5A_105/2009, II. zivilrechtliche Abteilung, arr?t du TF du 16 avril 2009

INCADAT legal file Hague parental abduction

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Removal and Retention – Arts 3 and 12
Having observed that the child’s habitual residence was unquestionably in the United States of America, the Federal Tribunal stated that there was no need to determine to what extent the father had ex lege a right protected by the Convention, since the removal’s wrongfulness was due to the mother’s breach of the terms of the US ruling dated 20 December 2007 enjoining both parents from removing the child from the territory without the other parent’s consent, and of the ruling dated 9 January allowing her to remain in Switzerland only until 26 January 2008.
Consent – Art. 13(1)(a)
The Tribunal noted that the mother no longer invoked the father’s consent or acquiescence. It stressed, however, that the application of Article 13(1)(a) required a high standard of proof. The will of the left-behind parent needed to have been clearly expressed.
Acquiescence – Art. 13(1)(a)
The Tribunal noted that the mother no longer invoked the father’s consent or acquiescence. It stressed, however, that the application of Article 13(1)(a) required a high standard of proof. The will of the left-behind parent needed to have been clearly expressed.
Grave Risk – Art. 13(1)(b)
The mother claimed that the return was to be refused on the basis of Article 13(1)(b) because she risked being separated from the child in the event of return to the United States of America owing to immigration problems. Neither could she be required to return to the United States of America whereas custody had subsequently been withdrawn from her, and she was threatened with imprisonment there.
The Tribunal found that the trial judge had indeed considered that separating the child from his mother would put him in an intolerable situation, but stated that it had nevertheless ordered the return since the mother still held a US visa. It had appeared, however, that this visa did not necessarily permit her to enter the United States of America, the decision being incumbent, on arrival, upon a customs inspector.
It is on the basis of these uncertainties, whereas the child was aged only 21 months and still being partly breast-fed by the mother and had not seen his father for nine months, that the Superior Court had decided on appeal not to order the return.
The Federal Tribunal stressed the importance of strict interpretation of the exceptions to return, having regard to the Convention’s meaning and purpose. Financial difficulties were not sufficient; but there was a grave risk in the event of return to a war or epidemic zone, or where it could be feared that the child would suffer abuse in the event of return, without the local authorities being able to protect it.
The Tribunal added that the point was not to determine which parent took better care of the child or which country was more suitable for the child. In addition, there was no grave risk of mental danger on the basis only that a return would involve initial language or resettlement difficulties, which are customary whenever a child reaches a certain age. As regards separation of the child from its mother, the Tribunal held that the return’s intolerable character needed to be established in relation to the child itself, and not its parents.
In some cases a child could be separated from the parent providing its principal care. It was otherwise if the child was still an infant for whom a separation is always intolerable. The Tribunal added that it had had occasion in the past to rule that a parent could not effectively assert a danger he or she had created by refusing to accompany the child: an abducting parent should not be permitted to manipulate the Convention. This position was further justified by the fact that parents are responsible for their children’s well-being, and should accordingly accompany them insofar as the return is possible for them, objectively and subjectively.
In the case in point, the child being almost two years old was no longer strictly an infant but was still very young, and at that age people mattered more than locations. Yet the mother had always taken principal care of him since his birth. She had done so exclusively for the past nine months. The child hardly remembered his father and one could in fact wonder whether the father, suffering from chronic fatigue syndrome, was physically and financially able to care for the child. The Tribunal concluded that a separation from his mother would put the child in an intolerable situation. The child might return to the United States of America only if she accompanied him.
The Tribunal noted that there was no certainty that the mother might enter US territory. Even if permitted to do so, there was no certainty that she might reside there until a ruling on custody. In addition, the father had obtained sole custody of the child after the abduction and the mother had committed several contempts of court that might result in imprisonment.
The Tribunal therefore decided to approach the US court directly, and the latter assured that it could, with the father’s consent, cancel the ruling having transferred sole custody of the child to the father. In addition, the US court explained that the mother would not be imprisoned in the event of return. The parents were interviewed. The Tribunal then found that the risk of separation resulting from a possible term of imprisonment and transfer of custody to the father had accordingly been eliminated.
There remained the risk of being refused entry upon arrival in the United States of America or expiry of the mother’s residence permit before the end of the custody proceedings. In this respect, the Tribunal stated that the return was to be made contingent upon the mother’s obtaining a binding assurance in writing from the competent US authorities that she might enter the United States of America with her visa and remain there at least until a final ruling on custody. The condition was consistent with Article 2 of the 1980 Convention, which provides that “Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention”.
It added that both the father and mother had obligations in this respect: the father could influence the US authorities’ decision, by stating for instance that he would provide for all the needs of the mother and child. In addition, the mother was also to take all the steps required for her entry in the United States of America. It was only if her application was officially denied by the authorities that she would be released from her obligation to accompany the child to the United States of America.
Procedural Matters
The Tribunal pointed out that the duty of diligence has a special place in the 1980 Convention, and permits it to determine certain issues of fact even though its purview is determination of issues of law. Thus it had been able, instead of referring the case to the canton Court at first instance, to get in touch with the US court directly.
Likewise, it could issue in this case a ruling on the merits since it had at its disposal all the factual evidence required to do so, and there was no need to have a power of appraisal to observe whether the requirement imposed was satisfied or not.
The same obligation further required the allowance to the mother of 30 days maximum to take the necessary steps to obtain an entry visa and residence permit. She was then allowed another 30 days, from the grant of the necessary permits, to return the child to the United States of America at her expense.
Expenses:
The Tribunal noted that the United States of America had expressed a reservation within the meaning of Article 26(3) (read jointly with Article 42) of the 1980 Convention. In such case, Switzerland applied the reciprocity principle. Both parties obtained legal aid in this case.
Author of the summary: Aude Fiorini, United Kingdom