31 July 2018
Traslado y retención - arts. 3 y 12 |
Apelación desestimada, restitución ordenada
one child wrongfully retained between age 4 and 5– National of unknown –unmarried parents – Father national of unknown – Mother national of unknown – Shared parental responsibility – Child lived in Portugal until 10 March 2017 – Application for return filed with the courts of Switzerland on 23 April 2018 – Return ordered – Main issue: Removal and Retention – The father could not prove that the mother had given her consent for the child to remain in Switzerland and the mother filed an appeal within the one year period set out in Article 12.
The girl, born in 2012, was between 4 and 5 years old at the time of the wrongful retention in Switzerland.
The parents were not married and lived separately since 2015. In 2016 the parents agreed to have shared parental authority.
The parents agreed (in writing), that the girl should spend her holidays from 13 March 2017 to 23 April 2017 with her father in Switzerland. After 23 April 2017 the father did not return the child as agreed.
The mother sent a request for return to the Portuguese Central Authority. She then directly introduced a procedure for return of the child in Switzerland on 23 April 2018 before the High Court of the Canton of Aargau (first instance in child abduction cases). On 21 June 2018 the High Court of the Canton of Aargau ordered the return. This decision was appealed by the father, who filed an appeal on 9 July 2018 before the Swiss Federal Supreme Court, which confirmed the decision of the High Court of the Canton of Aargau.
The fathers appeal was dismissed and the decision of the High Court of the Canton of Aargau (first instance in child abduction cases) was confirmed. Return ordered, wrongful retention.
The Swiss Federal Tribunal decided that the retention was wrongful since the father did not prove that the mother had agreed to the child staying in Switzerland. Furthermore, the one year period of Article 12 started to run on the day the child should have been back in Portugal which was 24 April 2018. Taking into consideration the goal of Article 12 the Swiss Federal Tribunal interpreted that even though Article 12 states “less than one year” the time limit is not less than a year but a year. The Swiss Federal Supreme Court did, however, not decide whether the appeal has to be filed before the court or if (in accordance with the Swiss Civil Procedural Code) posting the appeal at the post office on the day which marks the one year period is sufficient. Since the appeal arrived on the last day of the time period before the High Court of the Canton of Aargau and therefore the time period of one year had not elapsed.