AFFAIRE

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Nom de l'affaire

DEFENSORÍA DE POBRES Y AUSENTES NRO. 1 s/ RESTITUCIÓN - RESTITUCIÓN INTERNACIONAL DE MENOR

Référence INCADAT

HC/E/AR 1516

Juridiction

Pays

Argentine

Degré

Première instance

États concernés

État requérant

Chili

État requis

Argentine

Décision

Date

3 November 2020

Statut

Définitif

Motifs

Déplacement et non-retour - art. 3 et 12 | Intégration de l'enfant - art. 12(2) | Risque grave - art. 13(1)(b) | Opposition de l'enfant au retour - art. 13(2) | Questions procédurales | Interprétation de la Convention |

Décision

Retour ordonné

Article(s) de la Convention visé(s)

3 13(1)(b) 13(2) 12(2)

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

3 13(1)(b) 13(2) 12(2)

Autres dispositions

Argentine Civil and Commercial Code; Convention on the Rights of the Child.

Jurisprudence | Affaires invoquées

-

Publiée dans

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SYNOPSIS

Synopsis disponible en EN | ES

Wrongful removal of a 7-year old girl – Chilean – unmarried parents – Chilean father – Argentine mother – custody rights belong with the father – the girl lived in Chile until late 2019 – return application submitted before the Family Court in Formosa, Argentina, in September 2020 – return ordered – main issues: removal and retention, settlement of the child, art. 13(1)(b) grave risk, objections of the child to the return, procedural matters, interpretation of the Convention – retention was wrongful because the custody rights of the father, effectively exercised by him at the time, were infringed – the time required by the Convention to refuse the return on grounds of settlement of the child in her new environment did not elapse – no evidence that the child would be exposed to grave risk upon her return – there were no objections by the child showing an irreducible objection against returning to the place of habitual residence – due to effects of the COVID-19 pandemic, the parents were invited to cooperate in the implementation of the return order and to avoid unnecessary delays – there are no incompatibilities between the Convention and the Convention on the Rights of The Child; both are meant to protect the best interests of the child.

RÉSUMÉ

Résumé disponible en EN | ES

Facts

The case is about a seven-year-old girl born in the city of Arica, Republic of Chile, where she lived with her mother, of Argentine nationality, and her father, of Chilean nationality. After the parents decided to end their marriage, the father chose to stay in Arica, and the mother went back to the city of Formosa in Argentina.
In August 2019, the parents concluded an agreement under Chilean law, stipulating that the father would have personal custody of the child and the mother would communicate freely, directly and regularly with her.
In addition, the father granted an authorisation for the child to spend her vacations with the mother in the city of Formosa, Argentina, and return to Chile by end of February 2020. As agreed, the child travelled to Argentina to spend her vacation with the mother, but they did not return to the city of Arica on the relevant date.
On 28 September 2020, the father filed a return application before the Family Court of the City of Formosa.

Ruling

Return ordered.

Grounds

Removal and Retention - Arts 3 and 12

The Court assessed the wrongfulness of the retention and found that the habitual residence of the child was in the City of Arica (Republic of Chile) and that the father had custody rights over her, pursuant to Chilean law.
The Court concluded that retention was wrongful since the child had not returned to Chile on the date previously agreed upon, thus violating the custody rights of the father, which were effectively exercised by him at the time of the wrongful retention.

Settlement of the Child - Art. 12(2)

The Family Court noted that the time elapsed between the date on which the child was supposed to return to Chile and the date of commencement of judicial proceedings was less than a year. In this regard, the time elapsed did not exceed the time period established by the 1980 HCCH Convention on Child Abduction to refuse the return on the basis of the child’s settlement in the new environment and the existence of a new centre of life.

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

The mother raised the grave risk exception, averring that, should the court order the return, the child would suffer grave psychological and physical risks because of the ill-treatment she received at her father’s house, particularly, by her cousin, who admonished her, made fun of her and beat her on the head. In addition, it was argued that she would be exposed to risks by being separated from her mother, with whom she had been all her life. The Family Court considered the merits of these allegations and, using the “Guide to Good Practice – Part VI - Article 13(1)(b)” as guidance, noted that the exception is forward-looking, meaning that it focuses on whether the circumstances of the child upon return would expose her to grave risk. Moreover, it was held that, in order to determine whether the grave risk exception applied, it was necessary to consider all the evidence and circumstances in the case, including existing protective measures and the likelihood of their implementation.
The Court concluded that there was no evidence allowing for a conclusion that a grave risk existed and, accordingly, the exception was not established. Furthermore, it found that the consideration of the mother’s allegations of violence and ill-treatment fell under the jurisdiction of the courts in Chile, as these matters fell outside the scope of the return proceedings where the Court only has competence to order or deny the return of the child.

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

The Court held that the child’s objections to return must establish a strong feeling, beyond an expression of a mere wish. There must be an irreducible objection against returning to the place of habitual residence by the child participating clearly and coherently.
The Court held a virtual hearing with the child present and found that she had no objection to her return to the Republic of Chile. She said that she missed her family in Chile, and expressed a sense of identity as “Chilean and, in part, Argentine”. Also, the Court noted the child’s fear of her mother being detained by the police because of a report made by her father if she does not return to Chile. She wanted to protect her mother through her decision regarding where and with whom to stay.
The Court found that the requirements for granting the exception were not met.

Procedural Matters

Upon ordering the girl’s return to Chile, the Court found that, in accordance with Section 2642 of the Argentine Civil and Commercial Code, it was incumbent upon it to oversee the child’s safe return and to invite the parties to voluntarily agree on the return.
Since airports and borders were closed in Argentina due to the COVID-19 pandemic, cooperation amongst the parties proved even more necessary to avoid delays and to safeguard the child’s best interests. The Court said that the father would be responsible for picking up the child and her mother and taking them to Chile, where he would provide for their accommodation until the relevant authorities there should order otherwise. However, considering that the mother was in the last stages of pregnancy and that the pandemic posed a greater risk to her, the Court allowed her to choose someone else to act on her behalf and to travel together with the child.  
The Court scheduled a hearing by videoconference, where the parents agreed on the implementation of the return order. The father undertook to go to the City of Formosa to pick up the child and take her back to Chile. He promised that the child would communicate daily and freely with the mother and that the child would continue going to therapy in Chile. Lastly, he promised to immediately provide the Court with a “journey plan” to carry out the return while complying with the administrative and sanitary requirements in the Province of Formosa. The parents’ agreement was approved by the Court.

Interpretation of the Convention

The Court referred to the case law of the Argentine Supreme Court and confirmed that there are no incompatibilities or contradictions between the 1980 HCCH Convention on Child Abduction and the Convention on the Rights of The Child since the purpose of both Conventions is to protect children, a fundamental principle that must inform all decisions affecting them. In the same vein, it was noted that, in child abduction cases, the best protection for children is achieved through the restoration of the status quo from the time before the wrongful removal or retention. For the same reason, it was noted that courts of the State of habitual residence of the child must decide on the merits of the case relating to custody, personal care of the child, the communications regime and child support, among others.

Authors: Josefina Ordenavía y Jean Marco López (Prof. Nieve Rubaja, Head of INCADAT LATAM summary team; Emilia Gortari Wirz, Assistant)