Aims of the Convention – Preamble, Arts 1 and 2
The purpose of the Convention is to guarantee the immediate return of wrongfully removed and retained children.
Grave Risk – Art. 13(1)(b)
The court understood that the opposition to the return and the mere allegation of the existence of an imminent physical or psychological danger or the possibility of exposing the girl to an intolerable situation were not enough. The extremes foreseen by Article 13(1)(b) of the Convention must be proven by the party that invokes them.
The Court further noted that experts, whether psychologists, welfare workers or professionals of the Custody Department of the Family State Council of Jalisco, had no legal standing to oppose the return of an abducted child. The opinions of such experts did not constitute proof, all the more so since in the present case they had made no reference to any physical or psychological danger or to any intolerable situation.
Objections of the Child to a Return – Art. 13(2)
The Court noted that under Art. 582 of the Civil Code of the State of Jalisco only the views of children aged over fourteen would be considered. In the present case the girl was ten years old, and therefore not mature enough to express an opinion on matters of such importance.
Settlement of the Child – Art. 12(2)
The appellate court noted that the trial judge was not entitled to consider the issue of settlement and should have ordered the return of the child forthwith because the return proceedings had commenced before the expiry of the 12 month time limit provided for in Article 12. It was irrelevant that the child had ultimately been living in Mexico for two years by the time the judgment was handed down.
Human Rights – Art. 20
Having considered existing Mexican case law, the Court noted that Article 20 which allows a judge to refuse a return when to do so would conflict with the basic principles of Mexican law regarding the protection of human rights and basic freedom rights, was not applicable.
This was because Mexican law, provides that the child should be with the mother since the latter had been awarded custody. Moreover, it was with the mother where conditions for growth, stability, love, education and other necessary elements were present for the proper development, maturity and evolution of the girl.
Procedural Matters
It was noted that were the father not to seek the immediate execution of the return order this would nevertheless be ordered and he would bear the cost of the girl’s travel expenses, as well as any expenses associated with appointing a psychologist to accompany the child, were this deemed necessary.
