HC/E/AR 1548
ARGENTINA
Corte Suprema de Justicia de la Nación
Superior Appellate Court
Horacio Daniel Rosatti; Carlos Fernando Rosenkrantz; Juan Carlos Maqueda; Elena Inés Highton; and Ricardo Luis Lorenzetti.
SPAIN
ARGENTINA
28 October 2021
Final
Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Issues Relating to Return
Appeal allowed, return ordered
Section 14(3) of Argentine Law No. 48; Articles 3 and 12 of the Convention on the Rights of The Child; Toolkit for the 1980 Child Abduction Convention in times of COVID-19; Guide to Good Practice Child Abduction Convention: Part VI - Article 13(1)(b).
INCADAT: HC/E/AR 362; and HC/E/PY 1332; Decisions from the Argentine Supreme Court: 341:1136, “G.A., D.I.”; 333:604, “B., S.M.”; 336:97, “H.C., A.”; 337:1763, “G., L.”; 339:1763, “G. L.”; 344:1360, “Tabes S.A.”; and 339:1742, “B.D.C., G.E.”.
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Wrongful removal of two girls when they were 10 and 6 years old – Married parents – The girls lived in Spain until July 2016 – Appeal allowed, return ordered – Main issues: Removal and retention, Art. 13(1)(b) grave risk exception, objections of the child to a return, matters relating to return – There was no concluding evidence that the mother had consented to a change in the girls’ habitual residence to Argentina – There was no grave risk that returning to Spain would cause psychological or physical harm to the girls – The girls did not strongly resist against or oppose returning to Spain, they only stated a mere preference for continuing to live in Argentina – The circumstances of the case had to be taken into account and the COVID-19 health emergency context as well in order to make return immediate and safe.
The case concerns two girls, one was 15 years old and the other 11 years old at the time the decision was rendered. The older girl was born in June 2006 in Spain and the other in January 2010 in Argentina. The mother and the father were Argentine, and the father was also a citizen from Spain.
The family moved to Spain in 2006. Three years later, they went back to Argentina. In 2013, the parents got married there. In 2014, they moved to Spain again, settling in Palafolls, Barcelona.
In July 2016, the mother issued an authorisation for the girls to be able to exit the country. A few days later, the girls travelled to France with their father. By the end of July, the father called the mother and let her know that the girls were in Argentina and that they would not be going back to Spain.
Thereafter, the mother requested their return before local Argentine Family Court No. 2, which ordered their return. That decision was later confirmed by Division I of the Court of Appeals in Civil and Commercial Matters in and for the Quilmes District.
The father filed an extraordinary appeal requesting the reversal of the decision on the basis of a wrong application of the law, which was admitted by the Supreme Court in and for the Province of Buenos Aires. Said Court overturned the Court of Appeals’ decision and refused the girls’ return on the basis of the children’s objections to return.
Thus, the mother filed a federal extraordinary appeal before the Argentine Supreme Court.
Appeal allowed, return ordered. The girls’ return was ordered since none of the exceptions in Articles 12 and 13 of the 1980 Child Abduction Convention were established.
The Federal Supreme Court concurred with the Attorney-General’s arguments, and found that the habitual residence of the girls was in Spain. In addition, it found that both parents exercised their custody rights by the time the girls were removed to Argentina and that the mother had not authorised such a change in their habitual residence.
In this regard, the Court held that consent for the removal to Argentina as a permanent destination for the family, amounting to a change in the girls’ habitual residence, would have to be conclusive and the evidence would had to indicate more than a mere possibility. The Court found that whilst the mother had authorised the girls’ exit from Spain, said authorisation was only for a trip to France. Moreover, it found that the fact that the father had taken the girls from Spain to France by car without taking their belongings proved that there was no joint decision. Lastly, it took into account that the mother requested their return immediately.
The Court, sharing the arguments posed by the Attorney-General, held that the grave risk exception only applies when the return causes such alteration in the child that is far more severe than the emotional impact normally caused by a change of residence or by the breaking of the cohabitation with one of the parents. It also explained that, in accordance with the Guide to Good Practice, the risk must be real and in order to be characterised as grave it has to reach a certain level of gravity and lead to an intolerable situation.
It concluded that in this case it had not been proven that the return would expose the girls to a grave risk of suffering psychological harm. In reaching that conclusion, two psychological expert reports were considered, in which it was noted that both girls had psychological resources and mechanisms to cope with the return and that they had the capacity to create new connections there.
Also, it was found that there was no grave risk in exposing the children to a grave physical risk due to the COVID-19 health emergency. It noted that the Guide to Good Practice refers that if the child’s health is at risk, the relevant authority must only focus on the availability of treatment in the country of habitual residence and refrain from comparing the quality of the health system in the countries involved.
The Court held that the child’s objection to a return must evince a true repudiation, which is coherent and unyielding and is about the return to the country of habitual residence, as compared to a mere statement of preference or the child’s mere wish to live in one country and not the other.
It noted that the scenario in which return is refused is exceptional in accordance with the purpose of the 1980 Child Abduction Hague Convention. As a consequence, in order for this exception to apply, courts must not unrestrictedly submit to the child’s opinion or invoke the benefits or detriments that may come with return in a general manner. It held that all these aspects are within the province of the competent jurisdiction of the country of habitual residence.
It concluded that the children’s objections against returning to Spain were not severe enough for the exception to operate, since they did not manifest an unyielding resistance or opposition. In contrast, the Court found that it was only a mere statement of preference of wish to continue to live in Argentina.
The Court wished to reaffirm that the purpose of the Convention lies in allowing for returns to be not only immediate but also safe. In this regard, it pointed out that the sitting court had to determine the way, means and conditions in which the return to Spain was to take place, with a view to cause the least damage possible to the girls considering the circumstances of the case. Lastly, the Court recommended to evaluate viability of the measures tending to achieve said objective, considering the health emergency (Toolkit for the 1980 Child Abduction Convention in times of COVID-19).
Author: Romina Micaela Martín and Sofía Aldana Ansalone (Members of the INCADAT LATAM summaries team, directed by Prof. Nieve Rubaja and assisted by Emilia Gortari Wirz)