Aims of the Convention – Preamble, Arts 1 and 2
The Court referred to the Explanatory Report to the 1980 Hague Child Abduction Convention by Professor Perez-Vera and remarked that the Convention, as well as the Uruguayan law that regulates these proceedings, stands on the principle of the best interest of the child.
Grave Risk – Art. 13(1)(b)
The Court took into account the testimonies of the mother’s witnesses and the psychological report of the mother and the children, in which the experts concluded that they had been victims of family violence when they lived in Spain. Among the witnesses, the mother’s brother, who had lived with the family in Spain, reported some violent episodes that he had witnessed, as well as the father’s cocaine use and his ties to terrorist group ETA.
The Court stated that the admissibility of the grave risk exception had to be absolutely restrictive and the risk had to be evaluated with the utmost care. The Court held that not only the child’s exposure to an intolerable situation if returned to the habitual residence had to be considered, but also, if the risk were to be proved, whether such risk could be prevented or avoided by mechanisms or specific protection measures in the requesting State.
The Court considered that the alleged risk of harm existed and held that, according to the evidence of the case, there was a risk that the child would be placed in an intolerable situation which represented a risk of greater harm than having to leave his habitual residence in Spain. In addition, the available protection measures in the legal system and the social network of the State of habitual residence would not have been sufficient to mitigate the risk.
The father noted that the mother had not filed a complaint of domestic violence in Spain even though she had had the possibility of doing so. The Court considered it adequate to remark on the fact that protection measures objectively offered in a community are sometimes not readily available or accessible. Thus, the Court held that the mother had not had effective access to adequate protection measures to make the complaint: she was alone in Spain because her relatives had returned to Uruguay.
Besides, even when they had been in Spain, their presence had not been sufficient to protect them because she did not allow them to intervene out of fear. In addition, the fact that they lived in a small town prevented the mother from filing a complaint against the father there. Consequently, the Court rejected the father’s arguments and affirmed the non-return decision of the first instance court.
In addition, the Court considered that, according to the experts’ reports, the child was settled in the new family and social environment, where he was properly taken care of. Besides, the child did not include a father figure in the activities conducted during the assessment.
As the child refused to give testimony in the judge’s interview, his parents asked for the child and his brother to be excused from the hearing. Therefore, the Court held that the children’s opinions would have to be taken from the experts’ reports so as to comply with Article 19 of Law No. 18.895. The Court took into account both the 1980 Hague Child Abduction Convention and Law No. 18.895 which regulates the procedural aspects of return proceedings internally in Uruguay.
The Court evaluated the father’s procedural behaviour throughout the proceedings in which he had not objected to the mother’s arguments after the grave risk allegation had been raised; he only stated that she had not provided proof to back her arguments and that she had not filed the complaint in Spain. The Court also considered that the father did not offer any commitments to ensure the child’s safe return to Spain or any other necessary guarantees for the family during the custody proceeding in Spain.
Author of the summary: Professor Nieve Rubaja and Antonela Rojas, Argentina