Federal Supreme Court
Superior Appellate Court
Christian Hermann, Nicolas von Werdt, Grégory Bovey
2 July 2019
Rights of Custody - Art. 3 | Grave Risk - Art. 13(1)(b)
Appeal allowed, return ordered
Decision of the Federal Tribunal 5A_439/2019 of 2 July 2019
Two children wrongfully removed at ages nine and four – Nationals of Macedonia – Married parents – Father national of Macedonia – Mother national of Macedonia – Joint parental custody – Children lived in Austria until 28 July 2018 – Application for return filed with the Central Authority of Austria 5 September 2018 – Return ordered – Main issues: Effective exercise of custody and grave risk – Article 3(1)(b) must be read in the light with the Convention's concern that the original condition should be established; there is a presumption that the holder of custody has fulfilled his obligations; the grounds for exclusion are to be interpreted narrowly and only real dangers are to be taken into account in the case of Article 13(1)(b).
The family (parents and 2 children) lived in Austria.
Because of unemployment and to solve financial problems, the father took a job with a company in Bern and moved to Switzerland in the spring of 2018. Since the family could not afford two apartments, the mother with the two children moved to the father's parents (still in Austria).
The mother, overwhelmed by the situation (police threat of deportation; financial problems; tense relationship between her and the father's parents), went to Florence on July 21, 2018 to seek the help of her family. She left the two children in the care of their grandparents. As she stayed away for several days, the father, who had returned to Austria, also went to Florence. Because he could not find the mother, he directly went to Switzerland with the children. On July 29, 2018, the mother returned to Austria. The children were no longer there.
On 5 September 2018, the mother filed an application for return, which was transmitted via the Austrian Central Authority to the Swiss Central Authority. Despite the intensive efforts of the police (undercover investigations during the day as well as at night), the children could not be found at the father's place of residence in Switzerland until spring 2019; they had not been registered and the older daughter had not been enrolled in school until then.
Finally, on 26 March 2019, the mother filed an application for return with the High Court of the Canton of Solothurn. In its decision of 14 May 2019, the High Court ordered the return of the two children to Austria.
On 27 May 2019, the father appealed against this decision, requesting that the application for return be set aside. The child's representative also filed an appeal against the decision of the High Court of the Canton of Solothurn, which was the subject of a parallel proceeding 5A_439/2019.
The Federal Tribunal dismissed the appeal and ordered specific enforcement measures
The question whether the mother actually exercised custody at the time of the removal of the children concerns Article 3(1)(b) and thus the illegality of the violation of custody.
Article 3(1)(b) has to be read in the light of the Convention's concern to establish the status quo ante; children who have been removed are not to be returned to a parent who only reconsiders his or her custody after the removal and who had no connection whatsoever with his or her children before. In this sense, the requirements on the actual exercise of custody are not too high; rather, there is a presumption that the holder of custody has actually exercised his rights and duties. For the assumption of the opposite to be true, it would have to be proven that the parent had not cared for the children at all and had definitely given up custody.
In the present case, the children lived in the mother's household in Austria, whereby the mother finally had to move to the grandparents. There is no evidence whatsoever that the mother, when she went to Florence to seek help from her brothers, would have wanted to give up custody. The children remained with their grandparents in the apartment in which they had been staying all together for several months. Further, she returned after a week and found herself in the situation that the children had been removed in the meantime. She immediately went to the police and a few days later also turned to the court. After only one month, she filed an application for return. Therefore, the mother had exercised custody within the meaning of Article 3(1)(b) any time and it must be stated that there has been a violation of custody rights within the meaning of Article 3(1)(b).
Author: Francine Hungerbühler
According to the constant jurisprudence of the Federal Tribunal, a serious risk of physical or psychological harm within the meaning of Article 13(1)(b) exists, for example, in the event of return to a war or epidemic zone, but also if there is serious reason to fear that the child will be maltreated or abused after return and it is not to be expected that the competent authorities of the State of origin will successfully intervene against the danger. No serious risk of mental harm is posed by initial language and reintegration difficulties such as those which more or less inevitably arise for children above a certain age. Secondly, the return procedure does not deal with questions of substantive law as they are decisive for the allocation of custody, namely with which parent or in which country the child would be better cared for. With regard to the interaction between principle and exception, there is a general consensus in case law that the grounds for exclusion must be interpreted narrowly and that only real dangers must be taken into account in the case of Article 13(1)(b).
In the present case, it was not possible to see to what extent the financial situation would be considerably better if the children continued to live with the father. Nor could any risks be identified with regard to the future care situation in Austria. Further, the children were at an age at which they could quickly settle back in Austria. They would also be educated in the same language and it is not apparent to what extent they would have a future there as a whole, which could entail serious dangers in the sense of the case law on Article 13(1)(b).