Buscador de jurisprudencia

The Applicant father and the Respondent mother are the married parents of a child born in 2021 and have joint custody of the child. They lived together in an apartment in southern Ukraine.  On 2 March 2022, following an air raid alert, the mother went to Germany with the child, without the consent of the father, and with the intention to stay there for an extended period of time.

The father argued that the mother had thereby violated his joint rights of custody.  He claimed the conditions of Article 13(1)(b) of the 1980 Hague Abduction Convention, which must be interpreted restrictively, were not fulfilled and the child should be returned to western Ukraine.  He would be able to ensure that the living expenses of mother and child were met there. Alternatively, the child could be returned to the Republic of Moldova.

In the mother's opinion, returning the child to a war zone would be too dangerous.  She stated the duration of the war was not foreseeable and because of the Applicant’s unreliability she could not trust him to cater for a secure living situation. Frequent air raid alerts would also have a negative impact on the child.

In the opinion of the Local Court, the removal was unlawful, but in the present case the Article 13(1)(b) exception applied due to the war and the return was refused.

The father appealed the decision.

The Applicant's appeal against the decision of the Local Court was rejected.

Removal and Retention - Arts 3 and 12

By leaving Ukraine with the child, the mother violated the father's joint rights of custody. He did not consent to this and did not authorise it. The removal was therefore wrongful pursuant to Articles 3 and 12 of the Convention.

Grave Risk - Art. 13(1)(b)

Returning the child to Ukraine would entail a grave risk of physical or psychological harm.  The hardship clause of Article 13(1)(b) is to be interpreted restrictively, meaning there must be a particularly severe threat to the child’s well-being. The general view is that this requirement is met if the child is to be returned to an area of on-going war or civil war and it is exposed to a real threat. The entire territory of Ukraine has been a war zone since 24 February 2022.  There is an official travel warning for the entire country and an increasing use of long-range weapons, which also hit western Ukraine and whose targets (possibly also civilian) cannot be predicted.  These acts of war are an endangerment of the child’s most fundamental legal rights and there is no end in sight. Consequently, there would be a serious risk of physical or psychological harm being caused to the child in the event of return. 

The child was also not habitually resident in the Republic of Moldova and so should not be returned there.  The Hague Convention aims to restore the "status quo ante", and so children should generally be returned to their state of habitual residence. Although the wording does not rule out the possibility of return to a third contracting state in exceptional cases, this was not found to apply in this case. Only in the state of habitual residence can a decision on continued residence be reached by the internationally competent court. In the present case, the child is not habitually resident in the Republic of Moldova and so the Moldovan courts do not have jurisdiction and to send the child there would not be justified under Article 12 of the Convention.