CASE

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Case Name

CA Paris, 30 mai 2006, No de RG 06/00395

INCADAT reference

HC/E/FR 1010

Court

Country

FRANCE

Name

Cour d'appel de Paris, Première Chambre Section C

Level

Appellate Court

Judge(s)
Périé (président); Matet & Chadeville (conseillers)

States involved

Requesting State

NETHERLANDS - KINGDOM IN EUROPE

Requested State

FRANCE

Decision

Date

30 May 2006

Status

Final

Grounds

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

Order

Appeal dismissed, return refused

HC article(s) Considered

13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions
Art. 11 of Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
Authorities | Cases referred to

-

Published in

-

SUMMARY

Summary available in EN | FR

Facts

The application concerned two children born in the Netherlands in May 1997 and 1999. The parents divorced in 2001 and entered into an agreement according to which the children would primarily reside with their mother in the Netherlands and with their father during the holidays. Following a summer vacation in 2004, the father did not take the children back.

On December 7, 2005, the Tribunal de grande instance [ordinary court of first instance] of Paris declared the retention wrongful but refused to send the children back owing to a grave risk of harm.

The Public Prosecutor appealed this decision. By a decision of March 23, 2006 [INCADAT Reference: HC/E/FR 1011], the Appeal Court of Paris found that the removal was wrongful and ordered the Public Prosecutor to provide it with the necessary information to determine whether there was a grave risk on return and whether concrete protective measures had been taken in the State in which the children customarily resided.

The Public Prosecutor argued that the risk of harm was negated by the declaration previously provided by the Netherlands which stated that upon the children's return the Bureau de protection de la jeunesse [youth protection bureau] would support the children with their reintegration into the Netherlands and would support the mother in her role as a "youth worker" for the children (éducatrice).

Ruling

The decision at first instance was confirmed and the children's return was refused on the basis of Article 13(1)(b). The ruling should be sent urgently to the Dutch authorities via the French Central Authority, in accordance with Article 11(6) of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).

Grounds

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

The father argued that when his daughter was aged 7 she had been the victim of rape at the family residence by her mother's live-in partner. He stated that he had filed a complaint in that regard in September 2004 in France.

The Court found that the evidence produced by the Public Prosecutor revealed that the Dutch police services attempted in vain to make a surprise visit to the mother's residence and never questioned the alleged perpetrator of the rape.  According to the civil status and police files there was no link between the mother and this man, nor the commission of an offence.

The Court noted however that the mother had admitted to engaging in a relationship with the man and that no preventive measures had been taken when the child had made serious accusations and expressed great reservations about returning to live with her mother.

The mother denied the children's statements. The Court concluded that there was a grave risk of harm and upheld the judgment at first instance (except for the allocation of responsibility for costs of the proceedings to the Central Authority).