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AFFAIRE

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Nom de l'affaire

CA Paris, 5 octobre 2005, No de RG 2005/16526

Référence INCADAT

HC/E/FR 1009

Juridiction

Pays

France

Nom

Cour d'appel de Paris, Première Chambre, Section C

Degré

Deuxième Instance

États concernés

État requérant

Hongrie

État requis

France

Décision

Date

5 October 2005

Statut

Définitif

Motifs

Droit de garde - art. 3 | Risque grave - art. 13(1)(b) | Règlement Bruxelles II bis (Règlement (CE) No 2201/2003 du Conseil du 27 novembre 2003)

Décision

Recours rejeté, retour refusé

Article(s) de la Convention visé(s)

3 12 13(1)(b)

Article(s) de la Convention visé(s) par le dispositif

13(1)(b)

Autres dispositions
Art. 11 du Règlement Bruxelles II bis (Règlement CE 2201/2003)
Jurisprudence | Affaires invoquées

-

Publiée dans

-

RÉSUMÉ

Résumé disponible en EN | FR

Facts

The application concerned a child born on January 2, 2003. The family lived in Hungary until the parents separated in autumn 2003.

The parents entered into an agreement, approved by a Hungarian tribunal on June 9, 2004, according to which the child [Translation] "would be educated and cared for by the mother," and the father would enjoy visitation rights and agreed that the child would not [Translation] "be taken abroad without the prior consent of the parties and for only one month until the age of 14." On an unspecified date, the mother took the child to France.

On July 21, 2004, the father went to the Hungarian Central Authority to request the return of the child. On June 22, 2005, the Tribunal de grande instance [ordinary court of first instance] of Paris found that the removal was wrongful but refused to order the return based on article 13(1)(b). The Public Prosecutor appealed this decision.

Ruling

Appeal dismissed and return refused. The abduction was wrongful but there was a grave risk that ordering a return would expose the child to harm. It had not been established that the Hungarian authorities could ensure the protection of the child.

Grounds

Rights of Custody - Art. 3

- Art. 3
 The Court referred to the terms of the parental agreement apporved on June 9, 2004, and noted the content of Hungarian law as established by the certificate of a foreign land, dated August 18, 2004. The Court concluded that the mother, who took the child to France on an extended stay without either the consent of the father or an order from the court, was responsible for a wrongful abduction.

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

The Court considered, as did the judge at first instance, on the basis of multiple testimonies, that the father was a violent man and that he had threatened to kill the child (and the mother) on several occasions. The Court observed that those threats were even made in autumn 2005.

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

The Court noted that Article 11(4) of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) provided that the judge hearing a return application could not refuse to order a return of the child on the basis of a grave risk of harm if it was established that adequate steps had been taken to ensure the protection of the child following his/her return.

The Public Prosecutor had produced a certificate issued by the Hungarian Ministry of Justice attesting that under the Hungarian constitution and laws the protection of the child is a priority. However, the Appeal Court indicated that the mere noting of legislative provisions does not demonstrate that adequate concrete steps addressing the real situation of the child have been taken to mitigate the risk to the child on return.

It had not been established that specific, concrete and adequate steps addressing the real situation of the child had been taken. The Court denied the mechanic and formal application of Article 11(4) of the Regulation and ruled that the judge at first instance rightly refused to order the return of the child.