Borgarting lagmannsrett (Borgarting Court of Appeal)
Anne-Mette Dyrnes, Anne M. Samuelson, Jørgen F. Brunsvig
2 June 2015
Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2) | Settlement of the Child - Art. 12(2)
Appeal allowed, return ordered
1 child wrongfully removed at age 7 – National of Poland –unmarried parents– Father national of Poland – Mother national of Poland – Disputed custody rights– Child lived in Poland until August 2014 – Application for return filed with the Central Authority of Poland in September 2014 – Return ordered – Main issues: Article 3 – Rights of custody – the father had limited custody rights but these extended to the right to decide the child’s habitual residence and therefore the father had rights of custody within the meaning of the Convention; Article 13(1)(b) – Grave risk of harm - there were no grounds for concluding that return would be “clearly unfavourable to the child” or that he would most likely suffer harm if returned. Therefore the exception did not apply; Article 13 – Child’s objections - the fact that the child said he wanted to live with his mother was not a ground for concluding that the child was opposed to returning to Poland, therefore the exception did not apply.
The case concerned a child born to Polish parents in 2007. Custody was disputed. The mother and the father lived together in Poland from the time the child was born until the autumn of 2009, when the parties split up. Subsequently, the child lived with the mother while the father had access. In 2012, the mother married another Polish man resident in Norway. The mother then wished to move to Norway with her son, but the father did not consent to this. The mother did not succeed with an application to the Polish court to move her son to Norway, but nevertheless took her son there in mid-August 2014. In September 2014, the father claimed return of the child to Poland under the Hague Convention. The case was heard by Oslo County Court in March 2015 and the court held that the child should be returned to Poland. The mother appealed to Borgarting Court of Appeal.
The appeal was rejected by unanimous ruling, and the return decision was upheld. The exceptions to the duty to return did not apply, and the conditions for return were therefore met. The decision was appealed to the Supreme Court, but the appeal was not admitted.
Author: Bjarte Wivestad Engesland, Higher Executive Officer, Royal Norwegian Ministry of Justice and Public Security
The mother submitted that the father’s custody rights were limited under Polish law. The court stated that “[t]he key characteristic of the term “custody” in the Hague Convention is the right to decide the child’s habitual residence”. The court concluded that the father’s limited custody rights included the right to refuse the mother permission to move the child abroad without consent, and pointed out that the mother had not been granted permission for the move by the Polish courts. Accordingly, the father had custody within the meaning of the Hague Convention and under the Norwegian law, which must be interpreted in accordance with convention case law. The court therefore held that the abduction was unlawful and that the general rule thus required the return of the child.
The court first considered whether there was a “serious risk that return would cause physical or psychological harm to the child”. The court pointed out that Norwegian Supreme Court case law has established that “[a]n ordinary assessment of what will be in the best interests of the child does not provide grounds for refusing return under this alternative”. Further, case law also provided that refusal under Article 13(1)(b) “is conditional on return being clearly unfavourable to the child and on an unfavourable outcome being clearly more likely than not”. In its specific assessment, the court pointed out that it would be unfavourable to the child to move back and forth between Poland and Norway, and that there was a risk that the child would have an emotional reaction upon return to Poland. Nonetheless, the court found “no clear grounds for concluding that return will cause psychological or physical harm to the child”. Further, the court referred to an expert opinion which stated that the child had strong ties to both parents and that he was a relatively adaptable and robust child. The court therefore concluded that there were also no grounds in this respect for concluding that return would be “clearly unfavourable to the child”, and that it was therefore most likely that the child would not suffer harm if returned. The court concluded that the exception did not apply.
The court discussed the conversation the child had had with the lower court judge, and began by stating that it was correct that the child would prefer to live with his mother and sister if he had to choose. However, the court pointed out that the child had not expressly opposed a move to Poland, and that he had not made any final choice between his mother and his father in their respective countries. Moreover, the court held that the child’s opinion could not be given decisive weight in the present instance in any event, and that it was up to the Polish courts to decide where it would be best for the child to live. In its assessment of the expert opinion, the court stated that the fact that the boy had said that he wanted to live with his mother did not necessarily mean that he opposed moving in with his father. The child had ties to both parents, and the court found that it had not been substantiated that he did not wish to visit his father. The court therefore concluded that there were no grounds for concluding that the child had opposed return in a legal sense, and the exception did not apply.
The exception in section 12 (a) of the Child Abduction Act concerning settlement (corresponding to “settlement of the child” in Article 12, first paragraph, of the Hague Convention) did not apply due to the court’s conclusion that the father had applied for return in September 2014, shortly after the abduction in mid-August 2014.