HC/E/FR 1002
France
Cour d'appel de Rouen, chambre de la famille
Deuxième Instance
Mexique
France
30 October 2008
Définitif
Droit de garde - art. 3 | Risque grave - art. 13(1)(b) | Engagements
Recours accueilli, retour ordonné
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The Court found that the family had been in Mexico since 2004. In applying Mexican law, it decided that the parents had joint parental authority and that they jointly exercised rights of custody within the meaning of article 5.
The mother relied both on the father's violent behaviour and on the existence of a grave risk of harm on return associated with the child being very young. She stated that the father's behaviour had become violent, incomprehensible and concerning since the birth of the child. She added that depriving the child of his mother whilst under the age of 18 months and in circumstances where he had lived with her for more than one year, would traumatize him.
The Court noted that under Article 16 it was not for it to decide the merits of the custody dispute; considering the wrongfulness of the retention, it was appropriate to order the return of the child unless the mother provided evidence that one of the exceptions was applicable.
In that regard, the Court could not rely on the explanations given by the mother as to the father's violent behaviour: the mother had relied on her own statements and on the testimonies of family members whose objectivity was questionable. In particular, the Court adopted the reasons of the first judge who dismissed the violence argument, noting also that the psychological examinations of the father did not reveal any disorders.
Moreover, the mother's reliance on the harm associated with the separation of a very young child from his mother was misplaced in that she herself was the one who caused this situation and deprived the child of his father.
Without formally acknowledging the father's proposals, the Court observed that, although the mother had until now refused them, he had made proposals to facilitate the return, proposals for living accommodation, for support for the mother and the child and for the care of the child while awaiting the Mexican judge to rule on the merits of custody.
The mother had not established the existence of a grave risk.
The father made proposals to the mother to facilitate the return: proposals for living accommodation, for support for the mother and the child and for the care of the child while awaiting the Mexican judge to rule on the merits of custody.
The Court refused to formally acknowledge them on the ground that [Translation] "such a formal acknowledgement would have no legal force," but took the proposals into account as part of the analysis of section 13(1)(b).