Buscador de jurisprudencia

The parents of the child, born in Switzerland in 2006, are not married. Shortly after the birth of the child, the mother moved with the child to Spain, where they lived with the father in a shared household for several years. In 2011, the parents separated, and the child lived alternating with his two parents. At the beginning of the year 2016, the mother travelled with the child to Switzerland without the father’s knowledge. In Spain, proceedings regarding custody were pending.

On 23 March 2016, the father applied for the return of the child to Spain. After hearing the parents and the child, the cantonal court ordered by decision of 23 June 2016 the return of the child to Spain. Shortly thereafter, the mother filed a complaint at the Swiss Federal Supreme Court arguing that the child was not willing to return to Spain. By decision of 16 August 2017, the Federal Supreme Court rejected the mother’s complaint and ordered the return of the child on 20 August 2016.

On 22 August 2016, the father requested the cantonal court to charge the local police with the immediate execution of the return of the child. On 3 September 2016, the mother requested the cantonal court to reject the aforementioned request of the father. Additionally, she requested the modification of the return order issued by the Swiss Federal Supreme Court to the effect that the child will not be returned to Spain. Based on an expert’s opinion attesting the child’s ability to independently form their opinion with respect to the return order, the cantonal court refused by decision of 6 February 2017 the return of the child to Spain. 

On 19 February 2017, the father appealed this decision at the Swiss Federal Supreme Court. 

The father’s appeal was dismissed. Nevertheless, the Swiss Federal Supreme Court has remitted the case to the cantonal court and has ordered a new hearing of the child in order to determine whether the child has the required maturity level to refuse the return to Spain.  

Objections of the Child to a Return - Art. 13(2)

According to the Swiss Federal Supreme Court, a child is considered to be mature within the meaning of Article 13 (2) when the child is capable of making an independent decision with respect to the return to the country of its previous habitual residence. This notably includes the ability of the child to recognise its own circumstances and consequently form its own opinion despite possible external influences that could manipulate the child. In order to avoid that the child merely conveys the opinion of its current primary caregiver, the Swiss Federal Supreme Court requires the child’s opposition to be argued with a certain degree of vigour and with comprehensible reasons.

As a rule of thumb, the Swiss Federal Supreme Court hereby presumes that such an ability is generally developed between 11 and 12 years old. If a child younger than that expresses an opinion with respect to the return order, this opinion has to be at the very least be taken into account by the competent court. 

With respect to the present case, the Swiss Federal Supreme Court stated that there are certain factors that can put the necessary maturity of the child into question. This can be the case if the child very suddenly expresses the wish not to return to its previous home country right before the execution of the return order opposed to consistently voicing its opinion throughout the procedure. Moreover, the fact that the mother of the child, and not the child itself despite having a representative, invoked the opposition of the child can be considered a further indication that the child did not form an independent opinion.

Author: Kathrin Burger