Kutaisi Court of Appeal
N. Kalandadze; I. Peranidze, L. Mikava
27 December 2018
Grave Risk - Art. 13(1)(b) | Settlement of the Child - Art. 12(2) | European Convention on Human Rights (ECHR)
United Nations Convention on the Rights of the Child - Article 6 (2), Article 9 (1) and Article 18 (1)
European Convention on Human Rights - Article 8.
Elsholz v. Germany (Application no. 25735/94);
TK & KM v. the United Kingdom (Application no. 28945/95);
Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention.
One child wrongfully retained at age 5 – National of Germany - Divorced parents – Father national of Germany – Mother national of Russia – Parents had joint custody – Child lived in Germany until 13 July 2017 – Application for return was filed with the Court on 30 August 2018 – Return refused – Main issue(s): Article 13(1)(b), grave risk due to violence from the father; Article 12, child settled in new environment.
The child was born in 2012 in Germany. The Mother is a Russian citizen and the father is a German citizen. The couple married in 2011 and divorced in 2017. On 13 July 2017 the father gave consent for the mother to take their son abroad for 3 weeks and the mother travelled to Georgia with the child. In Georgia she married a Georgian citizen. On 10 October 2017 the mother was granted Georgian citizenship. The child is registered in the city of Batumi and goes to school there.
The Kutaisi Court of Appeal upheld the first instance decision and refused to order the return of the child. It considered that the child was integrated in his new environment. The court considered that, even though the main aim of the convention is to return the child to the country of habitual residence, the assessment of the evidence in the case demonstrated that the time the child spent in Georgia (more than a year) was enough for him to integrate in the new environment.
The applicant appealed at the Supreme Court of Appeal where the case was settled by agreement. The parents agreed that the child would live in Georgia.
The abducting parent argued that the father was violent, aggressive and often physically assaulted her and the child. She provided relevant evidence to the court. The psychological report prepared by the LEPL Social Service Agency stated that the child had a psychological dependence on the mother and return to Germany might have an adverse effect on him. The child was interviewed during the proceedings and he strongly objected to the return.
Based on the evidence, the court considered that the return of the child to Germany would not be reasonable because of the risk of harm from the father. It observed that there was not a safe environment for the child in Germany and that upon return there was a risk that the psycho-emotional state of the child would deteriorate.
The court considered that even though the main aim of the convention is to return the child to the country of habitual residence, the assessment of the provided evidence demonstrated that the time the child spent in Georgia (more than a year) was enough for him to integrate in the new environment. The court of appeal considered that the child would suffer harm upon return which would be against his best interests.
The Court of Appeal stated that in order to protect the interests of the minor its main objective is to consider the child as a person and not as an object of the parents. In those cases where Article 8 of the European Convention on Human Rights is involved, the primary consideration should be given to the rights of the child. The court of appeal took into consideration the case law developed by the ECtHR according to which the best interests of the child in the context of international child abduction should be assessed in light of the exceptional grounds of non-return established by the Hague Convention in accordance with articles 12, 13 (a) and (b) and Article 20.
The court stated that there was no single piece of evidence presented in the case which could convince the court that the return of the minor would be possible without the infringement of his rights.
Author: Nata Varazashvili