HC/E/NI 1604
Nicaragua
Première instance
Costa Rica
Nicaragua
17 May 2019
Définitif
Résidence habituelle - art. 3 | Droit de garde - art. 3 | Questions de compétence - art. 16
Retour ordonné
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Wrongful removal of a 12-year old child – Custody rights were exercised by the child’s aunt and her husband – The child lived in Costa Rica since he was 2 years old until February 2019 – Return ordered – Main Issues: habitual residence; rights of custody; jurisdiction issues – The habitual residence of the child is where his centre of life is, irrespective of the child’s nationality – Even though the mother had parental authority over the child, the rights of custody were exercised by the child’s aunt and her husband, and thus removal was wrongful – Return proceedings are not aimed at determining the parent’s ability to take care of and raise the child.
The case concerns a 12-year-old boy. He was born in Nicaragua, but when he was 2 years old the mother took him to Costa Rica, leaving him to the care of a maternal aunt and her husband. The child lived in that country for over ten years and during that time he kept little touch with his mother, through sporadic phone calls and social media messages.
In February 2019, the mother and the maternal grandmother travelled to Costa Rica. One day, they asked the aunt permission to take a stroll with the child, which she allowed. When they did not return and did not answer her phone calls, she decided to file a complaint with the Costa-Rican Judicial Investigations Agency.
In addition, she and her husband initiated the relevant proceedings before the Costa-Rican Central Authority. Said office contacted the mother and the grandmother, who told them that the boy was in Nicaragua and that he would stay there to then travel to Canada with his mother.
Return ordered. Wrongful removal. No exceptions in the Convention were raised or established.
The Court found that the child’s habitual residence was in Costa Rica. It pointed out that the habitual residence is where a child’s centre of life is, irrespective of its nationality. In this regard, it found that the child was settled in Costa Rica, where he lived for over ten years and had formed a social and educational circle.
The Court found that even though the mother had custody over the child, the removal of the child to Nicaragua was wrongful because it violated the custody rights exercised by the aunt and her husband with the mother’s consent.
The Court found that the mother and the grandmother of the child focused the evidence submitted on issues relating to the merits of the case, i.e., custody rights, mistaking the subject-matter of return proceedings. In this regard, it pointed the three following issues appurtenant to return proceedings: whether the person impeding return is legitimised to do that, whether there is a wrongful removal or retention and whether the exceptions invoked merit refusing return, also taking into consideration the views of the child. It added that the subject-matter of return proceedings is not that of ascertaining the parents’ ability to take care of and raise the child.
Author: Daniela Agustina Vuchich (Equipo INCADAT LATAM, Dir. Nieve Rubaja, Asistente Emilia Gortari Wirz).