CASE

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Case Name

Decision of the Swiss Federal Supreme Court 5A_605/2019 of the 4th of September 2019

INCADAT reference

HC/E/CH 1554

Court

Country

SWITZERLAND

Name

Tribunal fédéral (Swiss Federal Supreme Court)

Level

Superior Appellate Court

Judge(s)

Christian Herrmann, Luca Marazzi, Nicolas von Werdt

States involved

Requesting State

THAILAND

Requested State

SWITZERLAND

Decision

Date

4 September 2019

Status

Final

Grounds

Grave Risk - Art. 13(1)(b) | Objections of the Child to a Return - Art. 13(2)

Order

Appeal dismissed, return ordered

HC article(s) Considered

13(1)(b) 13(2)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to

-

Published in

-

SUMMARY

Summary available in EN | FR | ES

Facts

A 6-year-old girl was taken by her mother from Thailand to Switzerland in spring 2018. Before moving to Thailand in 2013, the parents, who were married, lived in France and had joint parental authority. They separated in 2014. An application for return was lodged with the Vaud Cantonal Court (first instance for the canton of Vaud in cases of international child abduction) on 23 August 2018. On 31 January 2019 the court refused to return the child. The father appealed to the Federal Court, which, in a decision dated 24 April 2019 (5A_162/2019), partially admitted the appeal, set aside the cantonal judgment and referred the case back to the Vaud Cantonal Court for investigation and a new decision. By decision of 28 June 2019, the Vaud Cantonal Court ordered the child's return. The mother appealed against this decision to the Federal Court on 2 August 2019. The decision of 4 September 2019, in which the Federal Court dismissed her appeal, is the subject of this summary.

Ruling

The Federal Court dismissed the appeal on the grounds that the exceptions in art. 13 CLaH 80 did not apply.

Grounds

Grave Risk - Art. 13(1)(b)

The mother alleges that she would have difficulty obtaining a visa for Thailand, which is insufficient to be taken into consideration. The same applies to the allegation that the mother will not be able to support her daughter in Thailand because she will not be able to work there. In fact, the father will pay a maintenance contribution for his daughter and the mother could occupy one of the two properties she owns in Thailand, or even rent both and live elsewhere. Moreover, the economic criterion was not decisive.

The applicant's fears as to safety were also insufficient, since she was not required to settle close to the home of her daughter's father and the Thai authorities had the power and duty to guarantee the child's safety in Thailand.

Objections of the Child to a Return - Art. 13(2)

Given the child's age (7 years old) and the fact that she would not have reached sufficient maturity to be able to distinguish between living in Thailand and living with or near her father (as she categorically refuses return), her opinion was not considered relevant.

Author: Audrey Canova