HC/E/UY 1532
URUGUAY
Juzgado de Familia N.º 8
First Instance
Rodolfo E. Souto Etchamendi
SPAIN
URUGUAY
5 January 2021
Upheld on appeal
Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) |
Return ordered
Law 18.895; Children and Adolescents Act; Law 17.823; Convention on the Rights of The Child; The 100 Brasilia Rules on Access to Justice for Vulnerable People
G., P. C. c. H., S. M. s/ reintegro de hijos [INCADAT Reference: HC/E/AR 1315]
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Wrongful retention of an adolescent in Uruguay – Custody right exercised solely by the mother – The adolescent lived in Spain with his mother for 4 years – The return application was filed before the Spanish Central Authority – Return ordered – Main issues: Art. 13(1)(b) grave risk exception, objections of the child to a return – The father did not prove any situation in which there was a grave risk actually making return intolerable and exposing the adolescent gravely – The adolescent voiced a preference but there was no true objection in the sense of an unwavering repudiation towards return.
The case concerns an adolescent who resided in Valencia, Spain, with his mother. The child’s stay in that country had been authorised by the Uruguayan courts in 2015, providing for visitation rights for the father.
In December 2019, the father travelled to Uruguay to spend the Christmas holidays with his father, having to return to Spain in January 2020. However, he did not go back on the date agreed, and thus the mother filed a return application before the Spanish Central Authority, which sent it to its Uruguayan counterpart in December 2020.
Return ordered.
The Court found that the grave risk exception raised by the father was not applicable to this case. He had alleged that the mother was psychologically violent to the child because she was constantly speaking blady of his father and prevented them from being in touch. The Court found that the father had not proved the psychical risk invoked and that the argument regarding lack of communication had been quashed by the adolescent’s statements, since in his declaration he expressed that while living in Spain, the communication with his father was proper, as he called him during the weekends.
In addition, the father argued that the COVID-19 pandemic posed a sanitary risk for the adolescent. However, the Court found that this situation was not envisaged in the strict exceptions in the Convention and that Uruguay could not decide otherwise, and thus refusing the adolescent’s return on the basis of the sanitary argument would not protect him from exposure to this worldwide risk.
All in all, the Court considered that throughout the proceedings no situation amounting to a grave risk making return intolerable and exposing the adolescent severely had been alleged or proved.
The adolescent participated in a hearing in which he expressed that if he could choose where to live, he would rather do so in Uruguay with his father and his paternal family. However, he also manifested that he wished to live with both of his parents and that nothing prevented him from returning to Spain.
The Court found that the adolescent’s sayings could not be regarded as a sufficiently-strong objection to refuse return, especially considering that the exceptions provided in the HCCH 1980 Child Abduction Convention are of a restrictive nature. In this sense, it noted the case law from the Argentine Supreme Court ruling that the exception in Art. 13(2) of the Convention may only be triggered by a qualified will, not referred to custody or visitation, but to the reincorporation to the country of habitual residence and, in this particular area, it cannot be a mere preference or refusal, but a true opposition, understood as an unwavering repudiation to go back.
Author: Antonela V. Rojas (INCADAT LATAM team, Director Nieve Rubaja, Assistant Emilia Gortari).