8 September 2020
Sujeto a apelación
Traslado y retención - arts. 3 y 12 | Interpretación del Convenio
Apelación desestimada, restitución ordenada
The child was born in 2011 in Spain of a Brazilian mother and Spanish father.
In 2013, the family lived in Brazil for a while. In 2014, the father, mother and child returned to Spain. However, the mother and child established their residence in a different city from the father. The child enrolled at school in Spain for the 2014/2015 term.
The mother travelled with the child to Brazil in September 2014. The father contacted the Central Authority of Spain in October 2014, alleging wrongful removal under the 1980 Child Abduction Convention.
Judicial proceedings seeking the return of the child were initiated in Brazil in 2015 by the State Attorney of the Federal Government (União).
The First Instance decision denied the application of the Hague Convention on the grounds that the country of habitual residence of the child was Brazil. The First Instance decision was overturned by the Second Instance judgment, which ordered the return of the child to Spain. The mother sought to review the decision ordering the return at the Superior Appellate Court (Superior Tribunal de Justiça).
Appeal dismissed, return ordered.
The Court found it unviable to analyse the allegation of de facto custody of the mother at the Superior instance. The lower Court decision had already analysed the evidence and recognised that Spain was the country of habitual residence of the child, where the family moved intending to stay in 2014. The Court found that the wrongful removal was characterised, relying on the analysis of the evidence by the lower Court, which established that the taking of the child by the mother to Brazil in 2014 happened without the consent of the father.
Article 12 of the Convention establishes the duty to return the child forthwith if a period of less than one year has elapsed at the date of the commencement of the proceedings, counting from the date of the wrongful removal or retention. The Court found that the exceptions to order the return are to be interpreted narrowly to allow the Convention to fulfil its purpose. The Court noted that the duration of proceedings is not to be considered for the effect of the one-year timeframe under Article 12. The Court concluded that only very exceptional circumstances would authorise not ordering the return, for example, the excessive length of the proceedings in light of particular circumstances of the case, such as the separation of siblings.
In this case, the removal happened in September 2014. The Central Authority of Spain was contacted in October 2014, which transmitted the request for cooperation to the Brazilian Central Authority in February 2015. The proceedings were undoubtedly commenced in less than one year since the wrongful removal.