CASE

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Case Name

6Ob73/12x, Oberster Gerichtshof

INCADAT reference

HC/E/AT 1163

Court

Country

AUSTRIA

Name

Oberster Gerichtshof

Level

Superior Appellate Court

Judge(s)
Pimmer (président), Schramm, Gitschthaler, Kodek, Nowotny

States involved

Requesting State

PORTUGAL

Requested State

AUSTRIA

Decision

Date

19 April 2012

Status

Final

Grounds

Rights of Custody - Art. 3 | Rights of Access - Art. 21

Order

-

HC article(s) Considered

1 3 5 8 21

HC article(s) Relied Upon

3

Other provisions
(Austrian Act concerning non-contentious proceedings)
Authorities | Cases referred to
RIS-Justiz RS0043347; RIS-Justiz RS0043371; RIS-Justiz RS0043240;RIS-Justiz RS0042916; 3 Ob 131/04t; RIS-Justiz RS0007104; RIS-Justiz RS0044088; RIS-Justiz RS0074552 [T3]; 2 Ob 537/92 ; 5 Ob 47/09m; RIS-Justiz RS0074561 [T3]; RIS-Justiz RS0074568 [T8] = 2 Ob 103/09z; 6 Ob 242/09w; RIS-Justiz RS0112662; RIS-Justiz RS0074568 [T1, T2]; 1 Ob 51/02k; RIS-Justiz RS0109515 [T13, T14, T15]; Cour européenne des droits de l'homme, Affaire Glesmann c. Allemagne, Requête No 25706/03.

INCADAT comment

Article 12 Return Mechanism

Rights of Custody
What is a Right of Custody for Convention Purposes?

SUMMARY

Summary available in EN | FR | ES

Facts

The case concerned one child. The family lived in Portugal. After the parents separated in 2007, the mother obtained sole custody of the child and the father rights of access, that he exercised as frequently as possible.

In August 2011 the mother moved to Austria with the child, as she was unable to find employment in Portugal. At first instance and on appeal, the father's return application was dismissed.The father appealed to the Oberster Gerichthof (Supreme Court).

Ruling

Appeal inadmissible as it did not raise a sufficiently significant issue of law.

Grounds

Rights of Custody - Art. 3


The Oberster Gerichthof (Supreme Court) pointed out that the requirements for wrongfulness under Article 3 of the 1980 Hague Child Abduction Convention were cumulative and stressed that if the father's right did not include a right to determine jointly the location of the child's residence, then the removal was not wrongful.

Article 3 required breach of an exclusive or shared right of custody. In the event of the parents' separation, only the parent with whom the child lives meets that requirement: exercise of mere rights of access is not sufficient.

In the case in point, the Court noted that it was not disputed that at the time of the removal, the father did not have a right to determine jointly the location of the child's residence. Even in strictly practical terms, the father exercised mere rights of access.

Rights of Access - Art. 21


While the appeal referred to Article 21 of the 1980 Hague Child Abduction Convention, that was not sufficient justification for the child's return since Article 8 of the 1980 Hague Child Abduction Convention required a breach of custody rights and not of mere rights of access.

Author of the summary: Aude Fiorini

INCADAT comment

What is a Right of Custody for Convention Purposes?

Courts in an overwhelming majority of Contracting States have accepted that a right of veto over the removal of the child from the jurisdiction amounts to a right of custody for Convention purposes, see:

Australia
In the Marriage of Resina [1991] FamCA 33, [INCADAT cite: HC/E/AU 257];

State Central Authority v. Ayob (1997) FLC 92-746, 21 Fam. LR 567 [INCADAT cite: HC/E/AU 232];

Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT cite: HC/E/AU 294];

Austria
2 Ob 596/91, OGH, 05 February 1992, Oberster Gerichtshof [INCADAT cite: HC/E/AT 375];

Canada
Thomson v. Thomson [1994] 3 SCR 551, 6 RFL (4th) 290 [INCADAT cite: HC/E/CA 11].

The Supreme Court did draw a distinction between a non-removal clause in an interim custody order and in a final order. It suggested that were a non-removal clause in a final custody order to be regarded as a custody right for Convention purposes, that could have serious implications for the mobility rights of the primary carer.

Thorne v. Dryden-Hall, (1997) 28 RFL (4th) 297 [INCADAT cite: HC/E/CA 12];

Decision of 15 December 1998, [1999] R.J.Q. 248 [INCADAT cite: HC/E/CA 334];

United Kingdom - England & Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654, [1989] 2 All ER 465, [1989] 1 FLR 403, [1989] Fam Law 228 [INCADAT cite: HC/E/UKe 34];

Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [INCADAT cite: HC/E/UKe 880];

France
Ministère Public c. M.B. 79 Rev. crit. 1990, 529, note Y. Lequette [INCADAT cite: HC/E/FR 62];

Germany
2 BvR 1126/97, Bundesverfassungsgericht, (Federal Constitutional Court), [INCADAT cite: HC/E/DE 338];

10 UF 753/01, Oberlandesgericht Dresden, [INCADAT cite: HC/E/DE 486];

United Kingdom - Scotland
Bordera v. Bordera 1995 SLT 1176 [INCADAT cite: HC/E/UKs 183];

A.J. v. F.J. [2005] CSIH 36, 2005 1 SC 428 [INCADAT cite: HC/E/UKs 803];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Switzerland
5P.1/1999, Tribunal fédéral suisse, (Swiss Supreme Court), 29 March 1999, [INCADAT cite: HC/E/CH 427].

United States of America
In the United States, the Federal Courts of Appeals were divided on the appropriate interpretation to give between 2000 and 2010.

A majority followed the 2nd Circuit in adopting a narrow interpretation, see:

Croll v. Croll, 229 F.3d 133 (2d Cir., 2000; cert. den. Oct. 9, 2001) [INCADAT cite: HC/E/USf 313];

Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir 2002) [INCADAT cite: HC/E/USf 493];

Fawcett v. McRoberts, 326 F.3d 491, 500 (4th Cir. 2003), cert. denied 157 L. Ed. 2d 732, 124 S. Ct. 805 (2003) [INCADAT cite: HC/E/USf 494];

Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008), [INCADAT cite: HC/E/USf 989].

The 11th Circuit however endorsed the standard international interpretation.

Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) [INCADAT cite: HC/E/USf 578].

The matter was settled, at least where an applicant parent has a right to decide the child's country of residence, or the court in the State of habitual residence is seeking to protect its own jurisdiction pending further decrees, by the US Supreme Court endorsing the standard international interpretation. 

Abbott v. Abbott, 130 S. Ct. 1983 (2010), [INCADAT cite: HC/E/USf 1029].

The standard international interpretation has equally been accepted by the European Court of Human Rights, see:

Neulinger & Shuruk v. Switzerland, No. 41615/07, 8 January 2009 [INCADAT cite: HC/E/ 1001].

Confirmed by the Grand Chamber: Neulinger & Shuruk v. Switzerland, No 41615/07, 6 July 2010 [INCADAT cite: HC/E/ 1323].


Right to Object to a Removal

Where an individual does not have a right of veto over the removal of a child from the jurisdiction, but merely a right to object and to apply to a court to prevent such a removal, it has been held in several jurisdictions that this is not enough to amount to a custody right for Convention purposes:

Canada
W.(V.) v. S.(D.), 134 DLR 4th 481 (1996), [INCADAT cite: HC/E/CA17];

Ireland
W.P.P. v. S.R.W. [2001] ILRM 371, [INCADAT cite: HC/E/IE 271];

United Kingdom - England & Wales
Re V.-B. (Abduction: Custody Rights) [1999] 2 FLR 192, [INCADAT cite: HC/E/UKe 261];

S. v. H. (Abduction: Access Rights) [1998] Fam 49 [INCADAT cite: HC/E/UKe 36];

United Kingdom - Scotland
Pirrie v. Sawacki 1997 SLT 1160, [INCADAT cite: HC/E/UKs 188].

This interpretation has also been upheld by the Court of Justice of the European Union:
Case C-400/10 PPU J. McB. v. L.E., [INCADAT cite: HC/E/ 1104].

The European Court held that to find otherwise would be incompatible with the requirements of legal certainty and with the need to protect the rights and freedoms of others, notably those of the sole custodian.

For academic commentary see:

P. Beaumont & P. McEleavy The Hague Convention on International Child Abduction, Oxford, OUP, 1999, p. 75 et seq.;

M. Bailey The Right of a Non-Custodial Parent to an Order for Return of a Child Under the Hague Convention; Canadian Journal of Family Law, 1996, p. 287;

C. Whitman 'Croll v Croll: The Second Circuit Limits 'Custody Rights' Under the Hague Convention on the Civil Aspects of International Child Abduction' 2001 Tulane Journal of International and Comparative Law 605.