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CASE

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Case Name

M. v. K. 31/3/1999; District Court of Reykjanes, Iceland

INCADAT reference

HC/E/IS 367

Court

Country

ICELAND

Name

District Court of Reykjanes

Level

First Instance

States involved

Requesting State

SWEDEN

Requested State

ICELAND

Decision

Date

31 March 1999

Status

Final

Grounds

Rights of Custody - Art. 3 | Procedural Matters

Order

Return ordered

HC article(s) Considered

1 3 13(1)(b)

HC article(s) Relied Upon

3 12

Other provisions

-

Authorities | Cases referred to
The implementing legislation in Iceland for the Hague Convention, no. 160/1995, and the Icelandic Children Act, no. 20/1992, The decision of the district court of Mölndal, Sweden, 2 March 1998 and 16 December 1998.
Published in
http://www.hcch.net/incadat/fullcase/0367.htm

INCADAT comment

Article 12 Return Mechanism

Rights of Custody
Sources of Custody Rights

SUMMARY

Summary available in EN | FR | ES

Facts

The children, three siblings, were approximately 7, 8 and 10 years old at the date of the alleged wrongful removal. They had previously lived had lived in Sweden with their parents.

In March 1998 following the end of the marriage a Swedish court ordered that the parents should have joint custody, with the children living with the mother and having access with the father.

On 16 December 1998 a lower Swedish court ordered that the mother should have sole custody. The father appealed that decision but before the appeal was heard the mother took the children to Iceland on 25 January 1999.

On 8 February 1999 the appeal-court in Sweden decided that two of the children should remain in Sweden until a final decision had been reached on the custody issue.

On 4 March 1999 the father, through the Central Authorities in Sweden and in Iceland, filed a petition for return of the children in the District Court of Reykjanes, Iceland.

Ruling

Return ordered; the removal was in breach of rights of custody and was therefore wrongful.

Grounds

Rights of Custody - Art. 3

The court ruled that the parents had joint custody. Since the change of custody to the mother by the lower court was under appeal at the time of removal it ordered that the children should be returned to Sweden while the custody issue remained undecided.

Procedural Matters

A motion by the mother to stay the return order pending an expedited appeal to the Supreme Court was granted in the court order. However such an appeal has to be made within two weeks. No appeal was made.

INCADAT comment

Sources of Custody Rights

Preparation of INCADAT case law analysis in progress.