5A_436/2010, II. zivilrechtliche Abteilung, arr?t du TF du 8 juillet 2010

INCADAT legal file Hague parental abduction

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Consent – Art. 13(1)(a)
The father asserted the mother’s consent to the children’s settlement in Switzerland. The Federal Tribunal stated that the issue of consent was not, contrary to the father’s claim, an issue of the Convention’s applicability. The Convention was applicable as the father had removed the children, habitually resident in Croatia, to Switzerland in 2008 whereas the mother had ex lege a right of custody that she actually exercised at that time.
Consent could, however, be an exception to the children’s return. It was incumbent on the party asserting the exception to prove it, and both legal doctrine and the case-law were demanding in this respect that the intent of the party granting consent had to be manifested clearly (expressly or impliedly).
The issue whether consent had been duly proven was essentially an issue of fact (subject to the limits of arbitrary decisions or breach of rights secured by the constitution). The father relied on factors that were either new, or obscure and imprecise, and failed to prove that the appeal court’s ruling that consent or acquiescence had not been established was arbitrary.
Grave Risk – Art. 13(1)(b)
Pointing out that the exceptions are to be construed strictly, the Tribunal noted that the father merely repeated the opinion that the mother was an alcoholic without proving that the appeal court’s position that this had been neither demonstrated nor even plausibly asserted was arbitrary. The same objection could be raised about the father’s plea that there had been a fire in the mother’s house in February 2009.
The difficulties relating to language or resettlement, almost systematic for children of a certain age, did not involve a risk of grave mental risk, it being pointed out in fact that settlement in Croatia would cause only few difficulties in view of the children’s age and the fact that they would return to a familiar place.
Jurisdiction Issues – Art. 16
All the other factors stressed by the father (relating to his qualities compared with the mother’s) were not relevant in connection with return proceedings, being only related to the issue of custody and jurisdiction of the courts of the State of the children’s habitual residence.
Procedural Matters
Federal Tribunal and remedies:
The Federal Tribunal pointed out that decisions about a child’s return under the 1980 Hague Child Abduction Convention are not civil matters. They are matters of administrative assistance between Contracting States, and therefore of public law. A civil appeal brought within the statutory period of 10 days against the final decision at canton level was admissible in principle.
The civil appeal could be entered on the basis of breach of federal and international law. The Federal Tribunal applied the law sua sponte. The Federal Tribunal further stressed that it acted on the basis of facts determined by the previous authority, unless they had been established manifestly wrongly, or in breach of the law; in such case, the burden of proof was borne by the party alleging arbitrary action, but without allowing new facts or evidence.
The return proceedings were free but the Tribunal held that the father, as the party refusing return, had to bear the mother’s legal costs.
Author of the summary: Aude Fiorini, United Kingdom