18 December 2012
Residencia habitual - art. 3 | Derechos de custodia - art. 3 | Grave riesgo - art. 13(1)(b) | Interpretación del Convenio
Apelación desestimada, restitución ordenada
The father, a Norwegian national, and the mother, a Brazilian national, married and had two children, born in 2000 and 2002. Both children were born in Norway, where the family resided. The couple separated in 2003.
In 2004, the family resided in Brazil for five months to try living in the country. In December 2004, the father returned to Norway with the children without the knowledge or consent of the mother.
The mother returned to Norway in 2005. Custody proceedings were held in Norway. The Norwegian Court decided to grant sole custody of the children to the father in June 2006 and establish the children's residence in that country.
In October 2006, the mother travelled with both children to Brazil. Alleging wrongful removal, the father applied for the return of the children under the 1980 Hague Convention.
A First Instance decision ordered the return of the children to Norway, which was upheld in Second Instance. The mother then sought to revert the decision at the Superior Appellate Court (Superior Tribunal de Justiça).
Appeal dismissed and return ordered.
The Court found that the period of time the children lived in Brazil in 2004 did not change their domicile. There was a verbal agreement that the permanence of the children and the father in Brazil was conditioned to adaptation in the country. The Court noted that both parents kept family and work links in Norway.
The Court stated that the habitual residence for the Child Abduction Convention purposes is where the child had her/his roots and was living permanently.
The Court found that the father effectively exercised custody rights when the children were taken by the mother to Brazil in 2006, characterizing the wrongful removal.
The Court noted that Articles 12 and 13 together fundamentally protect the wellbeing of the child. Such dispositions are in harmony with Article 227 of the Brazilian Federal Constitution.
None of the hypotheses of non-return described in Article 13 of the Convention was found in the case, including no indication that the children would be subject to physical or psychological harm upon return to Norway.
The primary purpose of the 1980 Hague Convention is to protect the wellbeing of children, allowing them to enjoy security in their family relations, at the same time as it works as a disincentive to parents to engage in abductions. Such protection is incorporated by the Democratic State governed by the rule of law, which protects the family and children as one of its main objectives (Article 227 of the Brazilian Federal Constitution). In promoting the lawful exercise of parental relations, preserving family ties and disregarding unilateral acts which can compromise such relations, the Hague Convention protects the best interests of children and preserves the dignity of their human condition.