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Nombre del caso
F. C. del C. F. c/ T. R. G. s/ Reintegro de hija
Referencia INCADAT
HC/E/AR 1340
Tribunal
Argentina
última instancia
Estados involucrados
México
Argentina
Fallo
21 May 2013
Definitiva
Residencia habitual - art. 3 | Grave riesgo - art. 13(1)(b) | Objeciones del niño a la restitución - art. 13(2) | Cuestiones procesales
Apelación concedida, restitución ordenada
Convención sobre los Derechos del Niño, Convención Interamericana sobre Restitución Internacional de Menores
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INCADAT comentario
Interrelación con instrumentos internacionales y regionales y Derecho interno
Convención Interamericana
SUMARIO
Sumario disponible en
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Facts
The parents agreed that the father would take the child to Mexico to see the mother. To that end, the mother signed a travel authorisation dated 3 March 2003. In December of the same year, the four-year-old child arrived in Mexico with the father. The father decided to settle down in Mexico as well.
In August 2009, the father and the child travelled to Buenos Aires. On 23 August, the mother learnt that the child had been removed. She submitted an application under the 1980 Hague Convention with the Central Authority in Mexico, which transmitted it to the Central Authority in Argentina, where it was received on 15 January 2010. The father did not contest the return application.
The First Instance Court in Argentina considered that the mother had not authorised the trip to Argentina and that the father and the child had left during the holidays which were supposed to take place within Mexico. As a consequence, return was ordered.
The father appealed the decision. On 7 March 2012, the Appeals Court confirmed the first instance decision. It found that the removal was wrongful and that the child should return to Mexico. The father submitted an extraordinary appeal to the Supreme Court of Justice.
Ruling
Grounds
Habitual Residence - Art. 3
Having formally admitted the extraordinary appeal by the father, the Supreme Court of Justice held that the child's habitual residence before the wrongful removal was in Mexico.
Grave Risk - Art. 13(1)(b)
The Supreme Court of Justice examined whether there was a grave risk that the child would be placed in an "intolerable situation" upon return (Article 13(1)(b) of the Convention). The Court first considered the new alienation the child would face if returned to Mexico.
Acknowledging that children are the ones who suffer the most in these circumstances, the Court noted, however, that, in order to dismiss the request for return on the basis of Article 13(1)(b), it was necessary that the child suffer a greater distress than the one normally suffered when not living with one of its parents anymore, and held that a greater distress could not be established in this case.
The Court further discussed the statement of the child that the mother used to beat her whenever she got nervous, argued with her, criticised everything she did, quickly lost her temper and mistreated her. The Court held that this statement should not to be taken lightly and that no details or proof have been provided.
The Court also noted that the father did not provide more details or proof but that he only addressed the alleged domestic violence by referring to the child's statement. The Court held that the child's statement was not sufficient to establish the grave risk exception.
The Court further considered whether the father's refusal to return with the child could establish an exception to return under Article 13(1)(b). The father argued that, if returned without him, the child would lose contact with him. The Court found that this submission was vague and unsubstantiated and that, in general, a taking parent cannot decide unilaterally whether the child is to return or not to the State of habitual residence by refusing to return with the child.
The Court concluded that the father's refusal to return with the child could not establish the exception under Article 13(1)(b). In conclusion, the Court held that the exception in Article 13(1)(b) had not been established.
Objections of the Child to a Return - Art. 13(2)
Upon a submission from the Child Advisor (Defensor Oficial), the Court considered whether the child's statement that it did not want to go back to Mexico could be qualified as an objection to return under Article 13(2).
The Court stated that to establish the exception to return under that Article, the child's objection must be based on qualified arguments regarding return to the State of habitual residence, i.e., it must not be based on mere preference or refusal, but on a genuine objection, understood as an uncompromising opposition towards return.
However, it found that based on the facts of the case and on the child's statements, it was not possible to deduce a rigid attitude of the child to resist return. According to the Court, the child did not show a resolute refusal towards returning to Mexico but merely expressed a greater preference to live with her father. The Court also noted that, over the course of the proceedings, the father and the child had also expressed an intention to return to Mexico. Thus, the Court did not find the exception in Article 13(2) to be established.
In conclusion, the Supreme Court found that the removal was wrongful and that none of the exceptions in the Convention had been established. In this the Court agreed with most of the submissions of the General Attorney. The Court confirmed the previous decisions and ordered the return of the child to Mexico.
Procedural Matters
It took about three years from the filing of the return petition until the Supreme Court rendered its judgment. The child was thirteen years old at the time the judgment was issued and had spent about four years living in Argentina with her father.
During the proceedings, the Court analysed the applicable legal framework, i.e., the 1980 Hague Convention and the Inter-American Convention on the International Return of Children of Montevideo (Inter-American Convention).
The Court considered that the latter was applicable to this case in accordance with its Article 34 which states that "[a]mong the Member States of the Organization of American States that are parties to this Convention and to the Hague Convention of October 25, 1980 on the civil aspects of international child abduction, this Convention shall prevail. However, States Parties may enter into bilateral agreements to give priority to the application of the Hague Convention".
The Court also considered that both the 1980 Convention and the Inter-American Convention are aligned with the obligations set forth in Article 11 of the United Nations Convention on the Rights of the Child of 20 November 1989 and that it was appropriate to apply the basic principles of the 1980 Hague Convention which are in line with those of the Inter-American Convention.
With regard to the return order, the Supreme Court noted that both parents had to support the child equally and avoid the child's exposure to psychological harm. It required that the parents comply with the return order soon and show a reasonable attitude of support. The Court also issued a letter rogatory to the competent family court, requesting that the return proceedings be carried out in the least harmful way possible for the child and under conditions which would reduce any possible risks for the child.
The Supreme Court further ordered that the Central Authority in Argentina work in conjunction with the Mexican Central Authority to offer the necessary information, protection, legal, financial and social assistance to ensure the smooth return and acclimatisation of the child in Mexico (with her father, if possible) in the light of the particular circumstances it was experiencing.
Author of the summary: Professor Nieve Rubaja, Argentina
INCADAT comment
Inter-American Convention
Preparation of INCADAT commentary progress.