HC/E/AR 1590
Argentine
Instance Suprême
Venezuela
Argentine
21 October 2020
Définitif
Déplacement et non-retour - art. 3 et 12 | Consentement - art. 13(1)(a) | Intégration de l'enfant - art. 12(2) | Risque grave - art. 13(1)(b) | Droits de l'homme - art. 20 | Opposition de l'enfant au retour - art. 13(2) | Questions procédurales | Questions liées au retour de l'enfant
Retour ordonné avec des engagements proposés
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Wrongful removal of a boy when he was 10 years old - Venezuelan – the father had exclusive custody rights - the child lived in Venezuela until 2018 – the father requested return before the Venezuelan Central Authority in July 2020 – return ordered – main issues: removal and retention, consent, settlement of the child, grave risk, objection of the child to a return, procedural matters, issues relating to return – removal was wrongful since it breached the father’s custody rights, attributed to him under the law of the State where the child was habitually resident – the father did not consent to the child’s removal – he acted towards the child’s return within a year since the wrongful removal – it was not established that the child would be exposed to a grave risk or an intolerable situation upon return to Venezuela – it was not established that the child’s fundamental rights were impaired – there was not an irreducible objection of the child against returning to the place where he was habitually resident - the Court ordered an interim exit and change of residence ban - the Court ordered the parents to collaborate with enforcement of the return order - the Court ordered to take the necessary steps for the child’s safe return
The case concerns a boy born in the Bolivarian Republic of Venezuela in April 2009. He stayed there 9 years, together with his father and mother.
On 24 April 2017, the Child and Adolescent Protection Board of the Bolivarian Libertador Municipal Government of the Caracas District decided that the child should be under his father’s care only.
The child was removed by his mother to the Republic of Peru, where he could not be located, and then to the Province of Córdoba, Argentina, where he was found in 2018.
In July 2020, the father requested the child’s return before the Venezuelan Central Authority, which referred the request to the Superior Court of Justice in and for the Province of Córdoba (the local highest court) and additionally requested interim relief, so as to prevent any escape attempts.
Return ordered. None of the exceptions in the 1980 HCCH Convention on Child Abduction were established.
The Court established that, under Art. 3 of the 1980 HCCH Convention, removal and retention is wrongful where it is in breach of rights of custody attributed either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention. In addition, it established that the rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State of the child’s habitual residence.
The Court found that the Child and Adolescent Protection Board of the Bolivarian Libertador Municipal Government of the Caracas District had granted the rights of custody to the father. Thus, the removal was wrongful as it breached his attributed rights of custody, which were actually exercised by him in the City of Caracas.
The Court established that, under Art. 3 of the 1980 HCCH Convention, removal and retention is wrongful where it is in breach of rights of custody attributed either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention. In addition, it established that the rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State of the child’s habitual residence.
The Court found that the Child and Adolescent Protection Board of the Bolivarian Libertador Municipal Government of the Caracas District had granted the rights of custody to the father. Thus, the removal was wrongful as it breached his attributed rights of custody, which were actually exercised by him in the City of Caracas.
The mother alleged that the child had settled at school and had made new friends. Thus, she claimed that the new centre of life of the child was in Argentina.
The Court held that firstly, it had to assess whether the father had requested the child’s return within one year since removal. It held that notwithstanding the fact that the child’s removal had taken place in 2018, and that the request was filed in 2020, there was evidence on record that the father had made attempts at trying to locate the child since November 2018.
Having the father made efforts to try and locate the child within one year since the removal, the Court held that it could not then assess whether the child had settled into the new centre of life.
The mother alleged that the father was violent and that he took drugs and drunk alcohol, threatening her and the child constantly via text messages. She claimed that because of this, return would expose the child to physical or psychological danger.
The Court held that not any type of risk triggers the exception. On the contrary, a qualified risk that could affect the child must be proved. Also, it held that the grave risk exception only applies when return would have a disruptive effect on the child greater than the one resulting from the emotional impact normally caused by a change in residence or by the separation from the parent with whom he or she was living together.
Lastly, the Court found that the mother’s allegations were mere claims which were not supported by evidence; also, it found that the mother had not produced any evidence. Neither had she claimed the impossibility of reporting the father’s supposed intolerable conduct to the authorities. Moreover, it considered that there was a decision from the State of habitual residence that granted the custody of the child to the father.
The mother stated that the situation in Venezuela was alarming and that life there was impossible. She claimed not having had access to food, medicine, education, and any work opportunities there. The Court held those claims were not supported by evidence and thus should be rejected. In addition, it held that no violation of the fundamental rights of the child had been established.
The child was heard in person by the Court members and by two members from the Multidisciplinary Technical Court Assisting Body (CATEMU, in Spanish). The Court found that even if the child had expressed his intention to continue living in Argentina, he understood the circumstances of the case and of a potential return to the State of habitual residence. Thus, the Court found that he did not show an irreducible objection against returning to his country of origin. Instead, he had expressed a mere preference and therefore the exception had to be rejected.
Upon receiving the return request, the Court issued an interim country exit ban for the mother and the child. They were also ordered to stay within the court’s venue limits and were not allowed to change their place of residence. In order to prevent an escape attempt, it ordered the mother to surrender the child’s passport and identification card.
In order to avoid further procedural delays, and to protect the child’s best interests, the Court ordered the parents of the child to collaborate with enforcement of the return order.
To secure the child’s safe return, it found best for the mother to accompany the child to Caracas, Venezuela. It gave her 10 days to buy the tickets from Córdoba to Caracas; otherwise, the father was allowed to take the necessary measures to pick the child from the mother’s place in Córdoba and appear before court in order to get his passport.
Lastly, regarding the travel expenses, it was ordered that the father was to bear the full amount, since he had claimed to be financially sound.
Author: Brian Dmitruk (INCADAT LATAM team, Director Nieve Rubaja, Assistant Emilia Gortari Wirz).