1Ob648/92 (1Ob649/92), Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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The two children concerned were born to married parents. Since the summer of 1989 they lived with their maternal grandparents in Hungary. The grandmother applied for custody of the children. On 23 and 24 April 1990 the Council of the 13th Canton of Budapest awarded interim custody to the grandmother who was also designated guardian of the children.
On 17 July 1990, seised with an appeal from the parents, the Council’s executive committee confirmed the April 1990 decisions. The parents’ divorce was pronounced in Austria on 16 October 1990. The same day, the parents agreed the father would have custody of the children and noted that they were then staying with their maternal grandparents in Budapest. The decision to attribute custody to the father was authorised by the District Court (Bezirksgericht) of Vienna intra muros on 13 March 1991.
On 28 May 1991 the mother’s application for custody of the children to be attributed to her was dismissed by the same Vienna Court. On 22 June 1991, unknown to the grandmother, the mother took the children back to Austria. The children were entrusted to the father. On 2 September 1991 the Hungarian Central Authority transmitted to the Austrian authorities an application for return filed by the grandmother.
On 21 November 1991 the District Court (Bezirksgericht) of Favoriten (Austria) dismissed the application for return. The children were at school in Austria and there was a real possibility that the Hungarian courts would award custody to the father. To return the children and then send them back to Austria shortly afterwards would put them in an intolerable situation in the sense of Article 13(1)(b).
On 3 February 1992, the Regional Court for Civil Matters (Landesgericht f?r Zivilrechtssachen) in Vienna heard the grandmother’s appeal and ordered the immediate return of the children to Hungary. As the grandmother had interim custody at the time of the removal, the conditions for application of Article 3 were met. The father had not invoked application of the exception of Article 13(1)(b), which cannot be applied automatically by the Court. The grandmother was authorised to travel to Austria to fetch the children and take them back to Hungary. The father appealed to the Supreme Court (Oberster Gerichtshof).
On 24 April 1992 the Supreme Court dismissed the father’s appeal, considering that the removal had indeed ignored a right of custody that was being effectively exercised by the grandmother. The decision of 3 February 1992 ordering the immediate return of the children to Hungary was confirmed. On the basis of these decisions, the grandmother requested that appropriate measures of enforcement be pronounced for the minors to be returned to her.
On 11 June 1992 the father requested enforcement of the decisions to be temporarily suspended. To justify his claim, he submitted that on 20 February 1992 the Central District Court in Pest had pronounced in favour of modifying the custody of the children. He also alleged that the grandparents had begun proceedings before a Hungarian judge on 11 April 1991 in order to return the children to the father at the end of July 1991.
On 15 June 1992 the District Court of Favoriten (Austria) dismissed the father’s application and ordered him to take the children to the Department for Children in the 16th Canton on 22 June. The decision rendered by the Court in Pest had not yet become final and therefore did not constitute a new element in the case to be usefully invoked by the father. On 22 September 1992 the Regional Civil Court in Vienna dismissed the father’s appeal considering that he had not presented any arguments that could justify suspending enforcement of the return order.
The father appealed to the Supreme Court of Austria.