CASE

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Case Name

G. L. S. L C/ C. V. L. J. RESTITUCIÓN INTERNACIONAL DE MENORES

INCADAT reference

HC/E/UY 1528

Court

Country

URUGUAY

Name

Juzgado de Primera instancia de Libertad de 2do turno

Level

First Instance

Judge(s)

Boné, María Fátima

States involved

Requesting State

BRAZIL

Requested State

URUGUAY

Decision

Date

8 June 2020

Status

Final

Grounds

Consent - Art. 13(1)(a) | Grave Risk - Art. 13(1)(b) | Procedural Matters | Interpretation of the Convention |

Order

Return refused

HC article(s) Considered

3 12 13(1)(b)

HC article(s) Relied Upon

3 12 13(1)(a)

Other provisions

Sections 14 and 15 of Law 18,895

Authorities | Cases referred to

INCADAT: HC/E/NL 318; INCADAT: HC/E/CA 1028; INCADAT: HC/E/UKs 904.

Published in

-

SYNOPSIS

Synopsis available in EN | ES

Lawful retention of two girls - Uruguayan – Separated parents – The girls lived in Brazil until 19 April 2019, when the mother removed them to Uruguay – The mother filed a return application with the Brazilian Central Authority – Return refused – Main issues: removal and retention, consent, Art. 13(1)(b) grave risk exception, procedural matters, interpretation of the Convention – There was no wrongful retention, as the mother actually removed them voluntarily to Uruguay – The mother had consented that the girls live in Uruguay by removing them to that country and delivering the necessary documents for them to resume their life there to the father – There was a grave risk due to the high emotional disturbance they suffered as a consequence of the physical, psychological and sexual violence they had suffered in Brazil – The proceedings are autonomous and specific for international child abduction cases under Uruguayan Law 18,895 – The children’s best interests in this case had been furthered by preventing them from returning to an environment of sexual, psychological and emotional abuse.

SUMMARY

Summary available in EN | ES

Facts

The case concerns two girls aged 11 and 14 by the time the court judgment was entered. Their parents were not together, and they lived with their mother in Brazil, whereas the father lived in Uruguay. On 10 April 2019, their mother took them to Uruguay for them to stay with their father for a while.

The mother alleged that a month later she travelled to Uruguay to pick the girls up but their father refused to surrender them to her. Thus, the mother filed a return application on 17 September 2019 before the Brazilian Central Authority, which referred it to its Uruguayan counterpart.

Ruling

Return refused. There had been no wrongful removal. Besides, the Court found that the case was framed by Article 13(1)(b) of the HCCH 1980 Child Abduction Convention.

Grounds

Consent - Art. 13(1)(a)

The father alleged that the mother had expressed an explicit will for the girls to live with him when handing him the girls’ school transfer cards, a duffel bag full of clothes, their health carnet, and their ID cards.

The judge found that the mother had unequivocally consented to the girls staying in Uruguay by removing them from Brazil and delivering the necessary documents for them to resume their life there to him. Amongst those documents, special weight was given to the fact that the mother had given the father the girls’ school transfer cards. The judge considered that if the girls had travelled to Uruguay for a vacation or for a short period of time, it was not logical for them to go to school, as admission would not have been granted absent a chance of permanence in the country. At the same time, it held that consent does not have to be given for a permanent stay, but rather it has to exist and be clearly established.

Grave Risk - Art. 13(1)(b)

The father raised the grave risk exception submitting that the mother was bipolar and that she mistreated the girls physically, forcing them to talk to old men for money and that the mother’s boyfriend had sexually assaulted and physically attacked one of the girls.

In order to ascertain the existence of grave risk, a psychological exam of the girls was conducted. It then became evident that they had suffered multiple episodes of physical and psychological violence by their mother and her boyfriend, as well as firearm threats by the latter. Also, they showed signs found in children who are victims of sexual assault and abuse.

Apart from the expert evidence, the judge considered the witnesses’ and the girls’ statements. The girls coherently narrated the episodes of violence and sexual assault in Brazil. In addition, it was found that their version matched what the oldest had said in an interview with the school’s psychologist in Uruguay.

On the basis of the evidence submitted, the judge granted the grave risk exception due to the degree of emotional disturbance of the girls and the degree of veritableness of the sexual assault. In that regard, it held that abuse in any of its forms transcends the child’s private life and may interfere with and affect their full development, impairing them in their adulthood.

Procedural Matters

Uruguayan Law N.º 18,895 regulates an autonomous and specific procedure for the international return of children below the age of sixteen who are wrongfully removed or retained. In accordance with this law, the court ordered the girls’ travel restriction and the withholding of their identity documents (Art. 11). Also, she scheduled a hearing in which the girls were heard (Sect. 19).

The court found that, the counterpart of every child’s right to be heard is the “right to have an answer”. The court explained that when the girls were testifying, they were asked if they wanted to know the outcome of the proceedings and their response was in the affirmative. Accordingly, the court included a special section in the judgment addressed to the girls, explaining the decision in clear and understandable language according to their development.

Interpretation of the Convention

The court found that, in the case at hand, a return order was against the girls’ best interests. She explained that the child’s best interests demand the recognition and enforcement of their human rights, and thus said standard could not be invoked to undermine those rights. Here, the judge considered that the girls’ best interests had been given effect by preventing their return to a place of sexual, psychological, and emotional abuse.

Author: Sofía Ansalone (INCADAT LATAM team, Director Nieve Rubaja, Assistant Emilia Gortari Wirz).