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CASE

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Case Name

Decision 5A_827/2016 of 30 November 2016

INCADAT reference

HC/E/CH 1535

Court

Country

SWITZERLAND

Name

Swiss Federal Supreme Court

Level

Superior Appellate Court

Judge(s)

Christian Herrmann, Felix Schöbi, Nicolas von Werdt

States involved

Requesting State

POLAND

Requested State

SWITZERLAND

Decision

Date

30 November 2016

Status

Final

Grounds

Removal and Retention - Arts 3 and 12 | Procedural Matters |

Order

Appeal dismissed, return ordered

HC article(s) Considered

13(1)(a) 13(1)(b)

HC article(s) Relied Upon

-

Other provisions

-

Authorities | Cases referred to

-

Published in

-

SYNOPSIS

Synopsis available in EN

1 child wrongfully removed at age 3 – National of Poland - Married parents (ongoing divorce proceedings) – Mother national of Poland – Father national of Poland - Parents had joint custody. Divorce court gave mother the right to have the child during the abduction until the end of the divorce proceedings. Decision that was annulled after return was ordered. – Child lived in Poland (until 4 December 2015)  – Application for return filed with the Central Authority of Switzerland on 6 June 2016 – Return ordered – Main issue: Grave Risk – The fact that the mother considers her own return to Poland to be intolerable, both financially and professionally, is not relevant to the examination of the exception to return.

SUMMARY

Summary available in EN

Facts

The application related to a girl, who was 4 years old at the time of the wrongful removal.

The family lived in Poland and the parents had initiated divorce proceedings. In August 2015 the mother went to Switzerland for a couple of months while the child stayed in Poland with her father. In December 2015 the mother took the girl to Switzerland without the father’s consent.

On 27 September 2016, the father filed an application for return at the High Court of the Canton of Vaud (first instance in child abduction cases). On 19 October 2016, the High Court of the Canton of Vaud ordered the return of the child. The mother appealed this decision before the Swiss Federal Supreme Court.

Ruling

The Federal Supreme Court dismissed the mother’s appeal and confirmed the decision of the High Court of the Canton of Vaud through ordering the return of the child.

Grounds

Removal and Retention - Arts 3 and 12

-

Procedural Matters

The court stated that since the mother’s appeal was from the outset without any chance of success, her application for free legal aid could not be granted.
 

Author :
Audrey Canova