Federal Supreme Court
Superior Appellate Court
Nicolas von Werdt, Elisabeth Escher, Grégory Bovey
27 September 2017
Procedural Matters | Objections of the Child to a Return - Art. 13(2)
Appeal dismissed, return refused
Article 13(1) Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults of 21 December 2007
Decisions 5A_513/2016 of 12 August 2016 and 5A_149/2017 of 19 April 2017
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: substantially changed circumstances; objection of the child to a return – If the circumstances have changed substantially, it must be possible, to reassess a return decision; the child's opposition within the meaning of Article 13(2) must be expressed with a certain emphasis and with comprehensible reasons.
Shortly after the birth of the child in Switzerland, the unmarried parents moved to Spain, where they lived in a shared household for several years. In 2011, the parents separated and had alternating custody. At the end of January / beginning of February 2016, the mother moved with the child to Switzerland without the father's knowledge. In pending custody proceedings in Spain, the father was granted full custody.
In an application dated 23 March 2016, the father applied to the Cantonal Court of Lucerne for the return of the child to Spain. The Cantonal Court, in its decision of 23 June 2016, ordered the return. The appeal filed by the mother was dismissed by the Federal Supreme Court in its decision of 12 August 2016.
After the ordered handover on 20 August 2016 had failed, the father applied to the Cantonal Court to execute the return immediately. On 5 September 2016, the mother applied for the application to be dismissed because of the opposition of the child. On 21 September 2016, the Cantonal Court ordered an expert opinion on the will, the formation of the will over time and the maturity of the child, which was issued on 5 December 2016. In addition, the Cantonal Court, by decree of 16 December 2016, established accompanied visitation contacts between father and son. On 6 February 2017 the Cantonal Court rejected the father's application for return. Following an appeal by the father, the Federal Supreme Court allowed the appeal and referred the case back to the Cantonal Court.
In its decision of 18 August 2017, the Cantonal Court again approved the mother's petition for modification, rejecting the father's petition for return. On 1 September 2017, the father again filed a complaint against this amending decision.
The Federal Supreme Court dismissed the applicant's appeal and confirmed the decision of the Cantonal Court (non-return of the child).
It was no longer controversial that the mother abducted the child from Spain and was still illegally retaining them in Switzerland. Art. 13(1) Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults of 21 December 2007 requires for the amendment of the return decision that the circumstances have changed substantially. Similar to child protection measures, it must also be possible, within narrow limits, to reassess the return decision, whereby such a situation generally only arises if a certain period of time has elapsed between the decision and its execution.
From a legal point of view, the question is whether the child opposed to a return within the meaning of Article 13(2). The Hague Convention does not stipulate a specific age from which a child's opposition can be taken into account. According to the Federal Supreme Court case-law, the required maturity in the sense of Article 13(2) is reached when the child is capable of autonomous decision-making, i.e. when it is able to recognise its own situation and form its own opinion despite external influences and if it is able to understand the meaning and the problems of the forthcoming return decision; this means in particular that it must be able to recognise that it is not a question of custody regulation, but for the time being only a question of restoring the status quo ante under residence law, and that the material questions will then be decided in the state of origin. Based on the relevant literature on child psychology, Federal Supreme Court rulings assume that the aforementioned prerequisites are generally met from about eleven to twelve years. However, even the will of a somewhat younger child that has been expressed in the records cannot simply be ignored. Of course, any formation of the will is not completely detached from external influence, and certainly not in the case of smaller children. It must not, however, be based on manipulation or indoctrination. The child's opposition within the meaning of Article 13(2) must be expressed with a certain emphasis and with comprehensible reasons.
Author: Francine Hungerbühler