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Case Name
N. R. c. J. M. A. V. s/reintegro de hijo
INCADAT reference
HC/E/CL 1318
Court
CHILE
Corte Suprema
Superior Appellate Court
Hugo Dolmestch U., Pedro Pierry A., Carlos Künsemüller L., Haroldo Brito C., Rosa María Maggi D.
States involved
FRANCE
CHILE
Decision
28 February 2013
Final
Habitual Residence - Art. 3 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b)
Appeal allowed, return ordered
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SUMMARY
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Facts
In October 2011, the father sent an e-mail to the mother stating that he would allow her to hold sole custody of the child wherever she was. In turn, he requested the mother allow him contact with the child and allow the girl to maintain her French and to travel to France.
In November 2011, the girl travelled to France with her mother. The couple continued to have communication difficulties and the mother filed a complaint on psychological and physical family violence. She included a certificate dated 21 December stating that she had haematomas in different parts of her body. The specialist who issued the certificate gave no further details.
Divorce proceedings were initiated in France. In a hearing held in January 2012, the mother expressed that she did not want to live in Chile. In light of both parents holding custody rights, and considering it in the best interests of the child, the French Court held that the girl was not able to leave the country without authorisation from both her parents.
In January 2012, the girl travelled with her mother to Chile without the father's consent. The father requested the return of the girl to France under the 1980 Hague Child Abduction Convention. The mother opposed the request by raising the exceptions of Article 13(1)(a) and (b) of the Convention.
On 20 June 2012, the Santiago Family Court (Tercer Juzgado de Familia de Santiago) in Chile denied the return of the child based on Article 13(1)(a) and (b). The father appealed and the Court of Appeals of Santiago confirmed the decision of the first instance court on 22 October 2012. The father then appealed the decision to the Chilean Supreme Court.
Ruling
Grounds
Habitual Residence - Art. 3
The Court considered that the habitual residence of the child immediately before removal was in France.
Rights of Custody - Art. 3
The Court affirmed that both parents held custody rights according to French law and held that the prohibition for the child to leave the country (which had been imposed by the French court) had been violated.
Grave Risk - Art. 13(1)(b)
The Court held that the exception of Article 13(1)(b) could not be applied to the case because the requirements were not satisfied. The terms "grave risk" and "physical or psychological harm" were analysed and the Court considered that such terms referred to a serious situation with a possible, imminent or proximate risk of material or psychological harm.
The Court held that it was not in "the best interests of the child" to evaluate once again what had already been established in the proceedings in France. The purpose of the return proceedings was thus to analyse whether the exceptions provided for in the Convention were to be applied.
The Court understood that the arguments considered by the inferior court to establish the exception - the girl's lack of emotional and psychological stability and the fact that she had lived most of her life in Chile - had to be taken into account to decide on the matter of custody, because it had a different legal nature.
The Court also considered that the father's presence was unequivocally necessary. It concluded that the child would not suffer a grave risk of harm or otherwise be placed in an intolerable situation upon its return to France. The Court therefore allowed the appeal and ordered the return.
The dissenting judge held that Article 13(1)(b) had not been wrongly applied by inferior courts. He considered that it was uncertain whether the mother would accompany the girl back to France due to the criminal complaint filed against her for having removed the child to Chile. He also considered that if the mother decided to go to France, it would not be certain she would find a job.
This would mean that she would have to depend financially on the father, with whom she had had conflicts. These situations would imply an "unreasonable sacrifice" to her. He concluded that separating the girl from her mother and returning her to her country of origin without her mother would affect the stability the child had at that moment and expose her mainly to psychological harm. The majority did not share these views.
Author of the summary: Professor Nieve Rubaja and Antonela Rojas, Argentina