2Ob596/91, Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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The three children, two boys and a girl, were aged 10, 7 and 5 at the date of the alleged wrongful removal. The parents divorced in England in 1988. Custody was transferred to the mother and the father was granted a right of access. The court further ordered that the children were not allowed to leave England without the permission of the court or the consent of the other parent.
Difficulties arose regarding the exercise of visitation rights and this right was subsequently suspended by an English court. Without the court’s permission or the father’s consent, the mother took the children to Austria. In January 1991 the father petitioned for the return of the children. On 1 August 1991 the District Court for the Inner District of Vienna dismissed the application.
On 5 November 1991 the Appellate Court (Landesgericht f?r Zivilrechtssachen Wien) found that the father did have a right of custody according to Articles 3 and 5 of the Convention. Nevertheless, it refused to order the return of the children, finding that the oldest child objected and that to return the other children would be to place them at a grave risk of harm. The father appealed to the Supreme Court.