AFFAIRE

Télécharger le texte complet ES

Nom de l'affaire

XX c/ ZZ s/ reintegro de hijos

Référence INCADAT

HC/E/UY 1322

Juridiction

Pays

Uruguay

Degré

Deuxième Instance

États concernés

État requérant

Espagne

État requis

Uruguay

Décision

Date

6 February 2015

Statut

Définitif

Motifs

Objectifs de la Convention - Préambule, art. 1 et 2 | Risque grave - art. 13(1)(b) | Questions procédurales

Décision

Recours accueilli, retour refusé

Article(s) de la Convention visé(s)

3 12 13(1)(b) 20

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

13(1)(b)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans

-

INCADAT commentaire

Exceptions au retour

Risque grave de danger
Allégations de mauvais traitement et abus sexuel

RÉSUMÉ

Résumé disponible en EN | ES

Facts

The case concerned a boy born on 6 November 2010 in Spain to unmarried parents. In May 2014, the mother travelled to Uruguay, without the father´s consent, with the child and with her other son born of a different relationship. She argued that they had left Spain looking for protection and safety because of the violent situation that they had been undergoing there due to the father's behaviour. The father requested the return of the child to Spain.

On 5 December 2014, the first instance court in Uruguay refused the return of the child to Spain. The judge considered that even though the removal had been wrongful, return would not be ordered because the experts' reports and other evidence presented by the mother showed that the return would expose the child to a grave risk of physical or psychological harm, or to an intolerable situation (Art. 13(1)(b) of the 1980 Hague Child Abduction Convention).

The father appealed, arguing that the wrongful removal had been proved and that the psychological report had been based on the mother's allegations.

Ruling

Appeal allowed; return refused.

Grounds

Aims of the Convention - Preamble, Arts 1 and 2


The Court referred to the Explanatory Report to the 1980 Hague Child Abduction Convention by Professor Perez-Vera and remarked that the Convention, as well as the Uruguayan law that regulates these proceedings, stands on the principle of the best interest of the child.

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


The Court took into account the testimonies of the mother's witnesses and the psychological report of the mother and the children, in which the experts concluded that they had been victims of family violence when they lived in Spain. Among the witnesses, the mother's brother, who had lived with the family in Spain, reported some violent episodes that he had witnessed, as well as the father´s cocaine use and his ties to terrorist group ETA.

The Court stated that the admissibility of the grave risk exception had to be absolutely restrictive and the risk had to be evaluated with the utmost care. The Court held that not only the child's exposure to an intolerable situation if returned to the habitual residence had to be considered, but also, if the risk were to be proved, whether such risk could be prevented or avoided by mechanisms or specific protection measures in the requesting State.

The Court considered that the alleged risk of harm existed and held that, according to the evidence of the case, there was a risk that the child would be placed in an intolerable situation which represented a risk of greater harm than having to leave his habitual residence in Spain. In addition, the available protection measures in the legal system and the social network of the State of habitual residence would not have been sufficient to mitigate the risk.

The father noted that the mother had not filed a complaint of domestic violence in Spain even though she had had the possibility of doing so. The Court considered it adequate to remark on the fact that protection measures objectively offered in a community are sometimes not readily available or accessible. Thus, the Court held that the mother had not had effective access to adequate protection measures to make the complaint: she was alone in Spain because her relatives had returned to Uruguay.

Besides, even when they had been in Spain, their presence had not been sufficient to protect them because she did not allow them to intervene out of fear. In addition, the fact that they lived in a small town prevented the mother from filing a complaint against the father there. Consequently, the Court rejected the father's arguments and affirmed the non-return decision of the first instance court.

In addition, the Court considered that, according to the experts' reports, the child was settled in the new family and social environment, where he was properly taken care of. Besides, the child did not include a father figure in the activities conducted during the assessment.

Procedural Matters


As the child refused to give testimony in the judge's interview, his parents asked for the child and his brother to be excused from the hearing. Therefore, the Court held that the children's opinions would have to be taken from the experts' reports so as to comply with Article 19 of Law No. 18.895. The Court took into account both the 1980 Hague Child Abduction Convention and Law No. 18.895 which regulates the procedural aspects of return proceedings internally in Uruguay.

The Court evaluated the father's procedural behaviour throughout the proceedings in which he had not objected to the mother's arguments after the grave risk allegation had been raised; he only stated that she had not provided proof to back her arguments and that she had not filed the complaint in Spain. The Court also considered that the father did not offer any commitments to ensure the child's safe return to Spain or any other necessary guarantees for the family during the custody proceeding in Spain.

Author of the summary: Professor Nieve Rubaja and Antonela Rojas, Argentina

INCADAT comment

Allegations of Inappropriate Behaviour / Sexual Abuse

Courts have responded in different ways when faced with allegations that the left-behind parent has acted inappropriately or sexually abused the wrongfully removed or retained children. In the most straightforward cases the accusations may simply be dismissed as unfounded. Where this is not possible courts have been divided as to whether a detailed investigation should be undertaken in the State of refuge, or, whether the relevant assessment should be conducted in the State of habitual residence, with interim measures being taken to attempt to protect the child on his return.

- Accusations Dismissed:

Belgium

Civ. Liège (réf) 14 mars 2002, Ministère public c/ A [INCADAT Reference: HC/E/BE 706]

The father claimed that the mother sought the return of the child to have her declared mentally incapable and to sell her organs. The Court held, however, that even if the father's accusations were firmly held, they were not backed up by any evidence.
 
Canada (Québec)
Droit de la famille 2675, No 200-04-003138-979 [INCADAT Reference: HC/E/CA 666]
 
The Court held that if the mother had serious concerns with regard to her son, then she would not have left him in the care of the father on holiday after what she claimed there had been a serious incident.
 
J.M. c. H.A., Droit de la famille, No 500-04-046027-075 [INCADAT Reference: HC/E/CA 968]

The mother claimed that a grave risk arose because the father was a sexual predator.
The Court noted that such allegations had been rejected in foreign proceedings. It equally drew attention to the fact that Convention proceedings concerned the return of the child and not the issue of custody. The fears of the mother and of the maternal grandparents were deemed to be largely irrational. There was also no proof that the judicial authorities in the State of habitual residence were corrupt. The Court instead expressed concerns about the actions of members of the maternal family (who had abducted the child notwithstanding the existence of three court orders to the contrary) as well as the mental state of the mother, who had kept the child in a state of fear of the father.

France
CA Amiens, 4 mars 1998, No de RG 5704759 [INCADAT Reference: HC/E/FR 704]

The Court rejected the allegation of physical violence against the father; if there had been violence, it was not of the level required to activate Article 13(1)(b).

New Zealand
Wolfe v. Wolfe [1993] NZFLR 277 [INCADAT Reference: HC/E/NZ 303]

The Court rejected arguments by the mother that the father's alleged sexual practices would place the child at a grave risk of harm. The Court held that there was no evidence a return would expose the child to the level of harm contemplated under Article 13(1)(b).

Switzerland
Obergericht des Kantons Zürich (Appellate Court of the Canton Zurich), 28/01/1997, U/NL960145/II.ZK [INCADAT Reference: HC/E/CH 426]

The mother argued that the father was a danger to the children because, inter alia, he had sexually abused the daughter. In rejecting this accusation, the Court noted that the mother had previously been willing to leave the children in the father's sole care whilst she went abroad.

- Return ordered with investigation to be carried out in the State of habitual residence:

United Kingdom - England and Wales

N. v. N. (Abduction: Article 13 Defence) [1995] 1 FLR 107 [INCADAT Reference: HC/E/UKe 19]

The possible risk to the daughter needed to be investigated in the pending custody proceedings in Australia. In the interim, the child needed protection. However, this protection did not require the refusal of the application for her return. Such risk of physical harm as might exist was created by unsupervised contact to the father, not by return to Australia.

Re S. (Abduction: Return into Care) [1999] 1 FLR 843 [INCADAT Reference: HC/E/UKe 361]

It was argued that the allegations of sexual abuse by the mother's cohabitee were of such a nature as to activate the Article 13(1)(b) exception. This was rejected by the Court. In doing this the Court noted that the Swedish authorities were aware of the case and had taken steps to ensure that the child would be protected upon her return: she would be placed in an analysis home with her mother. If the mother did not agree to this, the child would be placed in care. The Court also noted that the mother had now separated from her cohabitee.

Finland
Supreme Court of Finland 1996:151, S96/2489 [INCADAT Reference: HC/E/FI 360]

When considering whether the allegations of the father's sexual abuse of his daughter constituted a barrier to returning the children, the Court noted that one of the objectives of the Hague Child Abduction Convention was that the forum for the determination of custody issues was not to be changed at will and that the credibility of allegations as to the personal characteristics of the petitioner were most properly investigated in the spouses' common State of habitual residence. In addition, the Court noted that a grave risk of harm did not arise if the mother were to return with the children and saw to it that their living conditions were arranged in their best interests. Accordingly, the Court found that there was no barrier to the return of the children.

Ireland
A.S. v. P.S. (Child Abduction) [1998] 2 IR 244 [INCADAT Reference: HC/E/IE 389]

The Irish Supreme Court accepted that there was prima facie evidence of sexual abuse by the father and that the children should not be returned into his care. However, it found that the trial judge had erred in concluding that this amounted to a grave risk of harm in returning the children to England per se. In the light of the undertakings given by the father, there would be no grave risk in returning the children to live in the former matrimonial home in the sole care of their mother.

- Investigation to be undertaken in the State of refuge:

China - (Hong Kong Special Administrative Region)
D. v. G. [2001] 1179 HKCU 1 [INCADAT Reference: HC/E/HK 595]

The Court of Appeal criticised the fact that the return order had been made conditional on the acts of a third party (the Swiss Central Authority) over whom China's (Hong Kong SAR) Court had neither jurisdiction nor control. The Court ruled that unless and until the allegations could be discounted altogether or after investigation could be found to have no substance, it was almost inconceivable that the trial court's discretion could reasonably and responsibly be exercised to return the child to the environment in which the alleged abuse took place.

United States of America
Danaipour v. McLarey, 286 F.3d 1 (1st Cir. 2002) [INCADAT Reference: HC/E/USf 459]

The Court of Appeals for the First Circuit ruled that great care had to be exercised before returning a child where there existed credible evidence of the child having suffered sexual abuse. It further stated that a court should be particularly wary about using potentially unenforceable undertakings to try to protect a child in such situations.

Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) [INCADAT Reference: HC/E/USf 971]

The District Court had appointed an independent expert in paediatrics, child abuse, child sexual abuse and child pornography, to assess whether the photographs of the sons constituted child pornography and whether the behaviour problems suffered by the children were indications of sexual abuse. The expert reported that there was no evidence to suggest that the father was a paedophile, that he was sexually aroused by children, or that the pictures were pornographic. The expert approved of the German investigations and stated that they were accurate assessments and that their conclusions were consistent with their reported observations. The expert determined that the symptoms that the boys displayed were consistent with the stress in their lives caused by the acrimonious custody dispute and recommended that the boys not undergo further sexual abuse evaluation because it would increase their already-dangerous stress levels.

- Return Refused:

United Kingdom - Scotland

Q., Petitioner [2001] SLT 243 [INCADAT Reference: HC/E/UKs 341]

The Court held that there was a possibility that the allegations of abuse were true. It was also possible that the child, if returned, could be allowed into the unsupervised company of the alleged abuser. The Court equally noted that a court in another Hague Convention country would be able to provide adequate protection. Consequently it was possible for a child to be returned where an allegation of sexual abuse had been made. However, on the facts, the Court ruled that in light of what had happened in France during the course of the various legal proceedings, the courts there might not be able or willing to provide adequate protection for the children. Consequently, the risk amounted to a grave risk that the return of the girl would expose her to physical or psychological harm or otherwise place her in an intolerable situation.

United States of America
Danaipour v. McLarey, 386 F.3d 289 (1st Cir. 2004) [INCADAT Reference: HC/E/USf 597]

Having found that sexual abuse had occurred, the Court of Appeals ruled that this rendered immaterial the father's arguments that the courts of Sweden could take ameliorative actions to prevent further harm once the children had been returned. The Court of Appeals held that in such circumstances, Article 13(1)(b) did not require separate consideration either of undertakings or of the steps which might be taken by the courts of the country of habitual residence.

(Author: Peter McEleavy, April 2013)