8Ob535/92, Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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Interpretation of the Convention
The Supreme Court emphasized that the Convention entered into force in the United States of America on 1 July 1988, i.e., shortly before the wrongful retention of the child. The Court added that the Convention nevertheless entered into force in Austria shortly after the retention (on 1 October 1988). It was therefore not certain that the Convention was applicable to the case at hand. The Court recalled that according to Article 35, paragraph 1, ?This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” It added that the term ?Contracting States” presumed that the Convention had already entered into force in these States but that the Austrian Explanatory Report did not provide details as to the scope of application of the Convention in time. Considering the P?rez-Vera Report, the Court noted that two possibilities in particular had been envisaged: a wide interpretation of the Convention, according to which the Convention would be applicable to any abduction and independently of the date at which it would have taken place, and a more restrictive interpretation imposing application of the Convention to only those abductions which took place after the entry into force of the Convention in the States concerned. The First Commission had retained this last proposal. The Reporter had added that this solution, which did not meet the expectation of the parties, could be amended by the Contracting States so as to allow for retroactive application of the Convention. However, the Court noted that such an agreement did not exist between Austria and the United States. The Supreme Court informed that the moment in time that should be considered was that of the start of the wrongful event. In the case at hand, the date to be taken into account was therefore the date at which the child should have been returned to the father. The duration of the wrongful event should not be taken into account. In the same way, it was not relevant to examine when the child had been taken out of the United States. The Court concluded that the Convention was indeed not applicable to the case at hand.