CASE

No full text available

Case Name

Ø.L.K. 1. Februar 1999, 1. afd., B-0149-99

INCADAT reference

HC/E/DK 407

Court

Country

DENMARK

Name

Østre Landsret: High Court, Eastern Division

Level

Appellate Court

States involved

Requesting State

NORWAY

Requested State

DENMARK

Decision

Date

1 February 1999

Status

Final

Grounds

Rights of Custody - Art. 3

Order

Appeal dismissed, return ordered

HC article(s) Considered

3

HC article(s) Relied Upon

-

Other provisions
§10 of the Danish Act on International Enforcement of decisions concerning Custody of Children and Restoration of Custody of Children
Authorities | Cases referred to

-

INCADAT comment

Article 12 Return Mechanism

Rights of Custody
Who may Hold Rights of Custody for Convention Purposes?

SUMMARY

Summary available in EN | FR | ES

Facts

The child, a girl, was 8 at the time of the alleged wrongful removal. She had lived in Norway all of her life. The mother was single and had sole custody of the child.

On 22 August 1998 the girl was forcibly removed from the mother's care and placed in a children's home by the Norwegian social authorities. On 25 August this decision was judicially approved. On 8 September the mother removed her daughter from the children's home and took her to Denmark.

On 13 October a Norwegian court decided that the child should be under the care of the social authorities, although the mother would be granted access. On 25 November the Central Authority of Norway made an application for the return of the child.

On 7 January 1999 a Danish county court ruled that the removal was wrongful, since it had breached the social authorities' rights of custody. The court did not find that there were any reasons to refuse the return of the child. It further held that the fact the mother had filed an appeal against the Norwegian decision should not result in the postponement of the return order.

The mother appealed the return order.

Ruling

Appeal dismissed and return ordered; the Norwegian Social Authorities had rights amounting to custody rights that had been breached by the mother's removal of the child.

Grounds

Rights of Custody - Art. 3

The actions of the Norwegian social authorities, which had been judicially approved, were such to give them rights of custody for the purposes of the Convention. The mother's action in removing the child breached those rights and was therefore wrongful.

INCADAT comment

The Appellate Court noted that the return application could have been dealt with under the Danish Act concerning returns to another Nordic country with reference to certain decisions about care and treatment. This provides that police authorities in Finland, Iceland, Norway, Sweden and Denmark must return a child who is brought to one of these States if a decision about the care and treatment of the child has been made in one of the other Nordic countries. "Care and treatment" often means that the child has been placed in a children´s home. Such cases do not involve either central authorities or the courts.

Who may Hold Rights of Custody for Convention Purposes?

Preparation of INCADAT commentary in progress.