HC/E/PA 1489
PANAMA
Second Court of Children and Adolescents of the First Judicial Circuit of Panama
Appellate Court
Milixa Hernandez, Judith Cossu de Herrera, Efren Cecilio Tello y Oderay Evans de Santana.
UNITED KINGDOM - ENGLAND AND WALES
PANAMA
5 June 2014
Final
Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Procedural Matters
Appeal allowed, return ordered
United Nations Convention on the Rights of the Child
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The proceeding concerned a child who was born on 9 July 2009 in Northampton, England, where she lived since birth. Her mother and father got married on 11 October 2008.
On 21 December 2010, in the proceeding concerning custody, upbringing of the child and visitation rights, the Northampton County Court issued an order preventing the mother from removing the child form the jurisdiction of the Court without the father’s permission unless another order was granted.
On 18 May 2011, the Court ordered that the child reside with the father in the United Kingdom, and have contact with the mother in accordance with terms established and known by both parents, who would have to consult each other and reach an agreement on all significant decisions regarding the care and welfare of the child. Furthermore, taking into account the departure of the mother to Panama, the Court provided that contact between mother and child would take place in the United Kingdom and Panama, the mother being entitled to contact during one month per year.
In compliance with the contact arrangements, the father travelled with the daughter to Panama on 24 April 2013, with return scheduled for 24 May 2013.
Since 5 May 2013, the mother denied the father contact with the child, cutting off communication from 19 May 2013 to 24 May 2013, when she called the father informing him that she would not return the child.
Having been made aware of the conflict via e-mail by the father, on 21 May 2013, the Northampton County Court ordered the mother to return the child to the father before 23 May 2013.
The last time the father had visual contact with his child was on 5 May 2013 and the last time he talked to her was on 18 May 2013. Since then, the only possible contact took place through Facebook.
On 23 July 2013, the First Instance Children’s Court in Panama (Juzgado Segundo de Niñez y Adolescencia del Primer Circuito Judicial de Panamá) was seized of the international return proceedings transmitted to the Panama Ministry of Foreign Affairs by the Central Authority of the United Kingdom of Great Britain and Northern Ireland.
At the hearing held on 20 August 2013, the mother said that when she received the child she was concerned about her health and, when she took her to the paediatrician, she realised that the child was not being cared for properly. Furthermore, she expressed that the father was violent towards her while residing in England and, when describing these incidents, she clarified that she had not had the courage to express them before the Court. The Court identified her arguments as falling under Article 13(1)(b) of the 1980 Hague Convention on Child Abduction and requested information from the Panama Central Authority. The Court further enquired if there was any prohibition preventing the mother from having contact with her child or from appearing before the competent authority of that country.
After analysing the documents received, the Court concluded that the grounds for the exception were not properly established. On 13 February 2014, it ordered the return of the child to Northampton.
The mother appealed before the Appellate Court (Tribunal Superior de Niñez y Adolescencia).
Appeal allowed; return ordered. The Appellate Court held that the Article 13(1)(b) exception was not established.
The Appellate Court held that the habitual residence of the child was in the United Kingdom of Great Britain and Northern Ireland considering that the Northampton County Court granted custody to the father, therefore setting the residence of the child in that country.
The Court held that retention of the child was wrongful since the father consented to her travelling to Panama but not to her remaining there. The child’s stay was supposed to be temporary and thus, there was wrongful retention by the mother in Panama when the child stayed beyond the agreed time (one month) without the father’s authorisation or consent.
The Court held that the mother’s submission concerning possible health risks for the child if returned to the United Kingdom was not sufficient to establish the grave risk exception.
The Court also considered the mother’s submissions with regard to the violence she allegedly suffered from the father, and with regard to the child’s attachment to her mother, which was proved in the psychological evaluation of the child. The Court held that the psychological reports indicated that the child was integrating into Panamanian society and had a good relationship with her mother, but that these circumstances by no means could be interpreted as grounds to allow the exception of Article 13 of the 1980 Hague Convention.
The return proceedings lasted about one year since their commencement until the Appellate Court granted return.
The Central Authority of Panama transmitted a note to the Court of First Instance, in which the Central Authority of the United Kingdom asked about the possibility of ordering interim contact between the child and her father. The Court, in compliance with Article 7 of the 1980 Hague Convention and Article 9 of the UN Convention on the Rights of the Child, ordered that communication should take place via Skype.
Author: Nieve Rubaja
Co author: Silva Sabrina Anabel