Federal Supreme Court
Superior Appellate Court
Nicolas von Werdt, Luca Marazzi, Felix Schöbi, Grégory Bovey
8 August 2016
Habitual Residence - Art. 3 | Consent - Art. 13(1)(a) | Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b)
Appeal dismissed, return ordered
Articles 5 and 16(3)/(4) of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
Two children wrongfully removed at ages nine and seven – Married parents – Shared parental custody – Children lived in Spain until 5 February 2016 – Application for return filed with the courts of Switzerland on 17 February 2016 –Application dismissed – Main issue(s): Habitual residence - is understood to mean the actual centre of the child's life, which is determined by the factual circumstances; Consent - the departure of the spouse does not require any approval by the other; the only thing requiring approval is the change of the children's place of residence abroad; Grave risk - must be interpreted restrictively: meaning a serious danger, initial language and reintegration difficulties typically do not constitute a serious danger.
The parties are married and the parents of two children. The older child suffers from Down syndrome (trisomy 21) and autism. The younger child suffers from a language development disorder.
On 25 October 2015, the father gave the mother written permission to move to Spain with the children and to send them to school there; on 14 December 2015, he also issued her with an authorization to represent both parents in dealings with schools and doctors.
On 26 December 2015, the mother travelled with the children to Spain.
At the end of January 2016, the father travelled to Spain for a visit. There he regularly spent time with his sons for a few days. Subsequently he took them to Switzerland without the mother's knowledge, where he arrived on 5 February 2016.
On February 8, 2016, he sent a text message to the mother, revoking his permission. In a letter dated 7 March 2016, he also informed her that the consent to move to Spain had been non-binding due to deception.
On 17 February 2016, the mother submitted a request for the return of the two children. By decision of 18 April 2016, the High Court of the Canton of Berne ordered the father to return the two children to Spain. The father appealed against this decision on 19 April 2016.
The appeal was dismissed and the return of the children to Spain confirmed
The father claimed that no habitual residence had been established in Spain at all, but that the children had been habitually resident in Switzerland. Hence, the Convention would not apply.
What is meant by the child's habitual residence is not defined in the 1980 Hague Convention. The term is to be interpreted in an autonomous manner and is understood to mean the actual centre of the child's life, which is determined by the factual circumstances such as the duration of the child's residence, the relationships established thereby or the probable duration of the residence and the integration. As a rule, the habitual residence coincides with the centre of life of at least one parent; in the normal case of a move - i.e. aside from abduction - with the parent with custody, a child immediately establishes a habitual residence in the new place.
In legal terms, the children's habitual residence in Spain was established immediately when they moved away. The Tribunal came to this conclusion on the basis of the following elements of the facts: Moving away to a new partner; intention of the mother to remain in Spain; deregistration of mother and children in Switzerland; registration of mother and children in Spain on 28 December 2015; enrolment of the children in school; existence of a father's consent to the move and the enrolment of the children there; conclusion of health insurance in Spain.
The father claimed a deficient declaration of consent. He had not known of his wife's new partner and had assumed that she would be on a "time-out" of no more than six months; his wife had pretended to him that she was taking care of an old woman in Spain who would pay for her maintenance in return.
The departure of the spouse does not require any approval by the other; the only thing requiring approval is the change of the children's place of residence abroad. With regard to the children, it can therefore make no difference on which motives the mother's departure was based. The only relevant question for the father's decision-making process is whether the children would be well accommodated, cared for and adequately educated in Spain. In this respect, it is clear that the father had previously examined the environment in which the children would live and the schools they would attend, and that he was also well aware of the children's language and health problems. His agreement to the transfer of the children's whereabouts was therefore based on a thorough knowledge of the facts and was and is therefore free of deficiencies.
The right to determine the child's place of residence - which is decisive for the question of unlawful breach of custody within the meaning of the Convention - is determined by private international law at the child's habitual residence immediately before the removal. Article 9(4) Código civil español refers directly to the Hague Convention for the Protection of Children.
On the basis of the applicability of the Hague Convention, the question arises as to what effects the departure of the children to Spain had on the custody situation. The answer is provided by Article 16(3) of the Hague Convention, according to which custody of the children in Switzerland, continues to apply at the children's new place of residence in Spain. Parental custody under Swiss law corresponds to the Spanish "patria potestad" (parental authority) within the meaning of Article 154 ff. Código civil español. According to Spanish law, patria potestad includes, among other things, the power to keep the children with them. This results in the right to determine residence.
The exception to return in Article 13(1)(b) must be interpreted restrictively. A serious danger exists, for example, if the child is returned to a war or epidemic area or if there is reason to fear that the child will be maltreated or abused after return without timely intervention by the authorities, whereas initial language and reintegration difficulties typically do not constitute a serious danger.
For the disabilities of one child (trisomy 21, autism), Spain should also have a care service available. However, with regard to the linguistic deficits of the family, adequate treatment in Spain will be more difficult to achieve as Spanish language is new for all. However, this does not constitute a serious danger in the sense described above, otherwise parents with children would never be allowed to move to a new language area. This was apparently also the view of the father a few months earlier, otherwise he would not have given his consent to the move to Spain