CASE

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Case Name

5A_535/2010, II. zivilrechtliche Abteilung, arrêt du TF du 10 août 2010

INCADAT reference

HC/E/CH 1082

Court

Country

SWITZERLAND

Name

Bundesgericht

Level

Superior Appellate Court

Judge(s)
Escher (pdt), Meyer, von Werdt

States involved

Requesting State

SPAIN

Requested State

SWITZERLAND

Decision

Date

10 August 2010

Status

Final

Grounds

Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Procedural Matters

Order

Appeal dismissed, return ordered

HC article(s) Considered

3 13(1)(a) 26

HC article(s) Relied Upon

3 13(1)(a) 26

Other provisions
BG-KKE (French title: LF-EEA); BGG (Federal Court Code)
Authorities | Cases referred to
BGE 120 II 222; BGE 133 III 584; BGE 133 II 249; 133 III 393; BGE 135 I 19; BGE 133 II 249; BGE 134 II 244; BGE 133 III 393; 5A_154/2010 vom 29. April 2010; 5P.199/2006 vom 13. Juli 2007; Zürcher, Kindesentführung und Kindesrechte, Diss. Zürich 2005, S. 89.
Published in

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INCADAT comment

Exceptions to Return

Consent
Establishing Consent

SUMMARY

Summary available in EN | FR | ES

Facts

The case concerned twins born in October 2007. It was not disputed that the family had lived together in Spain until mid-2008. According to the mother, starting at that time, there was the beginning of a move to Switzerland; according to the father, the family had continued to reside in Spain.

On 11 March 2010, the mother took the children and almost all their belongings to Switzerland. On 21 May, the father applied for the children's return. On 14 June, the Superior Court of the canton of Zurich held a hearing at which the issue of mediation was discussed. The mother was in favour but not the father.

On 13 July 2010, the Superior Court ordered the children's return to Spain.The mother appealed to the Federal Tribunal.

Ruling

Appeal dismissed, return upheld. The removal was wrongful and there had been no consent to the removal.

Grounds

Habitual Residence - Art. 3

The mother disputed that the children's habitual residence had been in Spain at the date of the removal. However, she failed to show in what respect the Superior Court had infringed the constitution by locating the habitual residence in Spain. In particular, she failed to show in what respects its decision was arbitrary and merely presented her own evidence without confronting it with the points discussed by the court.

Consent - Art. 13(1)(a)

The mother alleged that the father had consented to the children's settlement in Switzerland. However, she did not substantiate her claims, so that it was necessary to abide by the findings of the Superior Court. One had to be demanding regarding the proof of consent: only a clear and unequivocal expression of intent relating to a durable change of residence could be regarded as consent.

Consent could not be deduced from words spoken in the heat of the moment. Accordingly, consent could not be deduced from the fact that the father had told the mother in anger during a quarrel that he didn't wish to see her any more.

Likewise, consent could not be deduced from the fact that the father had agreed at a dinner, six months before the removal, to consider the idea of a move to Switzerland (a move which in fact he believed to concern the whole family). The mother had failed, therefore, to prove the existence of consent.

Procedural Matters

Mediation:
The mother claimed that the Superior Court ought to have initiated conciliation or mediation proceedings in accordance with Article 8 of the Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults (LF-EEA). They had at least to be attempted.

The Federal Tribunal noted that the hearing on 14 June 2010 should be viewed as conciliation proceedings within the meaning of Article 8 LF-EEA. The issue of a mediation had been mentioned and the father had refused it, for which he could not be blamed since the Hague Convention offered him an opportunity to apply to the courts for return of the children.

Having regard to the father's position, mediation was pointless: in the words of the Federal Tribunal itself, mediation implied co-operation between the parties in seeking a solution and that approach accordingly required both parties to be willing to try to overcome their difference. There was accordingly no breach of Article 8 LF-EEA.

Federal Tribunal and remedies:
The Federal Tribunal pointed out that rulings on a child's return under the Hague Child Abduction Convention were not civil matters. They were matters of administrative assistance between Contracting States. A civil appeal brought within the statutory period of 10 days against the final decision at canton level was admissible in principle.

The civil appeal could be entered on the basis of breach of the Hague Child Abduction Convention. The Federal Tribunal applied the law sua sponte, provided that the complaint raised was specific and concrete.

The Federal Tribunal further stressed that it acted on the basis of facts determined by the previous authority, unless they had been established manifestly wrongly (in arbitrary fashion), or in breach of the law; in such case, the burden of proof was borne by the party alleging arbitrary action. The appellant also needed to show in what respect the disputed point determined the outcome of the proceedings. No new pleas might be raised.

Timing of return:
The Federal Tribunal allowed the mother 20 days from notification of its ruling to return the children to Spain voluntarily.

Expenses:
It held the mother liable to indemnify the father to the extent of CHF 2,000 under Article 26(4) of the Convention.

Author of the summary: Aude Fiorini

INCADAT comment

Establishing Consent

Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.

United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:

Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37].

This strict view has not been repeated in later first instance English cases, see:

Re C. (Abduction: Consent) [1996] 1 FLR 414 [INCADAT cite: HC/E/UKe 53];

Re K. (Abduction: Consent) [1997] 2 FLR 212 [INCADAT cite: HC/E/UKe 55].

In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing.  Moreover, there could also be cases where consent could be inferred from conduct.

Germany
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].

Convincing evidence is required to establish consent.

Ireland
R. v. R. [2006] IESC 7; [INCADAT cite: HC/E/IE 817].

The Re K. approach was specifically endorsed by the Irish Supreme Court.

The Netherlands
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].

Consent need not be for a permanent stay.  The only issue is that there must be consent and that it has been proved convincingly.

South Africa
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].

Consent could be express or tacit.

Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];

5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];

5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];

The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child.  To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.

United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].

There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.