Bundesgericht (Swiss Federal Supreme Court)
Superior Appellate Court
Nicolas von Werdt, Christian Herrmann, Felix Schöbi
UNITED KINGDOM - ENGLAND AND WALES
30 August 2021
Acquiescence - Art. 13(1)(a)
Appeal dismissed, return refused
Decisions 5A_475/2018 of 9 July 2018 and 5A_822/2013 of 28 November 2013
One child wrongfully retained at age 3 – National of United Kingdom and Switzerland – Married parents – Father national of United Kingdom and Turkey – Mother national of Switzerland and Turkey – Joint parental responsibility – Child lived in the United Kingdom until 7 August 2020 – Application for return filed with the courts of Switzerland on 12 April 2021 – Return refused – Main issue: Acquiescence/Consent Art.13(1)(a)] –Father’s behaviour deemed acquiescence, namely signing a residence registration, bringing child’s personal effects, transferring money, signing a divorce agreement accepting Switzerland as the place of jurisdiction.
The application for return concerned the son of a British-Turkish father and Swiss-Turkish mother. The child was three years old at the time of the alleged wrongful retention. The parents were married and lived together in London where the child was born in 2017. The mother and father had joint parental responsibility.
On 7 August 2020, the mother travelled from London to Switzerland with the child to visit her grandmother who was unwell. On 8 August 2020, the mother called the father to inform him that she would remain in Switzerland and would not return to the United Kingdom with the child.
Personal contact between the father and son took place on 16 August 2020 in Zurich. Further contact in person and via video followed.
On 4 September 2020, the mother filed for protection of the marital union with the Zurich District Court.
On 30 January 2021, the father filed an application for return with the Central Authority for England and Wales. On 10 February 2021, the father claimed lack of jurisdiction in the matrimonial proceedings and initiated proceedings in London regarding the child-related matters. At the Swiss matrimonial hearing of 16 February 2021, the parents entered into an agreement on father-son contact pending a final decision on the lack of jurisdiction by the matrimonial judge.
Mediation sessions, held on 23 and 29 March, were unsuccessful.
On 12 April 2021, the father initiated return proceedings before the High Court of the Canton of Zurich (first instance in child abduction cases). On 6 May 2021, the High Court of the Canton of Zurich dismissed the application for return. The father appealed against the decision to the Federal Supreme Court of Switzerland.
The Federal Supreme Court dismissed the applicant's appeal and confirmed the decision of the High Court of the Canton of Zurich (first instance). Return refused; the retention of the child was wrongful, but the father had acquiesced to the retention under Article 13(1)(a).
The will of the consenting or approving holder of parental responsibility must be clearly manifested, whereby it may result from explicit oral or written statements as well as from the circumstances. The circumstances in question must be made objectively credible on the basis of substantiated evidence. In this case, the question was not one of explicit but implied expression of will.
The unequivocal statement that the father had not agreed to the change of the child’s habitual residence did not preclude the possibility that he had later consented to the child remaining in Switzerland.
The applicant expressed his positive attitude towards the permanent settlement of the mother and child in Switzerland in a variety of ways and over a long period of time.
The correspondence via WhatsApp between the father and the mother, as well as with the mother-in-law, the signing of a residence registration for the purpose of health insurance registration and the fact that the father brought the child’s personal effects to Switzerland were assessed.
According to the Federal Supreme Court, money transfers, i.e., GBP 5,000 to attend a day care centre, are not in themselves sufficient to presume authorisation. The obligation to pay child maintenance exists irrespective of the question of wrongful removal or retention.
The Court considered that a decisive expression of the father’s approval of the change of residence was that he signed a divorce agreement and thus accepted Switzerland as the place of jurisdiction not only for the divorce but for the ancillary effects of the divorce.
According to the Federal Supreme Court, once the authorisation under Article 13(1)(a) has been granted, even implicitly, it cannot be withdrawn.
Author: Fenella Peterkin, MLaw