The case concerned two children, born in March 2005 and August 2006, whose parents had gotten married in 2004. On 3 January 2011, the father left Spain, where the family had their habitual residence, and travelled to Peru with the children.
On 6 January, the mother travelled to Peru to get the children back to Spain. The father and the children were staying with the father’s parents. The father did not allow the children to return to Spain with their mother, and the mother went back alone.
On January 19, the father initiated proceedings for sole custody in Peru. On January 26, the father travelled to Spain without the children. The mother later alleged that the father had told her that he would not let her see the children again and that he would leave Spain to evade the Spanish justice system. The mother reported these events on 27 January 2011.
On 31 January, the first instance court (Juzgado de Primera Instancia e Insturcciones de Torrej?n de Ardoz, Madrid, Spain) decided that the parents had joint custody rights and ordered a prohibition to leave Spain against the father. During these proceedings, the parents agreed that the children would go back to Spain with their mother; the father signed an authorisation in that regard.
On 9 February, the mother travelled to Spain to pick up the children but the grandparents prevented the return. The mother filed a complaint with the police and a habeas corpus petition against the grandparents. In those proceedings the grandparents were considered the children’s de facto custodians.
On 24 May, the Peruvian Central Authority (Ministerio de la Mujer y Poblaciones Vulnerables) initiated judicial proceedings for the return of the children to Spain under the 1980 Hague Child Abduction Convention.
In the Hague return proceedings, the father alleged that he had left Spain with the mother’s consent. He argued that the mother had orally authorised the removal because she wanted to start a new life with her new partner. The father also alleged that the decision to travel to Peru was based on the mother’s inappropriate behaviour since she used to go to her new partner’s house with the children.
In July 2012, the return request was rejected for the following reasons:
a) There was no wrongful removal or retention due to the mother’s consent. Additionally, the court considered that the Spanish decisions had been issued after the children entered Peru;
b) As the children were born within wedlock, both parents held custody rights; it was considered that the existence of a judicial decision granting the mother sole custody rights before the removal was not proved;
c) The children were settled in their new environment in Peru, they enjoyed a good standard of living and a return would have implied a grave risk of harm to them (Art. 13(1)(b) of the 1980 Hague Convention).
The mother appealed the decision. She stated that the facts of the case which pointed to a wrongful removal had not been taken into account, that is, the settlement before the Spanish Court in which both parents had agreed that the children would return to Spain.
In November 2012, the Civil Division of the Superior Court (Segunda Sala Civil de la Corte Superior de Justicia de Lima Norte) affirmed the first instance decision due to the mother’s consent or acquiescence to the removal. The Court also held that there was no wrongful retention since the grandparents had been considered the children’s de facto custodians in the habeas corpus proceedings. The mother appealed.
