Buscador de jurisprudencia

The parents got married in the U.S.A. in September 2014. They had two daughters, one born in December 2015, the other in August 2017. Following the parents’ divorce in 2017 the children lived with their mother. Initially, the parents had joint custody of the two children.

In December 2017 the mother brought forward an allegation of sexual abuse against the father, after he had had access to the children. Following this, the parents entered into an agreement, confirmed by the court, in which they continued to have joint rights of custody and the father had rights of access and whereby any move involving the children could only take place with a court decision in the event that the other parent disagreed.

In September 2018 the father then failed to return the children as agreed after an access visit. As a result of this, the court made an emergency decision provisionally awarding the mother sole custody. On 13 December 2018 an oral hearing took place on the issue of custody, although this was adjourned until 28 December 2018. Having applied for the hearing to be postponed, the mother moved the children to Germany, travelling to London on 26 December and then on to Germany, arriving on the evening of 31 December 2018. In its order dated 31 December 2018, the U.S. Court awarded the father sole custody of the children, and confirmed this decision in an order dated 1 April 2019.

The court ordered the return of the children to the State of Connecticut, United States of America, within two weeks of the order becoming final and binding.

Removal and Retention - Arts 3 and 12

The court was of the view that the mother was not authorized to move with the children to Germany without the father’s prior consent. The court’s emergency decision was not associated with permission to move with the children to Germany; furthermore, the decision was only provisional. The mother avoided the court proceedings which were ongoing to review the decision, by leaving the U.S. before the second hearing. In any event, the children can be said to have been wrongfully retained once the father had had sole rights of custody transferred to him on 31 December 2018, and certainly once the order had been issued on 1 April 2019. Also, in the view of the court, the children had not established a new habitual place of residence during their three-month stay in Germany, and the mother should have expected that the provisional transfer of custody would be modified during the ongoing court proceedings, meaning that it was to be expected that her actions would be adjudged to be wrongful retention as per ECJ precedent.

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

The fact that a U.S. court, after the submission of a report from a child psychiatric clinic left the joint custody arrangement unaltered and awarded the father a right to have access to the children unsupervised was viewed by the Court to mean that the allegations of sexual abuse were without foundation and thus could not prevent the return. The child’s alleged disclosure as to the perpetrator, which happened to occur the day before the hearing, along with further details of an event which had occurred two years previously, was said to be utterly implausible and not worthy of any further consideration.