Eastern High Court (Østre Landsret)
3 January 2014
Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)
Appeal dismissed, return ordered
The Danish Act No. 793 of 27 November 1990 on International Enforcement of Custody Decisions, etc. (International Child Abduction), Sections 10, 11(2) and 11(3)
(§§ 10, 11, nr. 2 og 11, nr. 3, i bekendtgørelse af lov om international fuldbyrdelse af forældremyndighedsafgørelser m.v. (internationale børnebortførelse)
In the time before the wrongful retention in Denmark, the child lived with her mother in Poland, and the father, who lived in Denmark, had visitation rights. During the summer holidays, in July 2013, the child visited her father in Denmark. After the end of the holidays, the father kept the child in Denmark without the consent of the mother.
The City Court (first instance) determined that the child was living in Poland before the removal and that a return to Poland would not harm the child. Therefore, the removal/retention was wrongful and that the child should go back to the mother in Poland.
The Eastern High Court (second instance) upheld the decision.
The parents had shared custody of the child, the child had her legal residence in Poland and the mother did not consent to the father keeping the child in Denmark after the end of the summer holidays. Consequently, the City Court ordered that the retention infringed the mother's rights of custody.
The City Court considered whether there were circumstances that could constitute a grave risk of the child's return exposing her to physical or psychological harm or otherwise placing her in an intolerable situation, but it found that there were no indications of that in the present case.
During a conversation between the judge in the City Court (first instance) and the child, the child objected to being returned to the mother. Considering the child's age and the uncertainty as to whether the child had understood the consequences of moving to Denmark from Poland (where she had lived since her birth, and where she had been residing with the mother since the parents' separation in 2009), the City Court decided that no decisive significance should be assigned to the objections of the child.
Author: Danish Central Authority