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The case concerned a child born on 15 April 2013 in Belarus, whose parents got divorced on 3 April 2014. A decision from a Belarus court, handed down on 29 November 2019, approved the parental agreement which gave the mother primary custody over the child. In June 2021, the mother went to France with the child and requested asylum.

The father filed a return application under the 1980 Convention. The public prosecutor of the District Court (procureur de la République du tribunal de grande instance) of Strasbourg brought proceedings against the mother on 27 September 2021, in order to obtain the return of the child. The case went to the Court of Appeal (cour d’appel) of Colmar, which declared the removal of the child wrongful. The mother appealed this decision before the Supreme Court (Cour de Cassation).

Decision overturned and case remitted to a lower court. The Supreme Court ruled that the Court of Appeal should have specified the provisions of the Belarusian law on which it relied to conclude that both parents had rights of custody over the child.

Rights of Custody - Art. 3

In her appeal before the Supreme Court, the mother pointed out that the Court of Appeal of Colmar erroneously ruled that both parents had rights of custody over the child in accordance with Belarusian law and within the meaning of Articles 3 and 5 of the 1980 Convention. She argued that the Court of Appeal did not mention precisely which provisions of the Belarusian law it referred to in order to make that determination and, thereby, contested the father’s custody rights.

The Supreme Court accepted the mother’s arguments and overturned the Court of Appeal of Colmar’s ruling, noting that the Court of Appeal did not provide a legal basis for its decision. The Supreme Court noted that the Court of Appeal should have specified the provisions of the Belarusian law on which it based the automatic attribution of rights of custody to both parents, within the meaning of the 1980 Convention.

Author: Camille Druilhet