Re S., Auto de 21 abril de 1997, Audiencia Provincial Barcelona, Secci?n 1a

INCADAT legal file Hague parental abduction

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Rights of Custody – Art. 3
Under Israeli law the parents had joint rights of custody and therefore the joint right to decide the child’s place of residence. Neither parent could take the child out of the country without the consent of the other. The court noted that even in a case where the mother had custody rights and the father had visitation rights, the custodial parent could not unilaterally take the child out of the country because this would negate the right given to him by the court.
Human Rights – Art. 20
The District Court held that the return of the child would be contrary to the basic principles of Spanish law concerning the protection of human rights and basic liberties, therefore the exception under Article 20 applied. It noted that the Convention purports to restore the status quo ante, however, this was impossible in the instant case. The fact that the Rabbinical Court had granted the father sole custody, abeit on an interim basis, meant that the child would be removed from the mother in order to punish her for her ‘rebellion’. No account would be taken of the best interests of the child who had grown up solely with the mother. The court stated that this was equivalent to a denial of the natural guardianship of the child in Israel and was, in itself, contrary to basic principles of Spanish law. The finding that the mother was a Moredet would worsen her situation and would result in the absolute negation of her rights, not only in relation to the child, but also within the Israeli community. The court further held that in accordance with paragraph 24 of the Spanish Constitution it had to take into account the actual protection of the mother and child since they were Spanish citizens.
Procedural Matters
It may be noted that 10 months elapsed between the return petition being lodged and the first instance hearing while there was a further delay of 12 months before the appeal was heard.