Bundesgericht (Swiss Federal Supreme Court)
Superior Appellate Court
Christian Herrmann, Nicolas von Werdt, Grégory Bovey
UNITED STATES OF AMERICA
8 September 2021
Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) |
Appeal dismissed, return refused
Decision 5A_764/2009 from 11 January 2010, Decision 5A_721/2009 from 7 December 2009
1 child (allegedly) wrongfully removed at age 4 – National of the USA – Unmarried parents – Father national of the USA and the Dominican Republic – Mother national of Switzerland, the Dominican Republic, Italy – Shared parental responsibility – Child lived in the USA – Application for return filed with the Central Authority of Switzerland on 7th of January 2021 – Return refused – Main issue: Grave Risk (Art. 13(1)(b) – Status quo ante cannot be attained, since mother has a travel ban to the USA. Grave risk to the child if separated from the mother for the next 10 years.
The child, a girl, was 4 at the time of the alleged wrongful removal from the USA.
The parents were not married and met online when the mother was still a teenager (and living in Switzerland). During her second visit to Florida the mother (not a US national) became pregnant.
The mother gave birth to the child in Florida in October 2016 and stayed in the USA on a tourist visa, which expired in November 2016.
The parents separated in 2018 after which the mother moved in with relatives in New Jersey and the father of the child filed a Petition for Establishment of Paternity. During the proceedings, the mother asked the court to grant her and the daughter authorisation to leave the USA, which the court denied.
In early 2020 the daughter mostly lived with the father on the basis of the majority time sharing arrangement set out by the court.
In June 2020 the court in Florida ordered shared parental responsibility, which set out that the child should alternate every eight weeks between her parents. The court also ordered that the parents be prohibited to leave the country with the child.
In October 2020 the court in New Jersey issued a temporary restraining order against the father and attributed temporary custody to the mother based on allegations of the mother that the child had been hurt by the father.
In December 2020 the mother travelled to Switzerland with her daughter. Upon her leaving the USA, border control issued a 10-year ban on the mother’s entry into the USA, as she had stayed in the USA illegally since her tourist visa expired.
The father initiated a child abduction procedure in Switzerland. On 11 May 2021 the High Court of the Canton of Zurich (first instance in child abduction cases) dismissed the father’s request for return. The father appealed against this decision at the Swiss Federal Supreme Court which confirmed the decision of the High Court of the Canton of Zurich.
The father’s appeal was dismissed, and the decision of the High Court of the Canton of Zurich (first instance) was confirmed. Return refused; the removal was wrongful, but the standard of harm required under Article 13(1)(b) had been proved.
Status quo ante
With the return of the child, the status quo ante cannot be obtained. The child used to alternate between the homes of the two parents. However, as the mother was no longer allowed to enter the USA, the daughter would not be able to see her mother for many years and the status quo ante would not be attained.
The notion of grave risk must be interpreted restrictively. According to the case law of the Swiss Federal Supreme Court, the separation between the main caretaker and the (five-year-old) child alone does not, in general, constitute a grave risk in the sense of Article 13(1)(b) of the Hague Convention. However, this is based on the assumption that there are regular visits, which help to maintain the relationship with both parents. In the case at hand, as the mother was not allowed to enter the USA, no relationship with the child could be maintained. Furthermore, given the non-negligible number of allegations of violence on record in the context of the father’s raising of the child there was a threat of a grave risk to the child. It is an illusion to think that the child could request help from the local authorities on her own and the mother would not be able to see any signs of such abuse since she would not be able to visit the child. Furthermore, there was no knowledge of any other environment (e.g., grandparents, neighbours, etc.) that could intervene or at least report in case of an actual incident. Therefore, it was in accordance with Article 13(1)(b) of the Hague Convention that the lower court assumed a grave risk to the child and refrained from ordering the return.
Author: Audrey Canova