2Ob78/09y, Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
The habitual residence did not depend on the intention to stay permanently at one place but rather on the issue of where the person concerned chose to centre his/her economic and social existence. It is therefore appropriate to look at the practical, factual relationships of the person at his/her place of residence, the length of time not being a determining factor as such.
In general, habitual residence could be acquired in 6 months but it was important to check whether the facts indeed demonstrated that there was a durable relationship between the person and the place in which he/she lived. This was even more important when the residence of a child had been established in a more or less imposed manner.
A change of habitual residence could intervene even against the will of one of the child’s custodians because what mattered was the physical centre of the child’s existence. Despite the contrary will of one parent, a change of habitual residence could not be denied when the residence was long and the child was socially integrated in his/her environment.
It was important then to verify where the child’s habitual residence was at the time when the father considered the child to have been removed. The fact that the mother had received child allowance in Slovakia and that the child was enrolled in kindergarten there was not enough to prove that the habitual residence was in Slovakia.
Indeed, it was possible that the payment of the social benefits did not depend on proof of residence or even that the mother had received them improperly, and in addition, it was possible that the child resided in Austria, 10 km from where his/her kindergarten was situated, and not in Slovakia. The case therefore had to be referred back to the first judge in order to decide on the habitual residence.
Rights of Custody – Art. 3
The Supreme Court indicated that the effects of the natural family relationships of a child were governed by his/her personal status and subject to national law. In cases such as the case at hand in which the child was a dual-national (of German and Slovak nationality), it is the law of the closest relationship that is applied.
It was not disputed by either parent that Slovakia was the country with which the child had the closest relationship. Additionally, the mother did not explain why the Court of Appeal should not have considered that under Slovak law the custody was shared in this particular case.
The Convention was therefore indeed applicable and the removal wrongful because it did not recognise the father’s right of custody, if, as the father claimed, the child had been removed outside of the borders of Slovakia, his habitual residence, in August 2008. It was therefore crucial to establish the place of habitual residence of the child at that time.
Procedural Matters
The Supreme Court decided that is was not incumbent upon it to contribute to the interpretation of the foreign law. The absence of case law from the Austrian Supreme Court on the interpretation of foreign legal provisions could not raise important questions of law that justified its intervention.
However, in the case at hand, the intervention of the Court was justified as the mother had claimed that she had sole custody of the child and lived with the child in Austria since 2003 and not 2008. This ground could be evoked at this point as the mother had not been heard by the judge of first instance.
Author of the summary: Aude Fiorini