5A_650/2009, IIe cour civile, arr?t du TF du 11 novembre 2009

INCADAT legal file Hague parental abduction

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Habitual Residence – Art. 3
The Tribunal pointed out that neither the Hague Convention nor the Swiss Federal Act of 2009 on international child abduction and the Hague Conventions on the protection of children and adults defined that notion, which, according to the case-law, was to be defined autonomously.
The interpretation under the 1980 Convention was to be similar to that under the 1961 Convention, and conferred determining importance on the actual centre of the child’s life and links. This could be based on either the actual or the contemplated duration of the residence and expected settlement, and 6 months’ residence created habitual residence in principle.
The Tribunal added that residence could become habitual as soon as the location of residence changed, if intended to be durable and to replace the previous centre of interest. It observed that habitual residence is determined on the basis of outwardly-perceptible facts, and not of intent and should be determined for each person separately, but that a child’s was usually the same as the centre of the life of at least one parent, and a mother’s connections with a country also as a rule encompassed the child.
The Tribunal observed that the mother had applied to the Italian court in February or March 2009 for permission to move to Italy with the child. She had worked for several years in both Switzerland and Italy, and had obtained a permanent position at an Italian university. She had accommodation close to her mother’s and sister’s, and had enrolled the child in school in April 2009 for the following school year.
The canton court had therefore rightly held that the mother had duly prepared her move to Italy, which seemed coherent, and her departure from Switzerland on 27 June 2009 was the outcome of a process initiated several months before. That establishment in Italy was meant to be durable.
As a result, according to the Tribunal, even though the child had spent several years in Geneva and stayed in Italy only occasionally, the duration of the contemplated residence and the expected settlement were determining and resulted in acquisition of habitual residence in Italy.
Rights of Custody – Art. 3
According to the father, the child had been removed in breach of joint parental authority as the judgment of 12 May 2009 permitting the mother to move to Italy with the child was not final, an appeal having been entered. The Tribunal held that the father had disregarded the declaration that the ruling was enforceable notwithstanding the appeal.
In addition, the father disregarded Article 14 of the Hague Convention, whereunder in determining the existence of a wrongful removal or retention within the meaning of Article 13 of the Convention, the authority of the requested State may take notice directly of the court or administrative determinations, formally recognized or not in the State of the child’s habitual residence, without recourse to the specific procedures for proof of that law or the recognition of foreign decisions that would otherwise be applicable.
According to legal doctrine, that possibility ruled out, having regard to the purpose of Article 3, any incidental review of the requirements for recognition, since the issue was solely the wrongfulness of a removal of the child according to the law of its habitual residence. The child-abduction convention did not thereby extend the effect of the decision in the requested State towards recognition, but merely required, if applicable, taking into consideration a “consequence of fact” in the State of origin.
Procedural Matters
The Federal Tribunal pointed out that it reviews sua sponte the admissibility of the appeals to it and added that rulings on a child’s return under the Child Abduction Convention are not civil matters. They are matters of administrative assistance between Contracting States, and hence issues 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. Hence, the accessory constitutional appeal was not. The civil appeal could be entered on the basis of breach of federal – including constitutional – or international law.
The Federal Tribunal applied the law sua sponte, and was not bound by the basis of the previous authority’s decision, or by the parties’ pleas. On the other hand, the Federal Tribunal could not try a breach of fundamental rights unless that claim was made and substantiated by the applicant.
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. The Federal Tribunal reviews infringements of the ban on arbitrary action only if that plea has been made and substantiated by the appellant, i.e., expressly raised and stated in a clear and detailed manner (principe de l’all?gation).
Author of the summary: Aude Fiorini, United Kingdom