Bundesgericht (Swiss Federal Supreme Court)
Superior Appellate Court
Christian Herrmann, Luca Marazzi, Nicolas von Werdt
6 January 2022
Removal and Retention - Arts 3 and 12 | Objections of the Child to a Return - Art. 13(2) | Grave Risk - Art. 13(1)(b)
Appeal dismissed, return ordered
Two children wrongfully retained at ages 14 and 12 – Nationals of Switzerland and Slovakia –Divorced parents – Father national of Switzerland and Slovakia – Mother national of Czech Republic – The children are under joint custody of the parents. The mother has sole care. – Children lived in Spain (until June 2021) – Application for return filed with the Courts of Switzerland on 16 September 2021 – Return ordered
The application concerned two boys, who were 12 and 14 years old at the time of the wrongful retention. The older child was diagnosed with autism and Down syndrome and the youngerchild with a language development disorder identified as part of a general developmental delay.
The family lived in Switzerland until the end of 2015 before the children moved with the mother to Spain. The parents divorced in 2019, but retained joint parental responsibility.
In January 2016 the father wrongfully removed the children to Switzerland. Child abduction proceedings ended with a decision of the Swiss Federal Supreme Court ordering the return of the children to Spain (Decision 5A_293/2016 of the 8th of August 2016).
The parents agreed that the children would spend time in Switzerland with their father from 23 June until 31 July 2021. After that date the father did not return the children but travelled to different countries before settling back in Switzerland with the children.
On 16 September 2021, the mother filed an application for return at the High Court of the Canton of Bern (first instance in child abduction cases). The younger child was heard on 20 October 2021. On 29 October 2021, the High Court of the Canton of Bern ordered the return of the children. The father appealed against this decision before the Swiss Federal Supreme Court.
The Federal Supreme Court dismissed the father’s appeal and confirmed the decision of the High Court of the Canton of Bern ordering the return of the children.
The retention was wrongful since the children were habitually resident in Spain and the parents shared parental responsibility.
The father’s argument that Article 13(2) should have been applied was refuted on the basis that even though the younger boy was 13 years old at the time of the hearing, he lacked the ability to understand the proceedings and internalised the paternal views instilled in him in a manipulate manner.
As with regard to Article 13(1)(b) the court decided that particularly in view of the speculative nature of how things will develop in the event of a return to the mother and thus the restoration of the status quo ante, the impending grave danger to the children was not sufficiently tangible.
Author: Audrey Canova