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This case concerned a child born on 24 March 2018 in Spain. The father, a Spanish national, and the mother, a French national, were habitually residing in Spain. On 12 August 2020, the mother brought the child to France.

The father initiated return proceedings under the 1980 Convention. On 5 November 2020, the public prosecutor (procureur de la République) referred the case to the District Family Court (juge aux affaires familiales du tribunal judiciaire) of Nîmes to obtain the return of the child to Spain.

A Spanish Court issued a provisional decision, on 16 September 2021, which provisionally entrusted primary custody of the child to the mother, due to the child’s young age.

The District Family Court of Nîmes refused to order the return of the child on the basis of Article 13(1)(b) of the 1980 Convention. This decision was confirmed by the Court of Appeal (cour d’appel) of Nîmes on 6 April 2022. The father filed an appeal before the Supreme Court (Cour de Cassation).

Appeal granted. The Supreme Court overturned the Court of Appeal’s decision and remitted the case to a lower court.

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

In his appeal to the Supreme Court, the father claimed that the findings of the Court of Appeal that the child had formed new roots in France, having lived there for over 2 years, were the result of the mother’s unilateral actions, which were declared wrongful by the Court of Appeal. He therefore alleged that the decision was not grounded in any established grave risk relating to the living conditions of the child upon return. He further argued that the Court of Appeal’s finding of grave risk could not be adequately assessed only by taking into account a provisional court decision conferring primary custody to the mother, nor would such a decision be sufficient in and of itself to establish that the child would face a grave risk in the event of a return to Spain.

The Supreme Court took note of the Court of Appeal’s finding that the mother was an anchor for the child, making a prolonged separation between them harmful and that a Spanish Court had provisionally conferred primary custody to the mother, concluding that the child’s best interests would be to stay in France with her mother. However, the Supreme Court found that the Court of Appeal did not adequately assess the exception of grave risk raised by the mother . The Supreme Court stressed that the exception under Article 13(1)(b) must be assessed in light of the child’s expected living conditions upon their return and whether those would establish a grave risk of physical or psychological harm or an otherwise intolerable situation. On this basis, the Supreme Court overturned the Court of Appeal’s decision, as it  did not provide a sufficient legal basis for its finding that a return to Spain would indeed establish a grave risk for the child.

Author: Camille Druilhet