The child, a girl, was aged 2 _ at the date of the alleged wrongful retention. The parents were married and lived in the United States. In March 2003 the mother took the child to France for a vacation. On 31 March 2003 the mother informed the father that she did not intend to return.
The Tribunal de Grande Instance de Draguignan dismissed the father’s return petition. On 13 April 2004 the Cour d’appel d’Aix-en-Provence overturned the judgement of the trial court and ordered the return of the child. The mother filed an application to challenge the legality of this decision before the Cour de cassation. It was the mother’s case that Article 13(1)(b) was applicable because a new change in the child’s situation would expose her to a grave risk of harm.
She argued that the appellate court should have considered the removal of the child from her settled environment in France in the light of Article 8 of the ECHR, Article 3(1) UNCRC, general principles of public international law as well as constitutional principles. Moreover, the Court should not have ignored the grave risk inherent in the father’s plan to move to Santo Domingo.
The legal challenge to the Cour de cassation did not suspend the enforcement of the Cour d’appel order. In July 2004 the mother was informed that she would be committing a criminal offence if she continued to retain her daughter.
On 23 September the State Prosecutor for Draguignan, assisted by 4 police officers, sought to take the child from her nursery school, however the mother, together with other parents and school staff resisted this attempt. Following a request by the mother the children’s judge for Draguignan placed the child in a care facility and awarded each parent access rights.
On 3 December the Cour d’appel d’Aix-en-Provence ordered that the child be handed over to the father and the next day she was taken back to the United States.
On 14 June 2005 the Cour de cassation dismissed the mother’s challenge against the legality of the appellate judgement and confirmed the return order, noting that the retention had been wrongful and Article 13(1)(b) had not been made out to the standard required under the Convention.
On 26 October the mother filed a petition with the ECHR. In February 2006 a family judge in New York upheld a request by the father to place conditions on the mother’s exercise of access, notably by having judicial supervision of contact and making the mother put up a bond of $25,000. In April 2007 the tribunal de grande instance at Draguignan awarded the mother custody and the father access.
Menu
