CASE

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Case Name

CA Poitiers, 16 avril 2009, No de RG 09/00356

INCADAT reference

HC/E/FR 1031

Court

Country

FRANCE

Name

Cour d'appel de Poitiers, chambre civile 4

Level

Appellate Court

Judge(s)
M. Constant (Pdt); Mmes Fèvre & Pichot (conseillers)

States involved

Requesting State

UNITED KINGDOM - ENGLAND AND WALES

Requested State

FRANCE

Decision

Date

16 April 2009

Status

Upheld on appeal

Grounds

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Procedural Matters

Order

Appeal dismissed, return ordered

HC article(s) Considered

1 3 13(1)(b) 13(2) 26

HC article(s) Relied Upon

13(1)(b) 13(2) 26

Other provisions
Arts 11, 20 of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
Authorities | Cases referred to

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SUMMARY

Summary available in EN | FR | ES

Facts

The children, two boys, were born in 1995 and 1997. Following the parent's divorce in 2001, the residence of the children was set with their mother in England.

After a visit with their father at his home in France in the context of his access rights, the father failed to bring the children back on the expected date, 3 January 2009, basing himself on a decision of the Court of Roche sur Yon of 2 January which awarded him provisional custody.

On 9 January 2009, the English High Court declared the retention of the children wrongful and made the children wards of court. The mother requested their return on the basis of the Hague Convention.

On 2 February 2009, the family judge of Poitiers Regional Court (le juge aux affaires familiales du Tribunal de Grande Instance de Poitiers) ordered the return of the children.

The father appealed requesting suspension of the provisional enforcement. His request for suspension of the provisional enforcement was rejected on 10 March 2009.

Ruling

Appeal dismissed; the retention was wrongful and the grounds for exception under the Convention were not applicable.

Grounds

Removal and Retention - Arts 3 and 12

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Grave Risk - Art. 13(1)(b)

The Court of Appeal approved the first judge's refusal to apply Article 13, paragraph 1 (b) because of Article 11 of the Brussels II a Regulation insofar as, by declaring the children as wards of court, the English judge had taken the appropriate measures of protection for the children.

Objections of the Child to a Return - Art. 13(2)

The Court of Appeal noted that the children, aged 14 and 11 at the time of their hearing, had shown maturity and were opposed to their return. Nevertheless, it felt it could not be ignored that the children's opinion had been influenced by the loyalty conflict with which they were confronted, while, in addition, they had been entirely cut off from their mother for more than 3 months.

Furthermore, the Court noted that the children referred to the same events that they had mentioned during a previous hearing, following a previous removal, and finally it observed that all measures had been taken in their best interests in England, underlining in particular the fact that the High Court was waiting for the return of the children in order to decide on the appointment of an ad hoc guardian for them. It concluded that the children's opposition alone did not justify obstructing their return.

Procedural Matters

The Court applied Article 26 and awarded the mother the 5,000 Euros she had requested.

Author of the summary: Aude Fiorini