11 UF 121/03, Oberlandesgericht Hamm

INCADAT legal file Hague parental abduction

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Rights of Custody – Art. 3
Actual Exercise Under English law, the law of the children’s State of habitual residence, the father held rights of custody, including the right to determine the children’s place of residence. The Court found that the father continued to exercise this right after his separation from the mother. It ruled that a parent who is not a primary carer exercises his custody rights by maintaining contact with the children and, like father, by opposing their permanent removal to a foreign country.
Grave Risk – Art. 13(1)(b)
The Court held that the harm which typically results from a return order being made, for example through the child’s repeated change in residence and school, as well as the loss of friends, was not sufficient to activate the grave risk of harm exception. Only unusually severe impairments to the best interests of a child, which went beyond the difficulties usually associated with repatriation, could be considered under the present heading. While there was evidence that the children did not wish to return to the United Kingdom, the Court ruled that this was not sufficient to overturn to ruling of the trial court. The Court noted that it was the mother’s duty to prepare the children for the return as well as explain to them why it was happening.