CASE

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Case Name

CA Rouen, 20 janvier 2005, No de RG 04/03822

INCADAT reference

HC/E/FR 1007

Court

Country

FRANCE

Name

Cour d'appel de Rouen, Chambre de la Famille

Level

Appellate Court

Judge(s)
Brunhes (président); Bousquel & Robitaille (conseillers)

States involved

Requesting State

GERMANY

Requested State

FRANCE

Decision

Date

20 January 2005

Status

Final

Grounds

Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Procedural Matters

Order

Appeal allowed, return ordered

HC article(s) Considered

3 13(1)(b)

HC article(s) Relied Upon

3 13(1)(b)

Other provisions

-

Authorities | Cases referred to

-

Published in

-

SUMMARY

Summary available in EN | FR

Facts

The application concerned a little girl born in 1996 in Germany to married parents. In December 2003, a German court granted a divorce to the parents on the basis that the parental rights would be jointly shared by both parents, the child would live with her mother, and the father had visiting rights. 

On June 14, 2004, the mother left Germany for France with the child. On September 4, 2004, the Rouen Tribunal de première instance [first instance court] dismissed the application for the return of the child. The Public Prosecutor appealed this decision.

Ruling

Appeal allowed and return ordered. The removal was wrongful and it had not been proven that a return would expose the child to a grave risk of harm.

Grounds

Removal and Retention - Arts 3 and 12

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Grave Risk - Art. 13(1)(b)

The mother claimed that the return of the child to Germany would put her at grave risk of harm since the father was opposed to psychological treatment for the child's nutritional problems and nocturnal enuresis (bed-wetting).

The Court examined the overall evidence presented. It considered that it could not reproach the parents for having different views on the immediacy of treatment considering the divergent opinions of doctors consulted, but, in any case, the parents had joint parental rights and therefore had the responsibility of communicating effectively on the matter.

The Court added that it was obvious the child was distressed but in the absence of proof, no cause for this distress could be excluded, including that the child was distressed by the lack of contact with her father, by the anxiety of her mother, or by the conflict between her parents.

The mother had not established that there was any known danger from contact between the father and child. In fact, it may have been possible that keeping the child in her current situation (no contact with the father) was what made it an intolerable situation.

In these circumstances, it was advisable to allow the judge in the State of the child's habitual residence to preside over the eventual litigation concerning the residence and visiting rights of the parent with whom the child did not reside and to order the return of the child to her place of residence in Bielefeld, in the mother's home if she were to move there in a timely manner, or, failing that, in her father's home.

Procedural Matters

The court considered that although the child was 8 years old, it was not in her best interests to be heard, since it could have intensified her perception of the parental conflict and caused her to take on the weight of a responsibility she was not yet ready to bear.