CASE

Download full text ES

Case Name

M, H. c/ P. R., A. RESTITUCIÓN INTERNACIONAL DE MENORES DE 16 AÑOS

INCADAT reference

HC/E/UY 1531

Court

Country

URUGUAY

Name

TRIBUNAL DE APELACIONES DE FAMILIA DE SEGUNDO TURNO

Level

Appellate Court

Judge(s)

Gloria Elisa Seguessa Mora, Lina Silvia Fernández Lembo, Loreley Opertti Gallo

States involved

Requesting State

CHILE

Requested State

URUGUAY

Decision

Date

11 January 2019

Status

Final

Grounds

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Procedural Matters |

Order

Appeal dismissed, return ordered

HC article(s) Considered

13(1)(a)

HC article(s) Relied Upon

13(1)(a)

Other provisions

Law No. 18,895

Authorities | Cases referred to

-

Published in

-

SYNOPSIS

Synopsis available in EN | ES

Wrongful retention of two children – Venezuelan nationals – Married parents – Both parents had custody rights – The return application was filed before the Chilean Central Authority in November 2018 – Return ordered – Main issues: consent, removal and retention, procedural matters – the evidence proffered by the mother was not sufficient to prove the father’s will in the travel authorisation – The father had consented to the removal, but not a change in residence, and thus there was a wrongful retention – Safe return measures were adopted for the children to undergo return with the least harm possible.

SUMMARY

Summary available in EN | ES

Facts

The case concerns two Venezuelan children residing in Chile with their parents. The parents were married. 

In July 2018, the father issued an authorisation for the children to travel with their mother to Uruguay, where her family lived. Said permission was valid for three months, expiring in the first days of October 2018. In addition, in the document there was an express provision that the authorisation did not allow for the children’s adoption abroad or a change in residence.

In September 2018, the father travelled to Uruguay and learned that one of the children was attending school and that the mother had rented a house, had a job and a new boyfriend. She informed him that for those reasons she would not go back to Chile with the children. 

The father applied for return of the children before the Chilean Central Authority in November 2018. The application was referred to Uruguay, where judicial return proceedings were initiated. In December 2018, the first instance judge ordered the children’s return to the Republic of Chile.  The mother appealed.

Ruling

Return ordered. 

Grounds

Removal and Retention - Arts 3 and 12

The First Instance Court found that both parents exercised custody of the children when they were removed from Chile to Uruguay, under Chilean law. In that regard, it held that both parents had to give their consent to the removal of the children and their staying in a country other than the one of their  habitual residence.

The court noted that in the case it was clear that the father had manifestly expressed consent for the children to go to Uruguay for a period of three months, but not to a change in their residence. Thus, it arrived at the conclusion that the children’s permanence in Uruguay upon expiration of that period was wrongful.

Consent - Art. 13(1)(a)

The mother opposed return arguing that, because of the urgency to escape from gender violence in Chile, she had accepted that the travel authorisation be limited to three months, but she alleged that the father knew of and had consented to the permanent residence of the children in Uruguay. In order to prove that assertion, she submitted communications with the children’s father and furnished witness testimony. In particular, she asserted that the fact that she took all their belongings when travelling to Uruguay with the children was to be weighed in her favour.

However, the Court found that the father’s reluctance to the children’s permanent residence in Uruguay was reflected on the communications submitted by the mother. In addition, it was noted that the mother had sent messages to the father asking him to deliver their children’s clothes and other belongings to Uruguay, which proved the assertion that nothing had been left in Chile false. The furnished witness evidence was considered insufficient to prove the exception.  Thus, the Court held that the evidentiary elements referred to by the mother were equivocal and inapt to ascribe the asserted will in the relevant authorisation.

Procedural Matters

The Court understood that measures had to be adopted for the safe return of the children, safeguarding their rights whilst the issues of custody, child support and visitation rights were adjudicated before court or settled by the parents’ agreement.

The Court took into account that the children had suffered permanent alienation, and thus it was important that return went as smoothly as possible, with the least damage.

In that sense, the Court decided, provisionally and until Chilean courts resolved the merits of the dispute, that the mother should have the children’s custody and the father free visitation rights, although not at the children’s home. Moreover, the father was ordered to pay child support, in addition to the children’s flight tickets for their return to Chile.

The Court also held that Chile had to oversee actual compliance with the measures adopted until expiration by way of an interlocutory or final judgment or by the parties’ agreement, confirmed by a Chilean court, in proceedings where due process was safeguarded and gratuitousness guaranteed, considering the power imbalance between the father and the mother of the children.

Author: Jean Marco Lopez (INCADAT LATAM team, Director Nieve Rubaja, Assistant Emilia Gortari).