AFFAIRE

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Nom de l'affaire

A. v. A.

Référence INCADAT

HC/E/AR 487

Juridiction

Pays

Argentine

Nom

Tribunal de première instance de Buenos Aires (Argentine)

Degré

Première instance

États concernés

État requérant

Israël

État requis

Argentine

Décision

Date

5 October 2001

Statut

Définitif

Motifs

Résidence habituelle - art. 3 | Risque grave - art. 13(1)(b)

Décision

Retour ordonné

Article(s) de la Convention visé(s)

3 13(1)(b)

Article(s) de la Convention visé(s) par le dispositif

3 13(1)(b)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

INCADAT commentaire

Exceptions au retour

Risque grave de danger
Risques inhérents à l'État de la résidence habituelle de l'enfant

RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The child, a boy, was 6 1/2 at the date of the alleged wrongful removal. The parents, both Argentinean nationals, were married in Argentina in 1992. The mother was originally from Israel. In 1997 the family moved to Israel.

In March 2001 the parents initiated divorce proceedings in Israel. On 5 May 2001 at a hearing before a Rabbinical Tribunal in Jerusalem both parties undertook not to take the child out of the country. The father handed over the child's Israeli passport but he retained the child's Argentinean passport.

It was the father's case that he and the mother agreed at this time that were the security situation in Israel to worsen he would be allowed to remove the child from the country. On 11 May 2001 the father returned to Argentina. He claimed that on 24 May he became aware that the mother and child had been greatly disturbed by the violent events occurring in Israel and on 8 June he returned there.

On 10 June the father took the child to Argentina. The mother petitioned for the child's return.

Ruling

Removal wrongful and return ordered; the child was habitually resident in Israel at the date of the removal and a grave risk of harm under Article 13(1)(b) had not been proved to the standard required under the Convention.

Grounds

Habitual Residence - Art. 3

The trial court rejected the father’s arguments that the child was habitually resident in Argentina. It noted that the centre of the child’s emotional and daily experiences was Israel. The court further noted that the father had consented to the jurisdiction of an Israeli Tribunal in filing for divorce there.

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

The father claimed that a return to Israel in the light of the political and military situation there would expose the child to physical or psychological harm. The father contended that violence in the region had intensified since the assassination of the Israeli Prime Minister in 1995. The court noted this escalation in violence, but recognised that the family did not move to Israel until 1997, and that if they had felt that the child would be exposed to physical or psychological harm at that time, they would either not have moved there or would have left very quickly. The court noted that despite the hostilities the inhabitants of Israel carried out their daily activities as normal. The court also stressed that terrorism knew no borders and pointed to various acts of terrorism which had occurred around the world in recent years, including two terrorist acts perpetrated in Buenos Aires where the child was now residing. The court was not satisfied that the exception in Article 13(1)(b) had been established and noted that although the situation in Israel might worsen and become a serious threat to the child’s well being, it could also improve. The court ordered the child’s return but delayed execution of this decision for two months on the understanding that should the situation in Israel continue to stabilise the child must return immediately.

INCADAT comment

The child was returned to Israel as directed two months after the judgment, on 5 December 2001, and was given over to the custody of his mother.

Risks associated with the child's State of habitual residence

Article 13(1)(b) has on occasion been raised not with regard to a specific risk directed at the individual child, but as the result of general circumstances prevailing in the State of habitual residence.

In the well-known US appellate case of Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) [INCADAT Reference: HC/E/USf 82], it was held, inter alia, that a grave risk could only exist when the return would put the child in imminent danger prior to the resolution of a custody dispute, e.g. by returning the child to a war zone or famine area.

This argument has been raised most frequently with regard to Israel.

Return to Israel

Courts have been divided over whether a return to Israel would expose a child to a grave risk of harm, but a clear majority has taken the view that it would not, see:

Argentina
A. v. A. [INCADAT Reference: HC/E/AR 487]

Australia
Kilah & Director-General, Department of Community Services [2008] FamCAFC 81 [INCADAT Reference: HC/E/AU 995]

Belgium
No 03/3585/A, Tribunal de première instance de Bruxelles [INCADAT Reference: HC/E/BE 547]

Canada
Docket No 1 F 3709/00; C., 4 December 2001, Superior Court of Justice, Ontario, Court File No 01-FA-10575

Denmark
V.L.K., 11. januar 2002, 13. afdeling, B-2939-01 [INCADAT Reference: HC/E/DK 519]

United Kingdom - England and Wales
Re S. (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 [INCADAT Reference: HC/E/UKe 469]

France
CA Aix en Provence, 8 octobre 2002, No de RG 02/14917 [INCADAT Reference: HC/E/FR 509]

Germany
1 F 3709/00, Familiengericht Zweibrücken, 25 January 2001 [INCADAT Reference: HC/E/DE 392]

United States of America
Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) [INCADAT Reference: HC/E/USf 133]

However, the argument has been upheld on several occasions:

Australia
Janine Claire Genish-Grant and Director-General Department of Community Services [2002] FamCA 346 [INCADAT Reference: HC/E/AU 458]

United States of America
Silverman v. Silverman, 2002 U.S. Dist. LEXIS 8313 [INCADAT Reference: HC/E/USf 481] (see however: Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/US 530])  

Return to Zimbabwe

The highest jurisdiction in the United Kingdom, the House of Lords, rejected in 2008 a submission that the moral and political climate in Zimbabwe was such that any child would be at grave risk of psychological harm, or should not be expected to tolerate having to live there.

Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55 [2008] 1 AC 1288 [INCADAT Reference: HC/E/UKe 937]

Return to Mexico

CA Rennes, 28 juin 2011, No de RG 11/02685 [INCADAT Reference: HC/E/FR 1129]

The mother mentioned the pollution of Mexico City, the insecurity due to crime in the Mexico City metropolis, and earthquake risks. She did not, however, show how these risks affected the children personally and directly. She had not mentioned those factors as justification for her decision to move to France, in a document sent to the father in 2010, but had referred to financial and family difficulties. In addition, the Court of Appeal noted that these factors had not deterred her from living in Mexico from 1998 to 2010 and raising two children there. It further noted that the mother had not seen fit to apply to the Mexican authorities for permission to move to France with the children, without explaining the reasons which in her view could jeopardise her right to a fair trial in Mexico.

The Court of Appeal made it clear that it did not affirm that the pleas raised by the mother were groundless. They might be used in connection with the issue of custody, but were not a sufficient proof of a grave risk.

(Author: Peter McEleavy, April 2013)