7Ob72/98h, Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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The three children, two girls and one boy, were 2, 4 and 5 years old, at the date of the alleged wrongful retention. The parents were married and the family lived in France. In the summer of 1997 the family travelled to Austria for a holiday. The father was arrested during the holiday following accusations by the mother that he had threatened her with violence.
On 14 August 1997 the District Court of Gmunden granted interim custody to the mother. On the same day the father was acquitted of the charges by the criminal court and returned, without the children, to France. On 1 September the father lodged an application for the return of the children. On 8 October the District Court of Gmunden held that the retention of the children by their mother was wrongful and ordered their return to France.
The mother appealed. The Appellate Court allowed the appeal and refused to order the return of the child upon learning that the competent French court (Tribunal de Grande Instance de Narbonne) had decided on 7 October that the children should remain with their mother in Austria. The father appealed to the Supreme Court (Oberster Gerichtshof).