11 January 2019
Cuestiones procesales |
Apelación desestimada, restitución ordenada
one child wrongfully removed at age 8 – National of Chile –unmarried parents – Father national of Chile – Mother national of Chile – Agreement that the “cuidado personal” is solely attributed to the mother, but in fact it is exercised by both – Child lived in Chile until 14 August 2017 – Application for return filed with the courts of Switzerland on 19 September 2018 – Return ordered – Main issue: costs – Appeal of the father regarding costs has been dismissed based on interpretation of Article 26.
By decision of the 27 November 2018 the High Court of the Canton of Schwyz (first instance in child abduction cases) ordered the return of the child to Chile. With reference to Article 26(2) of the Convention, it did not charge any court costs. However, on the basis of Article 26(4) it ordered the mother to pay the applicant father his party costs (which include the reimbursement of necessary outlays, the costs for professional representation) and travel expenses. The court then dismissed the father’s application for free legal assistance as being without merit.
On 5 December 2018 the father appealed this decision regarding the granting of free legal assistance before the Swiss Federal Supreme Court which confirmed the decision of the High Court of the Canton of Schwyz.
The mother appealed the decision of the High Court of the Canton of Schwyz which is matter of the decision of the Swiss Federal Supreme Court 5A_982/2018 of the 11th of January 2019.
The father’s appeal was dismissed and the decision of the High Court of the Canton of Schwyz (first instance) was confirmed. The father cannot claim payment of his party costs based on Article 26(2).
As an alternative to covering all costs out of the court’s cashier, Article 26(4) offers the possibility for the court to “direct the person who removed or retained the child, […] to pay necessary expenses incurred by or on behalf of the applicant, including […] the costs of legal representation of the applicant, and those of returning the child.” In such cases, a party can file a request for free legal assistance, which, however, only covers the cost of one’s one legal representation. The court has not violated Article 26(2) by applying its paragraph 4. The father could have applied for free legal assistance, but he has not laid out that he would have a need for it.
Furthermore, the collection risk (brought forward by the father) hardly exists in the view of the financial circumstances at hand and in any case, this risk inevitably arises from Article 26(4).