Habitual Residence – Art. 3
The Cour de cassation noted that the Cour d’appel had been able to deduce from the evidence of several witnesses that the children were habitually resident in England. The residence of the mother and children there was not provisional in nature; the mother was in paid employment and the children were enrolled in nursery school. Moreover the father had himself accepted the relocation to the United Kingdom since he had not challenged the wrongful removal to that country and he had visited the girls there in October 2003 and February 2004.
Rights of Custody – Art. 3
The father sought to argue that the removal could not be wrongful because as a parent his rights of custody were identical to those of the mother. The Court rejected this argument, ruling that the Cour d’appel had been correct in finding the removal to be wrongful insofar as the children were removed to France without agreement and unilaterally by the father. This action had breached the mother’s custody, which had amicably been agreed to by the parents.
Grave Risk – Art. 13(1)(b)
In support of his case that the children would face a grave risk of harm if returned the father relied on a referral made by a doctor to the public prosecutor. According to the doctor the older child had made various allegations: that the mother had left her alone at night with her younger brother and this made her afraid; the mother did not feed her regularly, returned home in the small hours, and slept for part of the day; the mother had also slept with two boys whom she kissed on the mouth and had pretended to strangle the girl. The girl had also informed the doctor that she did not wish to return and live with the mother. In addition the father held that a return would expose the children to an intolerable situation or psychological danger as a result of the change in their current living conditions since they were perfectly integrated into life in France. The Cour de cassation responded by noting how the Cour d’appel had found that a police enquiry carried out in England had revealed no evidence of a harmful home environment, the social services had not opened a case file on the children, and the headmaster of the children’s school had not noticed any signs of harm. The Court further noted that the medical certificate relied on by the father had been compiled more than 3 months after the removal of the children and the Court questioned why the father had not raised the issue of the children being mistreated when he was interviewed by the police in June 2004. Indeed during the course of this interview the father had agreed to a voluntary return, although this was not carried out. In the light of these reasons it was clear that the Cour d’appel had justified its decision and the legal challenge was therefore rejected.
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