Oberlandesgericht Hamm, II-11 UF 85/12, 28 June 2012

INCADAT legal file Hague parental abduction

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Rights of Custody – Art. 3
The daughter was born in Germany when her parents were still married, as a result of which the parents had joint custody. The son was born in Poland after the parents had divorced, and the father was entered as such on his birth certificate, meaning that it is also to be assumed that the parents had joint custody of their son. The father did exercise his right to joint custody ? at the end this occurred as access visits. The father’s custody rights were violated when the children were taken abroad.
Grave Risk – Art. 13(1)(b)
The court agreed with the Respondent’s line of argument. The daughter displayed serious and acute suicidal tendencies when faced with the prospect of being returned to Poland. The court advised that the exceptional provision was to be interpreted restrictively.
Regarding the son, the grave risk was assumed due to the fact, that the return of his sister was precluded and he would have to be returned on his own and be separated from the two people with whom he has lived together for his entire life.
Objections of the Child to a Return – Art. 13(2)
Furthermore, the Court agreed that the exception to return under Article 13(2) of the 1980 Hague Convention (the child’s objections) was met in this case.