HC/E/UY 1511
URUGUAY
Tribunal de Apelaciones de Primer Turno
Appellate Court
SPAIN
URUGUAY
22 December 2016
Final
Habitual Residence - Art. 3 | Removal and Retention - Arts 3 and 12 | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Procedural Matters
Appeal allowed, return ordered subject to undertakings
Arts. 5, 6, 7, 8, 9, 10, 11, 23 and 24 of the 1996 Convention on Jurisdiction, Applicable law, Recognition, Enforcement and Cooperation in respect of parental responsibility and measures for the protection of children; Act No. 18.895 of the Oriental Republic of Uruguay.
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The case concerns a four-year-old girl born on April 17, 2012 in Viella, Spain, where she lived with her unmarried parents. The mother, a Uruguayan national, went on vacation with her daughter to Uruguay. The father gave his daughter an authorization to travel until May 24, 2016. Days before the date set for their return, the mother informed the father of her decision to stay permanently with their daughter in Uruguay.
On June 23, 2016, the father requested the child’s return before the Spanish Central Authority, which in turn was remitted to the Uruguayan Central Authority.
On December 9, 2016, a First Instance ruling ordered the child’s return to Spain, who had to return accompanied by an adult family member other than her father. The mother filed an appeal that was finally allowed by the Court of Appeals (Tribunal de Apelaciones de Primer Turno) on December 22, 2016.
Appeal allowed, return ordered subject to undertakings.
The Court found that the habitual residence of the child, prior to her wrongful retention, was in Spain.
The mother argued that the retention had not been wrongful since the father had given his consent to their permanent relocation through WhatsApp messages, even though he had later regretted them.
The Court held that the trip to Uruguay was authorized by the father but for vacation purposes. It also pointed out that the authorization that disarticulates a request for return is the one that is formally given, which makes a reliable proof of its date and the circumstances in which it was granted. The Court understood that in this case there was no document of this nature.
The Court held that the right of custody was jointly exercised by both parents, in accordance with the Spanish Law (Art. 154 of the Spanish Civil Code).
The mother alleged situations of violence and sexual abuse of the child by her father in Spain; therefore, returning the child to Spain would pose a serious risk to her health.
There were attempts to prove the exception through expert examinations to the child in Uruguay, testimonies from the mother’s witnesses and the child’s medical history in Spain. The Court understood that it could not issue a definitive ruling on the existence or not of abuse, since there was a lack of evidence and it was not the competent court to issue such a decision.
The Court held that there must be a risk, an imminent danger, that is, the real possibility of a dangerous and harmful event specifically threatening the child’s life.
It was also pointed out that the exception raised in this case cannot be considered in isolation because it is part of a certain context, the Convention, which, in turn, is part of a system based on the cooperation between States, which are members of an international legal community in which there is mutual trust based on the Rule of Law and the proper operation of the institutions in each one of its members.
Furthermore, the Court stated that even if the risk were to be proved, it had yet to be established whether it could be prevented or avoided by mechanisms and/or specific protective measures offered by the requesting parent and/or ordered by the jurisdictional authority from the child’s State of habitual residence.
Moreover, it pointed out the importance of investigating the type of protection available in the country of habitual residence, and if it can be effective to ensure the safe return of the child. The Court considered that in this case, Spain did in fact have the mechanisms to deal with issues of domestic violence.
The court applied the 1996 HCCH Convention, conditioning the enforcement of the return to the recognition in Spain of certain protective measures which consisted in the prohibition of contact between the father and the child and her mother, and that the latter would have provisional custody of her daughter. In addition, the father had to demonstrate that the dismissal of the criminal case against the child's mother in Spain was final. Consequently, the lifting of the border closure should be ordered, and the documentation of a personal nature should be delivered in order to proceed with the return.
On 21/09/2017, the Family Law Court of 8th Turn considered accredited the fulfilment of the conditions imposed to order the return. The child's mother filed an appeal for review against that decision and against the final judgment issued by the Court of Appeals that had ordered the return alleging the existence of collusion between the child's defender and the father's defence. In addition, she claimed that the father had carried out fraudulent acts in detriment of the child and her mother and that the first Instance decision was null and void due to lack of defence, since it ordered the enforcement of the return, and no defence could be filed against it. Finally, the child's mother requested the suspension of the return order’s enforcement until the appeal for review was resolved, based on art. 289 of the General Code of the Process. On 3/10/2017, the Supreme Court of Justice decided the suspension of the return order in order to process the appeal for review, considering the requirements demanded by the procedural regulations were met and on 7/06/2018, the appeal was dismissed. Among its grounds, it considered that there were no elements to consider that the child's defender had acted in collusion with the child's father. In addition, it considered that the mother had the opportunity to appeal the judgment that ordered the return order, but she did so outside the term provided by the procedural regulations.
Author: Nieve Rubaja and Ana Zacur