1Ob163/09s, Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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The daughter was born in Austria in 2000. 3 months later, after the parent’s wedding, the family returned to settle in Spain. The father started isolating the mother and set up a sectarian movement, considering himself to be a messenger of God. He started to beat the mother, always in the presence of the child, so that the latter would “learn what life was about”. He obliged mother and daughter to dress in a particular way and refused to send the child to school.
Finally, the police intervened. From October 2006 to July 2007, the mother and the child lived in a women’s shelter, then an apartment was made available to them (which was no longer the case on the date of the hearing) and they were offered psychological support.
When the divorce was pronounced in 2008, the mother was given custody of the child (guarda y custodia) but parental authority (patria potestad) remained shared. The judgement clearly detailed the manner in which the father was to exercise his right by extra provisions which had to be applied if the parents could not come to an agreement themselves.
In particular, these provisions set out that the child should stay from 20 June to 1 August with the father. The father was to collect the child at 4 p.m. at a given place and bring her back on 1 August in order for her to spend the second half of the summer vacation with her mother. The mother brought the child to the father’s home on 26 June and went to collect her again on 1 August. She immediately took the child to Austria to her maternal grandparents’ home. The young girl was still there on the date of the hearing.
On 11 March 2009, the District Court of St. P??lten (Bezirksgericht St. P??lten, Austria) allowed the father’s application for return. On 10 June, the Court of Appeal St. P??lten (Landgericht St. P??lten) allowed the mother’s appeal and sent the case back to the first judge in order for the application to be ruled on once again, after the child had been heard and after having established whether the Spanish authorities were in a position to protect the child upon her return. Both parents appealed before the Supreme Court (Oberster Gerichtshof).