30 November 2016
Objeciones del niño a la restitución - art. 13(2) |
Apelación desestimada, restitución denegada
1 child allegedly wrongfully retained at age 13 – National of Brazil – Divorced parents– Father national of Brazil – Mother national of Brazil – Joint right to determine the residence of the child. Father has custody. – Child lived in Brazil until 31 October 2014 – Application for return filed with the Courts of Switzerland on 28 April 2016 – Return refused – Main issue: Objections of the Child to a Return – Child was mature enough for its opinion to be taken into consideration which constituted a reason to refuse the return based on Article 13(2).
The child, a girl, was 13 at the date of the alleged wrongful retention. She had lived in Brazil until the year 2007 in which she spent time in Switzerland with her mother before moving back to Brazil in March 2008 to live with her father. The parents were divorced and had joint rights of parental authority but the father had the sole right of custody as per a Brazilian court decision of the year 2012.
The parents agreed (in writing) that the child could spend a period of 8 month with its mother in Switzerland until 1 July 2015. The child did not return to Brazil after this period.
On 28 April 2016, the father initiated return proceedings at the High Court of the Canton of Geneva (first instance in child abduction cases).
On 9 September 2016, the High Court of the Canton of Geneva found that the retention had not been wrongful. The father appealed this decision on 26 September 2016 before the Swiss Federal Supreme Court.
The Federal Supreme Court dismissed the father’s appeal and confirmed the refusal for return. Return refused; the retention was wrongful, except Article 13(2) has been applied.
When the child was heard by the High Court of the Canton of Geneva, it was 14 years old and was mature enough to be heard. The alleged influence by the mother has not been established by the documents presented by the father. Furthermore, the child brought forward its social and scholarly integration in Switzerland in the last two years as well as the relations she has with her half-sister who lives in Switzerland. The thoughts of the child seemed serious and well thought through.