE NEED YOUR VOICE!
(1) Simmone worked daily from the day she arrived in the United States and continued to do so up through the Hague proceedings; (2) that she conducted her work under three ‘alias’ emails; (3) that she has over £50,000 in the bank; (4) that she would leave things behind to mislead Bart about their vacation.
Additional evidence submitted to the U.S. Department of State confirmed:" (1) Simmone also has “well over £100,000 of equity in her London flat and had been receiving rental income the entire time she lived in the United States in addition to income from her business;” (2) Bart and Simmone had taken several trips in the United States; including trips to Disney World, a Spa Resort in Phoenix, Los Angeles, Austin and San Antonio, not to mention multiple trips to and from England; (3) further evidence showed that the family originally made plans to go to Paris for Alessia's first birthday, but flew to Dusseldorf Germany instead to visit friends;(4) Fresh evidence also confirmed Simmone travelled "as a regular patron" to the Champney’s for Spa treatments in the English countryside for years; (5) she had recently taken a trip to a wine school and had spent £400 on Botox treatments." Clearly counterfactual to statements presented by Simmone and believed by the foreign judge.
A Bias and Partial Judgment
1)Despite the preponderance of evidence documenting Simmone's fraudulent statements requiring 'indigent-care' public benefits in the UK and the mountain of evidence illustrating their travel history throughout the United States and abroad: the foreign judge made so many arbitrary conclusions that were demonstrably contrary to the weight of the evidence, it becomes increasingly challenging not to question that his decision making process was indeed made with extreme bias and partiality towards the American father. Especially when the judge arbitrarily accused Bart in the foreign judgment of being a "fantasist" and that Bart's implications of "going to Paris for a weekend and traveling to see England & Scotland appeared not to be founded in reality" ... "The proposition that the parties were able to ‘contemplate’ some kind of extended holiday on the resources [Simmone] indicated is 'close to being absurd."
2) ‘On evidence ignored by the judge: (a) It was SIMMONE who sent Bart an email confirmng their plans to vacation "IN PARIS" and that going to Dusseldorf, Germany instead would be more cost effective; (b) SIMMONE also emailed a friend in the UK that she "had promised Bart they would'TOUR ENGLAND!" This beggers the question, why would BART be considered an absurd fantasist for referring to written statements that SIMMONE made which unequivocally corroborated Bart's testimony - if for no other reason than to illustrate a bias and partial judgment that was made counterfactual to the preponderance of evidence?
3) The UK attorneys are bound by professional duty to "Protect Her Majesty’s Public Purse." After the trial, the solicitors therefore submitted all of the above evidence relating to Simmone's 'self-employment' and finacial worth to the Legal Aid's 'Special Investigations Unit' who subsequently confirmed Simmone's fraud investigation.
Fraud Against the United States
Simmone's perjury and fraud against the United States was illustrated by the U.S. Department of Health & Human Services, the two Senator's and by Texas Representative Jerry Madden's declarations; specifically in regard to Simmone's statements made under oath during the Hague proceedings where she adamantly delcared that she "never considered the United States her home, and that she and Alessia would be returning to England in a matter of months."
Senator Jane Nelson, Chairman of the Senate Committee for Texas Health & Human Services provided evidence to assure the British High Court that “’residency’ is indeed a critical requirement for Texas Health Services and that both ‘STATE & FEDERAL’ law are very clear on this point and that fraud is investigated when the System is abused” :
1) “People who live in Texas meet residence requirements [if] they are [living] in Texas..." 2) “with intentions to [remain] permanently, or for an [indefinite] period of time...” 3) “People who live in Texas for “temporary purposes” do [not] meet residency requirements."
Senator Shapiro’s and Representative Madden’s letters also respectfully addressed the jurisdictional laws regarding Alessia’s habitual residence and asked the High Court to give special consideration to the factors which “defined Alessia’s removal as wrongful” (within terms of Article 3); specifically because “these laws were breached while Alessia was still habitually resident in Texas.”
England's Hague proceedings were grossly 'misled'. The foreign judgment had been procured by fraud and Bart was subsequently refused the basic right of Due-Process and Natural Justice to Appeal or even adduce any evidence to confirm fraud; and Bart was ultimately denied his request for permission to appeal to the UK Supreme Court.
Therefore, the foreign judgment should be vitiated and considered non-recognizable by both U.S. and International Law.
For 2 ½ years, Bart Hermer has fought a desperate and expensive legal battle to have Alessia returned home. Any and all attempts to see Alessia has been refused by Simmone. The U.S. Department of State was also recently denied a ‘Welfare-Whereabouts’check on Alessia by Simmone. The Department of State coordinated efforts with the U.S. Embassy in London and with local authorities there, but Simmone refused to allow the State Department to see Alessia. Further evidence confirms Simone has removed Bart’s surname from Alessia and refers to Alessia as “the stepfather’s baby.”
Bart hasn’t seen or heard from Alessia for 1 ½ years.
WE NEED YOUR VOICE!
ALESSIA WAS BORN NOV 13, 2008
Why UK is legally obliged to return Alessia: (and should have)
The UK 'Doctrine of Precedent'
“like cases are to be tried alike”
To understand the point of UK ‘precedent’: we refer to a recent case heard by Sir Nicholas Wall, President of the UK Family Division in Re D (Children) [2010] EWCA Civ 50. We have chosen this case because the applicant, like Bart, was also a 'litigant in person' and appealing a decision of the lower court. In the first part of his judgment Sir Wall explains, for benefit of the applicant, the ‘Doctrine of Precedent’ and the grounds on which permission to appeal may be granted...
Lord Justice Wall at Para4 et seq [emphasis added]:
"4. There are, of course, only two bases upon which permission to appeal can be granted. They are both contained in Civil Procedure Rule (CPR) 52.3(6), which reads as follows’ - Permission to appeal may be given only where: ‘(a) the court consider that the appeal would have a real prospect of success; [or]… (b) there is some other [compelling] reason why the appeal should be heard."
"5. "I propose to address each of these headings in turn. Before I do so, it is necessary; (1) I explain to the applicant (who is not a lawyer) one feature of the English Legal System which is relevant to [both] limbs of the rule, [namely] the 'Doctrine of Precedent'; and (2) that I explain how the Doctrine of Precedent impacts on the present case."
"6. ‘The Doctrine of Precedent’ means that judges at first instances […] are bound by and thus obliged to follow decisions of the Court of Appeal and the House of Lords (now, of course, the Supreme Court) relating to the same subject matter as the case which the first instance judge is hearing. Furthermore, the Court of Appeal is [itself] bound by its own previous decisions."
"7. There is also authority for the proposition that Circuit Judges […] are bound by the decisions of High Court Judges:- see the decision of the Court of appeal in Gloucestershire County Council v P. and others [2000] Fam 1 at 3B-C, 8C-D and 12G.’
Lord Justice Wall emphasises again at Para 9:
"9. ‘However, where a superior court – be it the House of Lords [or] the Court of Appeal has either stated a [principle] or given guidelines to be followed by judges hearing particular categories of cases, the judge at first instance [has to follow] that principle or those guidelines[.]"
The UK 'Doctrine of Precedent'
“like cases are to be tried alike”
To understand the point of UK ‘precedent’: we refer to a recent case heard by Sir Nicholas Wall, President of the UK Family Division in Re D (Children) [2010] EWCA Civ 50. We have chosen this case because the applicant, like Bart, was also a 'litigant in person' and appealing a decision of the lower court. In the first part of his judgment Sir Wall explains, for benefit of the applicant, the ‘Doctrine of Precedent’ and the grounds on which permission to appeal may be granted...
Lord Justice Wall at Para4 et seq [emphasis added]:
"4. There are, of course, only two bases upon which permission to appeal can be granted. They are both contained in Civil Procedure Rule (CPR) 52.3(6), which reads as follows’ - Permission to appeal may be given only where: ‘(a) the court consider that the appeal would have a real prospect of success; [or]… (b) there is some other [compelling] reason why the appeal should be heard."
"5. "I propose to address each of these headings in turn. Before I do so, it is necessary; (1) I explain to the applicant (who is not a lawyer) one feature of the English Legal System which is relevant to [both] limbs of the rule, [namely] the 'Doctrine of Precedent'; and (2) that I explain how the Doctrine of Precedent impacts on the present case."
"6. ‘The Doctrine of Precedent’ means that judges at first instances […] are bound by and thus obliged to follow decisions of the Court of Appeal and the House of Lords (now, of course, the Supreme Court) relating to the same subject matter as the case which the first instance judge is hearing. Furthermore, the Court of Appeal is [itself] bound by its own previous decisions."
"7. There is also authority for the proposition that Circuit Judges […] are bound by the decisions of High Court Judges:- see the decision of the Court of appeal in Gloucestershire County Council v P. and others [2000] Fam 1 at 3B-C, 8C-D and 12G.’
Lord Justice Wall emphasises again at Para 9:
"9. ‘However, where a superior court – be it the House of Lords [or] the Court of Appeal has either stated a [principle] or given guidelines to be followed by judges hearing particular categories of cases, the judge at first instance [has to follow] that principle or those guidelines[.]"
ENGLAND DEFINES THE PURPOSE OF IT'S COURT OF APPEAL, AND ITS POSITION ON FRAUD: In balancing UK cases below with facts coorborrated by the Authorities of the United States, Alessia should have been returned pursuant to the Hague Convention, AND by England's well-established prior court decisions; alternatively, Bart most certainly should have been granted the right to appeal...
1.) 'White Book Service' 2001; paragraph 52.0.3: and Para 26 in TAYLOR v LAWRENCE [2002] EWCA Civ 90: [COURT OF APPEAL]
1.) 'White Book Service' 2001; paragraph 52.0.3: and Para 26 in TAYLOR v LAWRENCE [2002] EWCA Civ 90: [COURT OF APPEAL]
"26. […] the Court of Appeal was established with two principal objectives. The first is a private objective of correcting wrong decisions so as to ensure justice between litigants. The second a public objective, to ensure public confidence in the administration of justice – not only by remedying [wrong] decisions, but also by clarifying the law, developing the law, 'and setting precedents'."
2.) House of Lords: BOODOOSINGH V RAMNARCE, [Court of Appeal] - Privy Council, March 08, 2005, [2005] UKPC 9; Lord Brown of Eaton-under-Heywood cited at Para 18:
"There is no doubt that a judgment obtained by fraud can be set aside, either by order made in a fresh action brought in fraud, to impeach it, or on appeal to the Court of Appeal by adducing fresh evidence sufficient to establish the fraud."
"There is no doubt that a judgment obtained by fraud can be set aside, either by order made in a fresh action brought in fraud, to impeach it, or on appeal to the Court of Appeal by adducing fresh evidence sufficient to establish the fraud."
3.) Giving leading judgment on Fraud in the UK
Court of Appeal, Holroyd Pearce LJ said this at p379:
“Where a party deliberately misleads the court in a material matter, and that deception has probably tipped the scale in his favour (or even, as I think, where it may reasonably have done so), it would be wrong to allow him to retain the judgment as unfairly procured. Finis litium is a desirable object, but it must not be sought by so great a sacrifice of justice which is and must remain the supreme object. Moreover, to allow the victor to keep the spoils so unworthily obtained would be an encouragement to such behaviour, and do even greater harm than the multiplication of trials."
“Where a party deliberately misleads the court in a material matter, and that deception has probably tipped the scale in his favour (or even, as I think, where it may reasonably have done so), it would be wrong to allow him to retain the judgment as unfairly procured. Finis litium is a desirable object, but it must not be sought by so great a sacrifice of justice which is and must remain the supreme object. Moreover, to allow the victor to keep the spoils so unworthily obtained would be an encouragement to such behaviour, and do even greater harm than the multiplication of trials."
U.S. Department of State's Evidence
corroborated by Texas Police, Senator Shapiro & Representative Madden, various retailer's, Alessia's Clinic, round-trip tickets and the fact that all of their clothes and personal items were left behind; and by Hallmark cards Simmone had just given to Bart before their vacation saying; "I can't wait to be your wife" and referring to him as her "Husband"... collectively confirm Simmone not only misled the Hague court during proceedings, she misled Bart about her true intentions regarding the status of their relationship and purpose of their vacation. Simmone stated in the foreign court that she "never planned to marry Bart."
If her statement were true, WHY IN THE WORLD would Bart have agreed to move to a foreign country (in his 40's) knowing that without marrying Simmone, he cannot live or work in the United Kingdom, would soon will be without a place to live, and would be deported at any time? Its completely nonsensical.
* Even if Bart & Simone actually had packed everything with the intention to move to England: under England's 'Doctrine of Precedent'... the Hague court would still have been obliged to return Alessia; because Simmone grossly misled Bart about the status of their relationship, her true intentions about their trip to England, and her subjective intentions of what she would do with Bart and their relationship once she was able to secure Alessia's removal from the United States:
I. APRIL 2008: B v D 2008 EWHC 1246 (Fam):
Paras 23 & 1. Baron J:
• “1.… Any consent by the mother beyond consent to short-term education had been obtained on the false premise that the marriage had a long-term future and had been vitiated because of the father’s failure to make full disclosure of his underlying motivation.
• “23…I am [clear] that if he had told her the [truth] about his ‘view of the marriage’ she would [never] have agreed to the children staying in Portugal after the August holiday. Whatever consent was drawn from her during this period, it was therefore obtained on a false premise.”
II. Re L (Abduction:) [2007] EWHC 2181 (Fam) [2008]
1 F.L.R. 914. Bodey J:
“Where a removing party knows and assumes that the formerly consenting party would [not] make a choice to continue at the time of the actual removal if he or she knew the [full] facts, it is my view that the consent defence fails even though original consent may never have been expressly withdrawn.”
III. C v H (Abduction:Consent) [2009] EWHC 2660 Family Division.March 2009: In this UK case; Munby J cited that the child’s habitual residence did [not] change within the meaning of the Convention. The Judge ruled that the actions, words, and intentions to change habitual residence must first be: “evaluated in the context in which they had been used; “in the light of the parties’ relationship at the time;” and “in the light of their contemporary [understanding of where things stood and how things might develop]:”
IV. RE P-J (Abduction) Habitual Residence: Consent) [2009] EWCA Civ 588 [2009] 2 FLR 1051: Consent, or the lack of it, must be viewed in the context of the ‘[realities]’ of family life, or more precisely, in the context of the realities of the ‘[disintegration of family life]’;
V. Re B. (A Minor) (Abduction) [1994] 2 FLR 249, [1994] Fam Law ; Court of Appeals: UK Judge ordered the return: These rights were breached when the child was [fraudulently] taken to Wales. (LEGAL BASIS: ‘Removal [&] Retention’ - Hague Convenetion Articles 3 and 12).
VI. June 2009: P-J (Children) [2009] EWCA Civ 588:
In this UK appeal, counsel for Mother argued: (1) the President erred in law directing himself that habitual residence may still be settled, “even though it is temporary”; (2) However, Ward LJ found no fault. English Law stated as follows:
[64] “I do [not] accept the question of a possible non-return by the mother or children [….] (a) she was aware that the husband did not accept or [contemplate] that they should separate, (b) she knew that he was expecting and planning for the whole family to return in July/August 2008 and (c) that her own state of mind was one of lack of decision, retaining the hope that the marriage would still work.”
[48] “Having heard evidence of the mother and her sister, it is not in dispute that the act of removal was ‘surreptitious’ and that the immediate intentions of the mother and the arrangements for removal ‘were concealed from the father and designed to present him with a 'fait accompli’ […] "
corroborated by Texas Police, Senator Shapiro & Representative Madden, various retailer's, Alessia's Clinic, round-trip tickets and the fact that all of their clothes and personal items were left behind; and by Hallmark cards Simmone had just given to Bart before their vacation saying; "I can't wait to be your wife" and referring to him as her "Husband"... collectively confirm Simmone not only misled the Hague court during proceedings, she misled Bart about her true intentions regarding the status of their relationship and purpose of their vacation. Simmone stated in the foreign court that she "never planned to marry Bart."
If her statement were true, WHY IN THE WORLD would Bart have agreed to move to a foreign country (in his 40's) knowing that without marrying Simmone, he cannot live or work in the United Kingdom, would soon will be without a place to live, and would be deported at any time? Its completely nonsensical.
* Even if Bart & Simone actually had packed everything with the intention to move to England: under England's 'Doctrine of Precedent'... the Hague court would still have been obliged to return Alessia; because Simmone grossly misled Bart about the status of their relationship, her true intentions about their trip to England, and her subjective intentions of what she would do with Bart and their relationship once she was able to secure Alessia's removal from the United States:
I. APRIL 2008: B v D 2008 EWHC 1246 (Fam):
Paras 23 & 1. Baron J:
• “1.… Any consent by the mother beyond consent to short-term education had been obtained on the false premise that the marriage had a long-term future and had been vitiated because of the father’s failure to make full disclosure of his underlying motivation.
• “23…I am [clear] that if he had told her the [truth] about his ‘view of the marriage’ she would [never] have agreed to the children staying in Portugal after the August holiday. Whatever consent was drawn from her during this period, it was therefore obtained on a false premise.”
II. Re L (Abduction:) [2007] EWHC 2181 (Fam) [2008]
1 F.L.R. 914. Bodey J:
“Where a removing party knows and assumes that the formerly consenting party would [not] make a choice to continue at the time of the actual removal if he or she knew the [full] facts, it is my view that the consent defence fails even though original consent may never have been expressly withdrawn.”
III. C v H (Abduction:Consent) [2009] EWHC 2660 Family Division.March 2009: In this UK case; Munby J cited that the child’s habitual residence did [not] change within the meaning of the Convention. The Judge ruled that the actions, words, and intentions to change habitual residence must first be: “evaluated in the context in which they had been used; “in the light of the parties’ relationship at the time;” and “in the light of their contemporary [understanding of where things stood and how things might develop]:”
IV. RE P-J (Abduction) Habitual Residence: Consent) [2009] EWCA Civ 588 [2009] 2 FLR 1051: Consent, or the lack of it, must be viewed in the context of the ‘[realities]’ of family life, or more precisely, in the context of the realities of the ‘[disintegration of family life]’;
V. Re B. (A Minor) (Abduction) [1994] 2 FLR 249, [1994] Fam Law ; Court of Appeals: UK Judge ordered the return: These rights were breached when the child was [fraudulently] taken to Wales. (LEGAL BASIS: ‘Removal [&] Retention’ - Hague Convenetion Articles 3 and 12).
VI. June 2009: P-J (Children) [2009] EWCA Civ 588:
In this UK appeal, counsel for Mother argued: (1) the President erred in law directing himself that habitual residence may still be settled, “even though it is temporary”; (2) However, Ward LJ found no fault. English Law stated as follows:
[64] “I do [not] accept the question of a possible non-return by the mother or children [….] (a) she was aware that the husband did not accept or [contemplate] that they should separate, (b) she knew that he was expecting and planning for the whole family to return in July/August 2008 and (c) that her own state of mind was one of lack of decision, retaining the hope that the marriage would still work.”
[48] “Having heard evidence of the mother and her sister, it is not in dispute that the act of removal was ‘surreptitious’ and that the immediate intentions of the mother and the arrangements for removal ‘were concealed from the father and designed to present him with a 'fait accompli’ […] "
VII. SUPREME COURT: [MATHEWS V MATHEWS 2007 BCSC 1825]:
“[57] In the present circumstances, the evidence might be interpreted as showing a calculated decision by Ms. Mathews to withhold from Mr. Mathews her decision to leave the marriage. It might be interpreted that she did this in an effort to secure Mr. Mathews consent to the children leaving Australia. If that is so, then to exclude the evidence may result in the objects of the Convention being thwarted by subterfuge. When the prejudice worked by admitting the evidence is pitted against the possible prejudice that excluding it might cause, the result is clear in my view”. And…
“[70] “Finally, and most significantly[…] “It does not make common sense for Mr. Mathews to agree to allow his children to leave on the basis of what Ms. Mathews says the arrangement was. [By her account], he agreed to leave his native country where all of his family and friends live, travel half way around the world to a country where he has no family and no friends […]. He agreed to do this, on Ms. Mathews’ account, in the [hope] that he would be able to [get a job] and remain in the country […] “I simply do [not] accept that he would do this.”
“[57] In the present circumstances, the evidence might be interpreted as showing a calculated decision by Ms. Mathews to withhold from Mr. Mathews her decision to leave the marriage. It might be interpreted that she did this in an effort to secure Mr. Mathews consent to the children leaving Australia. If that is so, then to exclude the evidence may result in the objects of the Convention being thwarted by subterfuge. When the prejudice worked by admitting the evidence is pitted against the possible prejudice that excluding it might cause, the result is clear in my view”. And…
“[70] “Finally, and most significantly[…] “It does not make common sense for Mr. Mathews to agree to allow his children to leave on the basis of what Ms. Mathews says the arrangement was. [By her account], he agreed to leave his native country where all of his family and friends live, travel half way around the world to a country where he has no family and no friends […]. He agreed to do this, on Ms. Mathews’ account, in the [hope] that he would be able to [get a job] and remain in the country […] “I simply do [not] accept that he would do this.”
MANIPULATION OF CONVENTION ARTS 12 & 13
1) When all else fails, statistics illustrate that as a last resort, every abducting parent will try to establish that the child has now 'settled in a new environment' and to return them would allegedly cause them 'phychological harm.' Despite the Convention's ademant position that it is the abduction that is harful to their well-being, many countries will manipulate the treaty to circumvent the Convention's objectives and refuse to return the abducted children home.
2) Numerous Hague courts reject these arguments, finding it would circumvent the purpose of the Hague Convention to reward parents who wrongfully remove and retain Children:
3) Friedrich,78 F.3d 1068 (at Para 29):
“A removing parent must [not] be allowed to abduct a child and then when brought to court complain that the child 'has grown used to the surroundings to which they were abducted.' Under the logic of the Convention..."
“… it is the [abduction] that causes the pangs of their subsequent return.”
4) Walsh v. Walsh, 221 F.3d 204, 220 n.14 (1st Cir. 2000): “We disregard the arguments that grave risk of harm may be established by the mere fact that removal would unsettle the children who have now settled in the United States"… "That is an inevitable consequence of their removal.”
5) Clarke v. Clarke, 2008 WL 2217608 (E.D. Pa. May 27, 2008): In this case the Convention judge ruled: “a Mother cannot turn a nine-week visit to the United States into an almost seven month stay and then claim that the child is acclimatized in the United States so as to shift habitual residence"... “This court noted the respondent cannot take advantage of the time-lapse in which she led the petitioner to believe that she was planning on returning to Australia to claim that the children have become “acclimatized"... "it is precisely this type of behaviour that undermines the purpose of the Hague Convention.”
– the U.S. ordered the child’s return to Australia.
1) When all else fails, statistics illustrate that as a last resort, every abducting parent will try to establish that the child has now 'settled in a new environment' and to return them would allegedly cause them 'phychological harm.' Despite the Convention's ademant position that it is the abduction that is harful to their well-being, many countries will manipulate the treaty to circumvent the Convention's objectives and refuse to return the abducted children home.
2) Numerous Hague courts reject these arguments, finding it would circumvent the purpose of the Hague Convention to reward parents who wrongfully remove and retain Children:
3) Friedrich,78 F.3d 1068 (at Para 29):
“A removing parent must [not] be allowed to abduct a child and then when brought to court complain that the child 'has grown used to the surroundings to which they were abducted.' Under the logic of the Convention..."
“… it is the [abduction] that causes the pangs of their subsequent return.”
4) Walsh v. Walsh, 221 F.3d 204, 220 n.14 (1st Cir. 2000): “We disregard the arguments that grave risk of harm may be established by the mere fact that removal would unsettle the children who have now settled in the United States"… "That is an inevitable consequence of their removal.”
5) Clarke v. Clarke, 2008 WL 2217608 (E.D. Pa. May 27, 2008): In this case the Convention judge ruled: “a Mother cannot turn a nine-week visit to the United States into an almost seven month stay and then claim that the child is acclimatized in the United States so as to shift habitual residence"... “This court noted the respondent cannot take advantage of the time-lapse in which she led the petitioner to believe that she was planning on returning to Australia to claim that the children have become “acclimatized"... "it is precisely this type of behaviour that undermines the purpose of the Hague Convention.”
– the U.S. ordered the child’s return to Australia.
UK ' DOCTRINE OF PRECEDENT ' FOR THE ERRONEOUS 'ACCLIMATIZATION' CLAIMS OF ABDUCTED CHILDREN
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Fortunately for Alessia and her father: The UK's 'Doctrine of Precedent' in both the UK Court of Appeals and the House of Lords holds the same principles to protect her:
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MY LAST NAP WITH DAD
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1) Evans v. Evans (U.K. 1988) [Court of Appeals] (Civ. Div.) No. AD 1716 of 1988: The Father asks the Court to consider this UK case in the Court of Appeals, wherein the mere fact that a UK decision ‘might’ allow the misuse of the Article 13(b) exception: “only serves to drive a coach and horses through the provisions of this Convention, since it would be open to [any] abducting parent to raise allegations under Article 13."
2) Cannon v Cannon: COURT OF APPEAL (CIVIL DIVISION): 19 October 2004: Thorpe, Waller and Maurice Kay LJ. Furthermore; “In cases of concealment and subterfuge the burden of demonstrating the necessary elements of emotional and psychological ‘settlement’ is much increased.” “The judges in the Family Division should not apply a rigid rule of disregard but they should look critically at any alleged settlement that is built on concealment and deceit…”
MOST CRITIAL CASE
TO ENSURE ALESSIA'S RETURN
This CRITICAL English case held the same opinion in a UK Appeal regarding an abducting parent's attempt to misuse the "acclimatization" proxy of a Child abducted to the United Kingdom. UK judges fortunately refused to thwart the objectives of the convention to NOT return of a 3 YEAR OLD child - the same age as Alessia!
3) [Court of Appeals] Soucie v. Soucie 1995 SC 134, 1995 SLT 4148,1995 SCLR 203: “In our opinion, respondent has failed to demonstrate that such a settlement has been established… because of the age of the child a [3 year old female]; it is unlikely that the child can properly be said to be established in a community involving such matters as school, people, friends, activities and opportunities..."
4) EU COUNCIL REGULATION (EC) No 2201/2003 of 27 November 2003: Article 11 (Para 4): The Brussels Belgium II Revised: Indeed, even under European Law; Article 11: "A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return."
2) Cannon v Cannon: COURT OF APPEAL (CIVIL DIVISION): 19 October 2004: Thorpe, Waller and Maurice Kay LJ. Furthermore; “In cases of concealment and subterfuge the burden of demonstrating the necessary elements of emotional and psychological ‘settlement’ is much increased.” “The judges in the Family Division should not apply a rigid rule of disregard but they should look critically at any alleged settlement that is built on concealment and deceit…”
MOST CRITIAL CASE
TO ENSURE ALESSIA'S RETURN
This CRITICAL English case held the same opinion in a UK Appeal regarding an abducting parent's attempt to misuse the "acclimatization" proxy of a Child abducted to the United Kingdom. UK judges fortunately refused to thwart the objectives of the convention to NOT return of a 3 YEAR OLD child - the same age as Alessia!
3) [Court of Appeals] Soucie v. Soucie 1995 SC 134, 1995 SLT 4148,1995 SCLR 203: “In our opinion, respondent has failed to demonstrate that such a settlement has been established… because of the age of the child a [3 year old female]; it is unlikely that the child can properly be said to be established in a community involving such matters as school, people, friends, activities and opportunities..."
4) EU COUNCIL REGULATION (EC) No 2201/2003 of 27 November 2003: Article 11 (Para 4): The Brussels Belgium II Revised: Indeed, even under European Law; Article 11: "A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return."
Circumventing the Convention
Sadly, these ‘Limited Defences’ are '(increasingly)' interpreted far too liberally in more and more jurisdictions. Judges are allowing Defendant’s to use a range of stalling and/or delaying tactics whilst Convention matters are before Courts. The UK for example delayed Alessia's case more than TEN MONTHS when they are required by European Law to arrive at a return decision in SIX WEEKS. Despite the very nature and spirit of the Convention conveyed within the Articles themselves, foreign Courts are essentially allowing subjective standards to facilitate a foreign nations' bias and partial [manipulation] of the Treaty to create a pretext for discretionary decisions; rendering the Convention largely ineffective to accomplish its true objective.
Indeed, turning to the Hague Convention's primary source of scholarly) interpretation which is located on their website as the 'The Explanatory Report', Professor E. Perez-Vera specifically addresses this growing concern in foreign courts. The Professor cautions judicial authorities against their continued misuse of these Limited Defence strategies which threaten to make the Convention little more than…
“a dead letter”:
"It would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go [and no further]. This implies above all that they are to be interpreted in a [restrictive] fashion if the Convention is not to become ‘a dead letter.’[….]
“In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the [best] way to combat them at an international level is to [refuse] to grant them legal recognition… As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence…would lead to the [collapse of the whole structure] of the Convention by depriving it of the spirit of mutual confidence which is its inspiration."
'The Explanatory Report'
Professor Elisa Pérez-Vera
Sadly, these ‘Limited Defences’ are '(increasingly)' interpreted far too liberally in more and more jurisdictions. Judges are allowing Defendant’s to use a range of stalling and/or delaying tactics whilst Convention matters are before Courts. The UK for example delayed Alessia's case more than TEN MONTHS when they are required by European Law to arrive at a return decision in SIX WEEKS. Despite the very nature and spirit of the Convention conveyed within the Articles themselves, foreign Courts are essentially allowing subjective standards to facilitate a foreign nations' bias and partial [manipulation] of the Treaty to create a pretext for discretionary decisions; rendering the Convention largely ineffective to accomplish its true objective.
Indeed, turning to the Hague Convention's primary source of scholarly) interpretation which is located on their website as the 'The Explanatory Report', Professor E. Perez-Vera specifically addresses this growing concern in foreign courts. The Professor cautions judicial authorities against their continued misuse of these Limited Defence strategies which threaten to make the Convention little more than…
“a dead letter”:
"It would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go [and no further]. This implies above all that they are to be interpreted in a [restrictive] fashion if the Convention is not to become ‘a dead letter.’[….]
“In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the [best] way to combat them at an international level is to [refuse] to grant them legal recognition… As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence…would lead to the [collapse of the whole structure] of the Convention by depriving it of the spirit of mutual confidence which is its inspiration."
'The Explanatory Report'
Professor Elisa Pérez-Vera
J.E.A. v C.L.M. [2002] 220 D. L. R. (4th) 577 (N.S.C.A):
In Nova Scotia a return order was made despite the fact it had been seven years since the child's wrongful removal:
…“the Convention's objective of deterring abductions would be served by ordering return in this case. The circumstances of this abduction were particularly egregious. The mother and those who assisted her [must] be shown that courts will deal firmly and unequivocally with child abduction and that Nova Scotia is [not] a haven for child abductors.”... "The objective of having the child's best interests determined by the court of the habitual residence would also be served by an order for return even though the child had been absent from her habitual residence for the past [s]even years. (…because…) The child's father and extended family were in the United States, as were those who investigated allegations of abuse. The courts there were thus in the best position to continue the process begun in 1995 to determine what was in the child's best interest.”
Lynch v Mendez Lynch, 220 F. Supp.2d 1347, ( M.D. Fla 2002): This 9 year-old boy gave evidence he did [not] wish to return home to Argentina after being abducted by M. He too was ‘well-settled’ in a new school & doing well. The child was returned to Argentina, despite his wishes to remain in the United States. The U.S. Court ruled on autonomous principles of the Convention; averring the young boy’s wishes were not conclusive. Despite being in the United States for ‘three years’ the Court saw the child’s reluctance to return to Argentina was based on lack of memory of life in that country, rather than a desire to be away from his father or leave the U.S. and make new friends abroad. The objectives of the Convention were preserved and a child will grow up knowing both his parents. This boy was NINE…
- Alessia is 3 years old.
WE NEED YOUR VOICE
In Nova Scotia a return order was made despite the fact it had been seven years since the child's wrongful removal:
…“the Convention's objective of deterring abductions would be served by ordering return in this case. The circumstances of this abduction were particularly egregious. The mother and those who assisted her [must] be shown that courts will deal firmly and unequivocally with child abduction and that Nova Scotia is [not] a haven for child abductors.”... "The objective of having the child's best interests determined by the court of the habitual residence would also be served by an order for return even though the child had been absent from her habitual residence for the past [s]even years. (…because…) The child's father and extended family were in the United States, as were those who investigated allegations of abuse. The courts there were thus in the best position to continue the process begun in 1995 to determine what was in the child's best interest.”
Lynch v Mendez Lynch, 220 F. Supp.2d 1347, ( M.D. Fla 2002): This 9 year-old boy gave evidence he did [not] wish to return home to Argentina after being abducted by M. He too was ‘well-settled’ in a new school & doing well. The child was returned to Argentina, despite his wishes to remain in the United States. The U.S. Court ruled on autonomous principles of the Convention; averring the young boy’s wishes were not conclusive. Despite being in the United States for ‘three years’ the Court saw the child’s reluctance to return to Argentina was based on lack of memory of life in that country, rather than a desire to be away from his father or leave the U.S. and make new friends abroad. The objectives of the Convention were preserved and a child will grow up knowing both his parents. This boy was NINE…
- Alessia is 3 years old.
WE NEED YOUR VOICE
VIII. TEXAS COURT OF APPEAL; 8TH DIST:
No. 08-01-00246-CV:
“Velez was entitled to the opportunity to establish the defenses she had pled and to challenge the Italian judgment on the grounds that it was procured by fraud. It was surely not contemplated by the drafters of the Convention that the provision requiring contracting states to use the most expeditious procedures available to implement the objectives of the Convention would override a party's right to present evidence on possible defenses as provided in the articles or on considerations of whether a foreign judgment was obtained by fraud."
No. 08-01-00246-CV:
“Velez was entitled to the opportunity to establish the defenses she had pled and to challenge the Italian judgment on the grounds that it was procured by fraud. It was surely not contemplated by the drafters of the Convention that the provision requiring contracting states to use the most expeditious procedures available to implement the objectives of the Convention would override a party's right to present evidence on possible defenses as provided in the articles or on considerations of whether a foreign judgment was obtained by fraud."
LAST TEXT MESSAGE BART SENT TO SIMMONE (JAN 15 2010) AFTER DISCOVERING PLANS TO KIDNAP ALESSIA