Rights of Custody – Art. 3
It was not disputed that, under Mexican family law, the parents exercised over their children parental authority which can be forfeited, in the situations listed by law, pursuant to a court ruling. According to the mother, the father had forfeited parental authority but she did not provide evidence of any statutory or court provision in support. On the other hand, the father had produced recent and detailed attestations showing that he had indeed exercised parental responsibility before and after the separation.
In particular, it was proven that the mother had entrusted the children to their father’s custody at all week-ends during the time when the children had remained in Mexico after the mother’s departure for France and that their return was planned for 23 August 2010. The mother had accordingly not proved in what respect the father did not exercise custody at the time of the retention, within the meaning of Art. 5(1)(a).
Acquiescence – Art. 13(1)(a)
Having found that the application had been made less than a year after the children’s retention, the Court of Appeal (Cour d’appel de Rennes) considered that while the father had formally applied to the Mexican Central Authority three and a half months after the children’s retention, implied acquiescence to the retention could not be deduced from that fact, “having regard to the dossier he had to establish for the purpose, or from his stay in France in November 2010” to see his children, as the father “actually sought to maintain communication among them against the background of a situation imposed on him”.
Grave Risk – Art. 13(1)(b)
The mother mentioned the pollution of Mexico City, the insecurity due to crime in the Mexico City metropolis, and earthquake risks. She did not, however, show how these risks affected the children personally and directly. She had not mentioned those factors as justification for her decision to move to France, in a document sent to the father in 2010, but had referred to financial and family difficulties. In addition, the Court of Appeal noted that these factors had not deterred her from living in Mexico from 1998 to 2010 and raising two children there.
It further noted that the mother had not seen fit to apply to the Mexican authorities for permission to move to France with the children, without explaining the reasons which in her view could jeopardise her right to a fair trial in Mexico. The Court of Appeal made it clear that it did not affirm that the pleas raised by the mother were groundless. They might be used in connection with the issue of custody, but were not sufficient proof of a grave risk.
Objections of the Child to a Return – Art. 13(2)
The lower-court judges had drawn the consequences of the elder child’s spontaneous and sincere objection to a return to refuse to order the children’s return. The Court of Appeal pointed out, however, that the children had been with their mother alone for many months, without regular relations with the father. The mother’s influence on the feelings expressed by the children in their interview could therefore not be disregarded.
In addition, it was not specified how the Family Court had explained to the children the difference between the return contemplated pursuant to the Convention and the ruling on the merits regarding custody. The child’s statements reflected her desire to live in France but not a reasoned objection (having regard to her age and maturity) to a return to Mexico in connection with a discussion and decision by the appropriate court to rule on the merits of the rights of custody.
Jurisdiction Issues – Art. 16
The father petitioned the Court of Appeal to hold that the Mexico City court had jurisdiction to rule upon the children’s custody and residence. The Court held that the issue had not been referred to it, and if it had been, it could only have declined jurisdiction since under Art. 16, it could not have ruled on the merits of the rights of custody.
The mother applied for the children to be interviewed. The Court of Appeal pointed out that Article 388-1 of the French Civil Code allowed a minor capable of understanding to testify to the court in any proceedings relating to it. It pointed out, however, that the children concerned, aged 9 and a half and 6 and a half, did not have in fact the “understanding required to express before a court their feelings not about the issue of their habitual residence, which was not asked of the court, but of their return to Mexico” under the Convention. Applying the final paragraph of Article 26, the Court of Appeal found the mother liable for the father’s travel and representation expenses and the costs of the children’s return to Mexico.
Author of summary: Aude Fiorini