HC/E/MX 1547
MEXICO
Primera Sala de la Suprema Corte de Justicia de la Nación
Superior Appellate Court
Arturo Zaldívar Lelo de Larrea; José Ramón Cossió Díaz; Jorge Mario Pardo Rebolledo; Olga Sánchez Cordero de García Villegas; and Alfredo Gutiérrez Ortiz Mena
UNITED STATES - FEDERAL JURISDICTION
MEXICO
14 January 2015
Final
Settlement of the Child - Art. 12(2) | Procedural Matters | Interpretation of the Convention
Appeal allowed, return ordered
Articles 1 and 4 of the Political Constitution of the United Mexican States; Article 9.1 of the Convention on the Rights of the Child.
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Wrongful removal of 5-year-old child - American – unmarried parents, they split up - the girl lived in California with her mother until she was removed by her father to Mexico – the return request was filed before the Central Authority in the United States of America – appeal allowed, return ordered – main issues: settlement of the child; procedural matters; interpretation of the Convention – the settlement of the child exception was not granted since the mother had filed for return within a year from the wrongful conduct – the Supreme Court held that Mexico lacks a special proceeding for child abduction cases – the HCCH 1980 Child Abduction Convention safeguards the best interests of the child and is compatible with the Political Constitution of the United Mexican States and the different international treaties signed and ratified by Mexico.
The girl was born in February 2003 in the city of Bellflower, California. Upon her birth, the parents decided to split up. They were not married. After the separation, the girl lived with her mother in Long Beach, California, whilst the father moved to Miami, where he stayed for approximately two years.
Then, the father returned to California and agreed with the mother that he would spend time with the child until 17 September 2008. On that date, the father told the mother that he and the child were in Mexico and that they were not going to go back to the United States of America.
Thus, the mother reported the international abduction of her child with the Los Angeles County District Attorney’s Office. Subsequently, on 17 October 2008, the mother filed a return request before the Central Authority of the United States of America, which referred such request to the Mexican Secretariat of Foreign Affairs.
On 16 April 2012, the First Instance Court in Mexico rejected the return request on the basis of Arts. 12 and 13 of the 1980 Child Abduction Convention. Different appeals were filed but, eventually, return was ordered within the petition for constitutional relief filed by the mother.
The father appealed that constitutional relief decision before the Mexican Supreme Court.
However, whilst that appeal was pending, on 29 September 2014, a hearing was held and the father voluntarily agreed to return the child to the United States of America. Notwithstanding the foregoing, the Supreme Court rendered a decision, given that the best interests of the child were at stake.
Appeal allowed, return ordered. Return was ordered since the request was filed within one year from the wrongful act. None of the exceptions in the Convention were established.
The father of the girl submitted that Art. 12 was contrary to the best interests of the child, enshrined in the Convention of the Rights of the Child and in the Political Constitution of the United Mexican States (Arts. 1 and 4, which make reference to the best interests of the child).
The Supreme Court noted that the exception in Art. 12 of the 1980 Child Abduction Convention has a time requirement. Accordingly, in the cases in which the proceedings before a judicial or administrative authority were initiated after one year counting from the wrongful conduct, the relevant authority may opt not to return the child provided he has settled in the new environment.
The Supreme Court held that the passing of one year was not sufficient by itself. The exception also requires that the abducting or retaining parent shows that the child has settled into the new environment.
It also held that Art. 12 does not violate the best interests of the child. To the contrary, said principle is enshrined in that provision by considering the possibility not to return the child when a year elapsed between the abduction or retention and the filing of the return request and the abducting or retaining parent shows that the child is settled in the new environment.
Lastly, the Supreme Court established that only one month had elapsed between the child abduction and the filing of the return request by the mother. Thus, it found that the exception in Art. 12 of the Convention did not apply.
The Supreme Court noted that the time factor is of prime importance under the Convention. Thus, State authorities must act as expeditiously as possible.
In this regard, it held that the 1980 Child Abduction Convention is aimed at avoiding unnecessary delays, which are totally detrimental to the child concerned, and thus return must be immediate. Accordingly, it found that case law and scholarly opinion are concurring in that when the cause of return being delayed for over a year is delays in the return proceedings, authorities from the receiving State are not allowed to find that the child has settled therein and thus they cannot refuse return on that basis.
As for Mexico, the Supreme Court stated that there are not specific urgent proceedings for child abduction cases.
With regard to the father’s allegation that the 1980 Child Abduction Convention, particularly Art. 12, violates the Convention on the Rights of the Child and the Political Constitution of the United Mexican States, the Supreme Court highlighted that the best interests of the child principle informs the entire 1980 Child Abduction Convention, and that said principle is of prime importance, consisting in the child’s right not to be wrongfully removed or retained to the detriment of his physical and/or psychological integrity.
Moreover, it held that the Convention, pursuant to the best interests of the child, also allows for the possibility to deviate from the principle of prompt return when any of the exceptions listed in the Convention is fully established.
The Supreme Court confirmed that the best interests of the child must gravitate around his immediate return, except when any of the exceptions in the Convention is fully established; in addition, it held that the exceptions must be interpreted strictly in order to apply the Convention correctly, and that the burden of proving any exception lies on the party opposing return.
It added that in contrast to the provisions in Art. 12 of the Convention, the rest of the exceptions are not subject to any time requirement. Therefore, they can be raised at any time in the return proceedings.
Lastly, the Supreme Court found that there is a presumption that the best interests of the child are better safeguarded by his immediate return and that is why the best interests of the child enshrined in the 1980 Child Abduction Convention is compatible with that in the Political Constitution of the United Mexican States and the different international treaties signed and ratified by Mexico.
Author: Sofía Ansalone (INCADAT LATAM team, Director Nieve Rubaja, Assistant Emilia Gortari)