HC/E/AT 1047
AUSTRIA
Oberster Gerichtshof
Superior Appellate Court
SPAIN
AUSTRIA
8 July 2010
Final
Grave Risk - Art. 13(1)(b) | Issues Relating to Return | Procedural Matters
-
-
-
The Court recalled that the aim of the Convention is to discourage parents from wrongfully removing a child and to guarantee the jurisdiction of the courts of the State of habitual residence of the child to decide on the custody. Article 13 had to be interpreted restrictively, the Convention being based on the principle that the child's best interests were best guaranteed by returning him/her, and only truly serious risks justified that exception be made to this principle.
In the case at hand, after having sought advice from a lawyer, the mother had perfectly planned the removal. Although she had not chosen Serbia as her country of refuge, she should not unduly derive advantage from her actions. She had not proven that the father had a drink or drugs problem, nor had she shown that the fact that the father was a long-distance lorry driver represented grounds for an exception to the return.
The Court underlined the fact that the Convention was based on mutual trust between the Contracting States and that the same approach should be applied with regard to returns to Austria and returns from Austria to another State Party.
The Court noted that the return does not necessarily imply separation of the child from the taking parent. The Convention did not require the child to be left with the left-behind parent but simply that the child returns to the State of his/her habitual residence at the time of the removal. The decision regarding who the child would live with in the future fell to the authorities of that State, in the case at hand, to the Spanish courts.
Procedural matters
The application for return was indeed admissible as it had been made less than a year after the retention. In addition, a wrongful removal could not lead, by principle, to a transfer of jurisdiction between States which are Parties to the Convention. The Supreme Court specified that, as resulting from a decision of the Court of Justice of the European Union, this was valid even if, after the removal, the child had acquired a new habitual residence in the host country.
Author of the summary: Aude Fiorini
-
See also the decision rendered by the Supreme Court in this matter on 8 May 2013: 6Ob86/13k, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 1295].
Article 12 of the Convention does not prescribe the place to which the child should be returned. The drafters wished for the provision to be left sufficiently wide to allow for a return to a State other than that of the child's habitual residence. However, the Preamble makes clear that the general intention is that a return should be to the latter State. Of course a return to the State of habitual residence does not of itself require the child to be placed into the care of the applicant parent or indeed of a State agency; very often the child will remain in the care of the abducting parent pending the determination of the substantive custody case. Furthermore a return need not mean a return to the particular place in the State where the child previously lived.
Courts have taken advantage of the flexibility in the drafting of Article 12 when dealing with return applications, see:
Australia
Murray v. Director, Family Services (1993) FLC 92-416 [INCADAT cite: HC/E/AU 113].
The Full Court suggested that mother and children return to a different part of New Zealand from that where they previously lived in order to avoid danger at the hands of the applicant father.
Israel
G. v. B., 25 April 2007, Court for Family Matters, Beersheva [INCADAT cite: HC/E/IL 910].
Child ordered to be returned to Belgium, the country where he was to live, although it was not his State of habitual residence prior to the removal.
Where a court considered that the applicant father had no intention of actually remaining in the State of habitual residence with the child, but was actually seeking to bring about a relocation to a non-Convention State, it decided not to make a return order.
Canada
Espiritu v. Bielza, [2007] O.J. No. 1587; 2007 ONCJ 175; 39 R.F.L. (6th) 218; 2007 CarswellOnt 2546, [INCADAT cite: HC/E/CA 728].
For discussion of the drafting of Article 12 see:
P. Beaumont & P. McEleavy The Hague Convention on International Child Abduction, Oxford OUP, 1999.