Federal Supreme Court
Superior Appellate Court
Nicolas von Werdt, Felix Schöbi, Grégory Bovey
8 August 2016
Rights of Custody - Art. 3
Appeal dismissed, return ordered
Article 16 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
One child wrongfully removed at age ten – National of Switzerland and Spain – Unmarried parents – Father national of Spain – Mother national of Switzerland – Joint custody according to Spanish law – Child lived in Spain until January/February 2016 – Application for return filed with the Central Authority of Spain on 17 February 2016 – Return refused – Main issues: parental custody – The father received parental joint custody when the child's place of residence was transferred to Spain, since in Spain both parents have parental custody by law.
The parents of the child, born in Switzerland in 2006, are not married. Shortly after the birth, the mother moved to Spain with the child, where they lived with the father in a shared household for several years. In 2011, the parents separated, and the child lived alternately with both parents. At the end of January / beginning of February 2016, the mother travelled with the child to Switzerland without the father’s knowledge. In Spain, proceedings regarding custody were pending.
By application of 23 March 2016, the father applied for the return of the child to Spain. After hearing the parents and the child, the Cantonal Court, by decision of 23 June 2016, ordered the return of the child.
On 11 July 2016, the mother appealed against this decision.
The appeal was dismissed. The father received parental custody when the child moved to Spain.
Who is granted parental custody is determined by private international law at the child's habitual place of residence immediately before the removal. Art. 9 para. 4 Código civil español (CCes) refers directly to the 1996 Hague Convention on the Protection of Children.
At the time of birth, the child was under the sole parental custody of the mother (under Swiss law). Due to the move to Spain, the custody situation changed. Under Spanish law, the father also had parental custody, regardless of whether the parents were married or not. In the explanatory report on the 1996 Hague Convention by Paul Lagarde it is explained in detail that Art. 16(3) and (4) are intended to mediate between the concepts of mutability and continuity of custody, depending on the form of the national rights of the state of departure and the state of immigration.
According to the above, parental custody has been extended to the father with the transfer of the child's place of residence to Spain (Art. 16(4) in conjunction with Art. 156 para. 1 CCes). After the separation, the child lived with both parents (shared care), so that it can still be assumed that custody was exercised jointly.
As a result, it must be noted that the father received parental joint custody when the child's place of residence was transferred to Spain and that he actually exercised the parental custody until the child moved to Switzerland.
Author: Francine Hungerbühler