NETHERLANDS - KINGDOM IN EUROPE
Rechtbank 's-Gravenhage (District Court of The Hague)
Olland, Verloop, Zetstra
NETHERLANDS - KINGDOM IN EUROPE
22 February 2018
Upheld on appeal
Grave Risk - Art. 13(1)(b)
Child national of Australia and Germany, wrongfully retained at age two – Unmarried parents – Father national of Australia – Mother national of Guatemala and Germany – Joined custody – Child lived in Australia until November 2017 – Application for return filed with the courts of The Netherlands on 2 January 2018 – Return ordered – Main issue: 13 (1)(b) allegation of domestic violence; no grave risk of harm to the minor. Adequate institutions and facilities for protection from domestic violence in Australia. Decision upheld by the Court of Appeal of the Hague by decision on 11 April 2018.
Child was born in Germany in 2015 to unmarried parents who had joint custody. The father is a national of Australia and the mother a national of Guatemala and Germany. The child lived in Germany with her mother until they joined the father about six months later in Australia. In the subsequent period the child resided there with the mother and father, except for some short intervals for family visits or a family holiday. The mother’s family lives in Guatemala, Germany and the Netherlands. In November 2017 the mother and the child left Australia for the Netherlands, and a few weeks later the mother informed the father that she would not be returning to Australia.
The court ordered the return of the child to Perth, Australia. If the mother fails to return the child, she shall hand over the child and the necessary travel documents to the father, so that the father can himself return to Australia with the child. The mother is to pay to the father the costs incurred by him in relation to the abduction and return of the child.
Author: Judge Annette Olland
The mother claimed that during her relationship with the father she was regularly exposed to domestic violence in presence of the child. If the child were to return to Australia this would place her in an intolerable situation as referred to in Article 13(1)(b) of the Convention. The father explicitly denied the mother’s allegations of domestic violence, stating reasons.
The court was of the opinion that the mother failed to adequately substantiate her claims. The photographs submitted by the mother cannot serve as evidence in this respect, since it is not clear when they were taken and since the cause of the injuries they show cannot be ascertained. The Court has found no other indications that the child’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. Therefore, the mother’s invocation of this ground for refusal fails.
As an obiter dictum the Court considered that, even had the domestic violence as alleged by the mother been established, this in itself would not be sufficient to conclude that the minor’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. In assessing whether the minor’s return would place him/her in an intolerable situation as referred to in Article 13(1)(b) of the Convention, all circumstances must be duly taken into consideration, including whether child protection measures or other adequate arrangements can be made to ensure that the consequences of domestic violence do not pose a risk to the minor (or no longer pose a risk). In this case, it had not been proven that there is no alternative but to keep the child from returning to Australia in order to avoid the alleged risk of domestic violence. The Court noted that - as was also clear from the mother’s contentions and exhibits - Australia has institutions and facilities available for protecting victims of domestic violence. It is also possible to take legal measures to avoid or combat the risk of domestic violence there. It had not been established that the Australian institutions were unable to provide adequate help to the mother and child; indeed, the file documents show that the mother did not pursue the requests and measures initially taken.