7Ob596/93, Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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The parents of the two children concerned were married in Austria in 1983. In October 1988 the family settled in the United States of America. In December 1989 the mother left the family home. The children remained with their father until the mother decided to take care of them during the second half of 1990. At the start of the following year, the mother, whose professional activities were very time-consuming, entrusted the children to the father once again.
On 26 March 1991 a court of the District of Cook (Illinois) pronounced the parents’ divorce and decided that the parents would have joint custody, with physical custody nevertheless attributed to the father and a right of access to the mother. Each of the parents was prohibited from taking the children outside the jurisdiction of the court for a long period of time. At the beginning of July 1992 the father asked the mother if she could take care of the children for a period of two weeks during his honeymoon.
On 17 July the mother took the children to Austria, where she then wished to settle. On 20 August 1992 the father applied for return of the children. On 8 September the mother filed an application for custody of the children with the District Court (Bezirksgericht) of Linz. On 27 May 1993, after approximately 9 months of proceedings, the same Court dismissed the father’s application for return. The Court considered that the children were now in the most stable situation they had known since their birth. They were at school and were well integrated.
Return would subject them to a serious risk of psychological harm, as they would be separated from the person who had the greatest importance in their lives and taken to an unfamiliar environment. The mother was moreover the subject of a warrant for arrest for child abduction in the United States.
On 2 September 1993 the Regional Court (Landesgericht) of Linz confirmed the decision at first instance: the removal was wrongful but the conditions for application of the exception of Article 13(1)(b) were met. The father appealed to the Supreme Court of Austria (Oberster Gerichtshof).