CASE

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Case Name

7Ob596/93, Oberster Gerichtshof

INCADAT reference

HC/E/AT 563

Court

Country

AUSTRIA

Name

Oberster Gerichtshof

Level

Superior Appellate Court

Judge(s)
Dr Warta (Pdt), Dr Niederreiter, Dr Schalich, Dr Tittel, Dr Huber

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

AUSTRIA

Decision

Date

27 October 1993

Status

Final

Grounds

Grave Risk - Art. 13(1)(b) | Procedural Matters

Order

Appeal dismissed, return refused

HC article(s) Considered

1 2 3 12 13(1)(b) 19

HC article(s) Relied Upon

13(1)(b)

Other provisions
Austrian Substantive Law
Authorities | Cases referred to
7 Ob 573/90; EFSlg 52.796; EFSlg 16.707; 1 Ob 580/92 (NRsp 1992/247); EFSlg 61/397; Petrasch, Der Weg zum Obersten Gerichtshof nach erweiterten Wertgrenzen-Novelle 1989, p. 743 et seq..

INCADAT comment

Implementation & Application Issues

Procedural Matters
Requirement of Expedition (art. 11)

SUMMARY

Summary available in EN | FR

Facts

The parents of the two children concerned were married in Austria in 1983. In October 1988 the family settled in the United States of America. In December 1989 the mother left the family home. The children remained with their father until the mother decided to take care of them during the second half of 1990. At the start of the following year, the mother, whose professional activities were very time-consuming, entrusted the children to the father once again.

On 26 March 1991 a court of the District of Cook (Illinois) pronounced the parents' divorce and decided that the parents would have joint custody, with physical custody nevertheless attributed to the father and a right of access to the mother. Each of the parents was prohibited from taking the children outside the jurisdiction of the court for a long period of time. At the beginning of July 1992 the father asked the mother if she could take care of the children for a period of two weeks during his honeymoon.

On 17 July the mother took the children to Austria, where she then wished to settle. On 20 August 1992 the father applied for return of the children. On 8 September the mother filed an application for custody of the children with the District Court (Bezirksgericht) of Linz. On 27 May 1993, after approximately 9 months of proceedings, the same Court dismissed the father's application for return. The Court considered that the children were now in the most stable situation they had known since their birth. They were at school and were well integrated.

Return would subject them to a serious risk of psychological harm, as they would be separated from the person who had the greatest importance in their lives and taken to an unfamiliar environment. The mother was moreover the subject of a warrant for arrest for child abduction in the United States.

On 2 September 1993 the Regional Court (Landesgericht) of Linz confirmed the decision at first instance: the removal was wrongful but the conditions for application of the exception of Article 13(1)(b) were met. The father appealed to the Supreme Court of Austria (Oberster Gerichtshof).

Ruling

Appeal dismissed and return refused; a grave risk of harm had been established to the standard required by Article 13(1)(b).

Grounds

Grave Risk - Art. 13(1)(b)

The father considered that the judges on the merits should not have concluded that to return the children would subject them to a serious risk of harm. In particular, he indicated that if it could be affirmed that the children were integrated in their new environment, this was because of the lengthy duration of the proceedings and added that the Convention did not allow this element to be taken into account in that case. The Supreme Court held that it could not be contested that the children had their habitual residence in the United States at the time of the removal and that the father had custody of them at the time. The Court added that where the aim of the Convention was to restore the status quo ante, it did not deny that some objective conditions can be of such a nature as to justify refusal to order the return in certain exceptional cases. Return of the children in this case met the conditions for application of the exception provided by Article 13, paragraph 1 b, and the Convention did not in any case provide for the risks the children might be subjected to not to be taken into account in the hypothetical situation where they might result from a long stay in the country to which they had been taken. It was true that lengthy proceedings were contrary to the spirit of the Convention, but they certainly did not allow for the possible consequences of a serious risk of harm in the event of return not to be considered.

Procedural Matters

The father submitted that the proceedings should be considered void as they had not been heard by the court at first instance. However, recalling that the aim of speediness of the Hague Convention did not allow for systematic hearing of the parent who was the victim of the abduction, the Court explained that since a decision of its First Chamber in 1992, it should be considered that the proceedings could not be annulled simply because an irregularity had affected the proceedings at first instance, as long as this irregularity had not been reproduced during the appeal proceedings.

INCADAT comment

Requirement of Expedition (art. 11)

Preparation of INCADAT commentary in progress.