HC/E/FR 1007
FRANCE
Cour d'appel de Rouen, Chambre de la Famille
Appellate Court
GERMANY
FRANCE
20 January 2005
Final
Removal and Retention - Arts 3 and 12 | Grave Risk - Art. 13(1)(b) | Procedural Matters
Appeal allowed, return ordered
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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.
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.