Download full text
FR
Case Law Search
New searchCASE
Case Name
Cour de cassation, civile, Chambre civile 1, 27 juin 2019, 19-14.464, Publié au bulletin
INCADAT reference
HC/E/FR 1725
Court
FRANCE
Supreme Court
Superior Appellate Court
Ms Batut (president)
States involved
LUXEMBOURG
FRANCE
Decision
27 June 2019
Final
Grave Risk - Art. 13(1)(b)
Appeal dismissed, return refused
Art. 3 (1) of the United Nations Convention on the Rights of the Child of 20 November 1989 (UNCRC)
-
-
SYNOPSIS
Synopsis available in
EN
1 child wrongfully removed – National of France – Parents nationals of France – Both parents hold custody rights over the child – Child lived in Luxembourg until summer 2018 – Application for return filed with the District Court of Grenoble, France on August, 15, 2018 – Return ordered - Appeal filed before the Court of Appeal of Grenoble – Return order overturned on appeal – Supreme Court upheld appeal decision - Main issue: Art. 13(1)(b) grave risk exception to return – The court is not bound by any findings of fact, assessment of evidence or decisions made by the court in the State of habitual residence, and can refuse to order the return of the child on the basis of Article 13(1)(b) of the 1980 Convention.
SUMMARY
Summary available in
EN
Facts
The case concerned a child born in France and whose parents are French. The family was habitually residing in Luxembourg. Both parents had rights of custody over the child, and an order from the Luxembourg Court, dated September 28, 2015, organised the terms and conditions for the exercise of their parental rights. During the summer of 2018, the mother brought the child to France. The father filed a return application with the Luxembourg Central Authority and, on August 15, 2018, the public prosecutor (procureur de la République) brought proceedings against the mother before the District Family Court (juge aux affaires familiales du tribunal judiciaire) of Grenoble to obtain the return of the child to Luxembourg under the 1980 Convention. On November 29, 2018, the District Court in Luxembourg issued another decision, this time granting primary custody of the child to the father, because it considered that the mother had acted against the child’s best interests. The District Family Court of Grenoble ordered the return of the child to Luxembourg. The mother appealed this decision before the Court of Appeal (cour d’appel) of Grenoble. The Court of Appeal overturned the first instance decision on February 20, 2019, finding that the exception under Article 13(1)(b) applied. The father appealed this decision before the Supreme Court (Cour de Cassation).
Ruling
Appeal dismissed. The Supreme Court upheld the Court of Appeal decision not to return the child under Article 13(1)(b).
Grounds
Grave Risk - Art. 13(1)(b)
The father, in his appeal before the Supreme Court, highlighted that the Luxembourg court remained competent to take measures related to the rights of custody of the parents and that it had decided to grant him primary custody of the child on November 29, 2018. He claimed that the judges in France should have taken the decision of the District Court in Luxembourg into account and ordered the return of the child.
The Supreme Court took into consideration the Court of Appeal’s findings of the father’s violent conduct, noting the considerable evidence showing his obsessive and controlling behaviour. The Supreme Court also took into consideration the reports on the child showing the anxious, fearful state of the child, who threatened to commit suicide if returned to his father in Luxembourg.
The French Supreme Court found that the Court of Appeal was not bound by the Luxembourg decision or by its assessment of the evidence presented before it, and upheld the Court of Appeal’s decision to refuse the child’s return based on a finding of grave risk of physical and psychological harm under Article 13(1)(b).
Author: Camille Druilhet
COMMENTARY
In its Recueil annuel des études published in 2023 (page 14), the Supreme Court noted that the judge ruling on the return request is not bound by the grounds of a foreign custody decision. It can, however, take such decisions into account in accordance with Article 17 of the 1980 Convention.