INCADAT | Bundesgericht, II. Zivilabteilung (Federal Supreme Court, 2nd Civil Chamber) Decision of 13 September 2001, 5P.160/2001/min

The child, a girl, was two and a half years old at the date of the alleged wrongful removal. She had until then lived all of her life in the United States. The parents, an American father and a Swiss mother, had divorced in the United States in 1995 and had joint rights of custody.

In September 1996 the mother took the child to Switzerland. In September 1996 the Zurich District Court (Bezirksgericht) granted the mother full custody over the child on an interim basis pending a decision on the merits. On 26 September 1996 the father initiated return proceedings. On 15 November 1996 the Zurich District Court dismissed the father's return application in summary proceedings.

On 6 March 1997 the Superior Court of the Canton Zurich (Obergericht) allowed the father's appeal and ordered the return of the child within ten days following service of the decision on the mother. On 6 August 1997 the Federal Supreme Court (Bundesgericht) dismissed the mother's further appeal against the return order.

Two attempts to enforce return order in October 1997 having remained to no avail, the mother subsequently applied to the Superior Court of the Canton Zurich to set aside its return order of 6 March 1997, to refuse return and to stay enforcement of the return order in the meantime. On 19 December 1997 the Superior Court refused to entertain the application to set aside the return order.

On 25 April 1998 the Court of Cassation of the Canton Zurich dismissed an appeal to declare the return order null and void. Further appeals to the Federal Supreme Court against these two decisions remained to no avail. In May 1998 mother and child moved from Zurich to Aargau. On 16 October and 6 November 2000 the Superior Court of the Canton Zurich refused to entertain further appeals lodged by mother and child.

The appeals for nullity brought against these decisions were dismissed by the Court of Cassation of the Canton Zurich. Mother and daughter lodged further appeals against the decisions of the Superior Court of 16 October and 6 November 2000 which were still pending before the Federal Supreme Court at the time of the present decision.

The father's application to enforce the Zurich return order of 6 March 1997 was dismissed by the competent District Court of the Canton Aargau. On 26 March 2001 the Superior Court of the Canton Aargau rejected his appeal against the refusal, stating that the four-year-old return order could not be enforced without re-examining the best interests of the child which was now 9 years old.

The court considered it to be irrelevant in this context that one main reason for the non-enforcement of the order over such a long time had been the applications and appeals lodged by the mother against the return order. The father then lodged a further appeal with the Federal Supreme Court.

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Bundesgericht, II. Zivilabteilung (Federal Supreme Court, 2nd Civil Chamber) Decision of 13 September 2001, 5P.160/2001/min

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