Recherche de décisions

​​The application was about a child, born on 23 June 2009, who lived with her parents in Mexico. The parents were married, however the mother initiated divorce proceedings. On 20 September 2010, a Mexican court granted provisional custody of the child to the mother and visitation rights to the father. A further order also prohibited the mother from taking her daughter out of Mexico until the divorce proceedings were finalised. Nevertheless, on 13 January 2012, the mother left Mexico with the child and travelled to France. The father initiated return proceedings under the 1980 Convention. The public prosecutor (procureur de la République), on 27 September 2012, brought proceedings against the mother before the Family Affairs Judge of the Judicial Court (juge aux affaires familiales du tribunal judiciaire) of Poitiers. The proceedings went to the Court of Appeal (cour d’appel) of Poitiers, which refused to order the return of the minor to Mexico on the basis that the provisional custody of the child was granted to the mother and the father only had visiting rights. This decision was appealed by the father before the Supreme Court (Cour de Cassation). ​ 

​​Appeal granted, case remitted to a lower court. The Supreme Court found that the father had rights of custody over the child and that the child’s removal to France was wrongful under the 1980 Convention. ​ 

Rights of Custody - Art. 3

​The Supreme Court rejected the finding of the Court of Appeal that the father did not have rights of custody over the child. The Court of Appeal refused to order the return of the child to Mexico on the basis that the child’s custody had been given to the mother on a provisional basis, while the divorce proceedings were ongoing, and the father only had visiting rights. 

​To the contrary, the Supreme Court affirmed that the father still had the attributes of the “patria potestad” under Mexican law, which falls within the meaning of rights of custody set out in Article 5 of the 1980 Convention. The Court recalled that the mother was forbidden from taking the child out of Mexico and that the removal was carried out in disregard of the father's right to participate in determining the child’s place of residence. The Supreme Court held that the removal of the child from Mexico was therefore wrongful under the 1980 Convention. ​ 

Author: Camille Druilhet