CASO

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Nombre del caso

Cass Civ 1ère 8 Juillet 2010, N° de pourvoi 09-66406

Referencia INCADAT

HC/E/FR 1073

Tribunal

País

Francia

Instancia

última instancia

Estados involucrados

Estado requirente

Reino Unido

Estado requerido

Francia

Fallo

Fecha

8 July 2010

Estado

Definitiva

Fundamentos

Grave riesgo - art. 13(1)(b) | Objeciones del niño a la restitución - art. 13(2) | Cuestiones procesales

Fallo

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Artículo(s) del Convenio considerados

13(1)(b) 13(2) 17 20

Artículo(s) del Convenio invocados en la decisión

13(1)(b) 13(2) 20

Otras disposiciones
Arts. 11(2), 11(4) del Reglamento Bruselas II bis Reglamento (CE) nº 2201/2003 del Consejo; Code Civil (France); Convención de las Naciones Unidas sobre los Derechos del Niño
Jurisprudencia | Casos referidos

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SUMARIO

Sumario disponible en EN | FR

Facts

The two boys were born in 1995 and 1997. Pursuant to the parents' divorce in 2001, the children's residence was set with their mother in England. When exercising a right of access and accommodation at the father's domicile in France, the father did not return the children as scheduled on 3 January 2009, in reliance on a judgment of the Court at first instance of La Roche sur Yon dated 2 January awarding custody to him on a provisional basis.

On 9 January 2009, the High Court of England held the children's retention to be wrongful and made them wards of court. The mother applied for their return on the basis of the 1980 Hague Child Abduction Convention. On 2 February 2009, the Poitiers Court at first instance ordered the children's return. The ruling was upheld by the Poitiers Court of Appeal on 16 April 2009. The father appealed to the Supreme Court.

Ruling

Appeal dismissed; the Court of Appeal had duly applied the provisions of the Brussels II a Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003).

Grounds

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

The father stated that the elder was exposed to a grave risk of harm or an intolerable situation, having stated his intention to cause himself bodily harm or to assault his mother in the event of return to her. He added that the measures taken in England were inadequate as mere legal measures unsuited to preventing the physical risks observed.

Accordingly, in his view, the appeal judgment had breached Articles 13(2) and 13(1)(b) of the Hague Convention, and 11(2) and 11(4) of the Brussels II a Regulation. The Supreme Court observed that the Court of Appeal had duly exercised its discretion in observing that adequate measures had been taken by the High Court to protect the children and to prevent any physical danger.

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

The father also complained that the appeal judgment had ordered the children's return whereas the children had expressed their objections to a return in March 2009 and had displayed maturity; accordingly, in his view, the appeal judgment had breached Article 13(2) of the Hague Convention and Article 11(2) of the Brussels II a Regulation.

The Supreme Court ruled that the Court of Appeal had determined in its discretion that in the standing of the conflict of loyalties facing the children and the identical statements they had already made to the police at the time of an earlier retention in 2008, the children's objections alone could not prevent their return to the State of their habitual residence.

Procedural Matters

The father claimed initially that the Court of Appeal ought not to have ruled the application for the children's return to be admissible as the French court had found that the children were in danger and had taken a protective measure in their best interest that ought to have continued to apply as long as the danger had not been removed.

The Court of Appeal accordingly, in his view, ought not to have applied Article 20 of the Brussels II a Regulation and had also breached the provisions of the French Civil Code, taken together with Articles 3 and 19 of the United Nations Convention on the Rights of the Child of 20 November 1989 and Article 17 of the Hague Convention.

The Supreme Court dismissed that view. It considered that the Court of Appeal had grounds to note that while under Article 20 of the Brussels II a Regulation, a court trying matters relating to children might in emergencies take the temporary or protective measures required in relation to children located in France at the time, the provisional placement ceased to be effective once the High Court in London, which had jurisdiction to rule upon the exercise of parental authority over the children, had taken the appropriate action by making the children wards of court by a judgment dated 9 January 2009.

Author of the summary: Aude Fiorini