4Ob538/92, Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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The child, a boy, was aged 23 months at the date of the allegedly wrongful retention. He had lived with his family in California for the whole of his life. On 3 October 1991 the mother took the child, with the agreement of the father, on holiday to his grandparents in Austria. They were expected to return to the United States on 17 February 1992. They did not return. On 14 March 1992 the father filed an application for return of the child.
On 25 May 1992 the District Court (Bezirksgericht) of Spittal an der Drau (Austria) dismissed the father’s application. The father had always taken only very little care of the child, for whom his mother was the most important person. After the mother and child had left, the father had moved into a different apartment. Article 13(1)(b), should indeed be interpreted in a restrictive manner, but it was from the point of view of the best interests of the child that the situation should be considered.
This being said, the child would not return to a familiar environment, but would be returned to a father with whom he had never had a psychologically positive relationship, and would be placed in a cr?che the whole day while the father was at work.
On 29 June 1992 the Regional Court (Landesgericht) of Klagenfurt confirmed the decision of the first judges. Non-vitiated proceedings had allowed it to be shown that return of the child would lead to difficulties of a nervous nature the extent of which it was impossible to determine. The father brought an appeal before the Supreme Court of Austria.