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The case concerned three children who habitually resided in the United States of America. The District Court of Idaho had entrusted the custody of the children to the mother. The mother went to France with the children and refused to return to the United States. The father initiated return proceedings under the 1980 Convention through the US Central Authority and initiated proceedings before a US court for an arrest warrant against the mother.

The French Central Authority was notified of the case and referred it to the public prosecutor (procureur de la République) of Paris, which submitted it to the District Family Court (juge aux affaires familiales ) of Paris in order to obtain the return of the children to the United States. The court ordered the return of the children. The mother appealed the decision before the Court of Appeal (cour d’appel) of Paris. The case was also referred to the Juvenile Judge (juge des enfants) of Evry, who ordered an assessment of the situation of the children on 8 August 2017. A report was issued on 9 May 2018.

The Court of Appeal of Paris, in a decision dated 2 October 2018, overturned the first instance decision and refused to order the return of the children pursuant to Article 13(1)(b) of the 1980 Convention. The father appealed this decision before the Supreme Court (Cour de cassation).

Appeal dismissed. The Supreme Court upheld the refusal to return the children, finding that the father’s violent conduct and the impossibility for the mother to protect the children, due to the presence of an arrest warrant against her, created a grave risk of harm and an intolerable situation under Article 13(1)(b) of the 1980 Convention.

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

The father, in his appeal before the Supreme Court, claimed that he was a loving and stable father, able to take care of the children, and that the mother was alienating them from him. In response to the Court of Appeal’s finding that the father did not take any concrete action towards maintaining the relationship between the mother and children upon their return, in particular by not asking for the revocation of the arrest warrant issued against the mother, he declared that the mother could have started proceedings herself to lift the arrest warrant and that she was therefore creating the obstacle for the return of the children, and contributing to the strained relationship between them and their father.

The Supreme Court however upheld the Court of Appeal’s determination that there was a grave risk of harm for the children in case of a return to the United States, within the meaning of Article 13(1)(b) of the 1980 Convention, as the evidence highlighted that the father was suffering from a severe depression, which required urgent medical attention, that he was addicted to alcohol and was violent towards the children. The assessment report issued on 9 May 2018 outlined the psychological and/or physical violence inflicted by the father on the children and their serious behavioural issues resulting from it (extreme anxiety, eating disorders and sleep disorders – one of the children feeling a sense of deadly dread at the prospect of returning to live with her father). Also, the mother, who embodied protection in the eyes of the children, could be arrested upon entering the country due to the arrest warrant against her, therefore preventing her from ensuring their protection.

Author: Camille Druilhet