CASO

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Nombre del caso

Cass Civ 1ère, 4 mai 2017, No de pourvoi 17-11031

Referencia INCADAT

HC/E/FR 1346

Tribunal

País

Francia

Nombre

Première Chambre civile de la Cour de Cassation

Instancia

última instancia

Juez(ces)

Mme Batut (président)

Estados involucrados

Estado requirente

Israel

Estado requerido

Francia

Fallo

Fecha

4 May 2017

Estado

Definitiva

Fundamentos

Derechos de custodia - art. 3 | Grave riesgo - art. 13(1)(b) | Derechos humanos - art. 20

Fallo

Apelación desestimada, restitución ordenada

Artículo(s) del Convenio considerados

3 5 13(1)(b)

Artículo(s) del Convenio invocados en la decisión

3 5

Otras disposiciones

Convención de las Naciones Unidas sobre los derechos del niño de 1989

Jurisprudencia | Casos referidos

-

SINOPSIS

Sinopsis disponible en EN | FR | ES

Presunto traslado ilícito de una niña de 6 años – Padres divorciados – Madre de nacionalidad francesa e israelí – Madre con derechos de custodia, padre con amplios derechos de visita y estancias – La niña vivió en Israel hasta el verano de 2015 – Procedimiento de restitución iniciado en marzo de 2016 – Se ordenó la restitución – Cuestiones principales: derechos de custodia, excepción de grave riesgo del artículo 13(1)(b), derechos humanos – Un padre es titular de “derechos de custodia” según lo dispuesto en el Convenio de La Haya de 1980 sobre Sustracción de Menores si tiene amplios derechos de visita y estancias y el derecho a prestar consentimiento sobre los cambios de residencia del niño – La excepción de grave riesgo del artículo 13(1)(b) no es aplicable si el niño tiene acceso, en el Estado de residencia habitual, a un tratamiento adecuado para su enfermedad.

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The case concerned a girl born in Israel in 2009, aged 6 at the time of the alleged wrongful removal. In January 2014, a rabbinical court pronounced the parents divorced, and a family court awarded the mother custody of the child while granting the father extensive access rights, namely the right to have the child visit and stay with him (“un large droit de visite et d’hébergement”). Under Israeli law, the father also had the right to be informed of and consent to any change of the child’s residence.

In the summer of 2015, the mother took the child with her to France. The father began return proceedings in France in March 2016.

Both the father and the child were HIV positive, and the mother argued that she also suffered from poor health, although the precise nature of her afflictions is not described in the judgment.

The mother appealed the decision from the cour d’appel (Court of Appeal) confirming the first instance return order. She argued that the Court had failed to establish that the father had custody rights within the meaning of the 1980 Hague Child Abduction Convention (Hague Convention), in determining that she had wrongfully removed the child.

She further alleged that the financial implications of the child’s medical treatment at various stages of her illness in Israel should have been considered by the Court, before it concluded that the requirements for the Article 13(1)(b) grave risk exception to ordering return had not been met. Noting that disproportionate harm to the private and family life of the child may constitute a grave risk of exposing the child to physical or psychological harm, the mother furthermore argued that the courts should have considered the risk of inflicting such harm by separating the child from her mother, with whom she had lived all her life. She added that the state of her health and personal finances prevented her from visiting her daughter in Israel.

In addition, the mother asserted that the obligation to consider the best interests of the child under Article 3 of the 1989 UN Convention on the Rights of the Child (UN CRC) had not been satisfied. She claimed the Court of Appeal wrongly omitted to consider whether it might have been in the best interests of the child to remain in France with her mother.

Ruling

The appeal was dismissed. The Court of Appeal had correctly determined that the father had custody rights within the meaning of the Hague Convention, that the child had been wrongfully removed, and that the requirements for the grave risk exception to return had not been met.

Grounds

Rights of Custody - Art. 3

The Court concluded that none of the mother’s arguments were founded.

It noted that “rights of custody” for the purposes of applying the Hague Convention include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence, as specified in Article 5. The father had been granted extensive access rights, which he had been exercising before the removal. Moreover, the law of Israel—the State in which the child was habitually resident immediately before the removal—attributed to him the right to consent to any change of the child’s residence. It concluded that the Court of Appeal had correctly determined that the father had custody rights within the meaning of the Hague Convention, and that the mother had wrongfully removed the child, as she had taken her from Israel without the requisite consent of the father. Therefore, all the conditions for a finding of wrongful removal under Article 3 of the Hague Convention had been met.

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

The Court of Appeal had established that the quality of the healthcare system in Israel was very satisfactory, that it provided persons with AIDS with free treatment, and that the antiviral HIV treatment that the child had been receiving in Israel was the same as that which her doctor prescribed upon her arrival in France.

Moreover, the Court held that, notwithstanding his HIV positive status, the father had no physical or psychological impairments that could have posed a danger to the child if she were to live with him. The outcomes of all his drug tests were negative; excepting cannabis, for which he had a medical prescription. It furthermore considered that, as an Israeli national, there was nothing preventing the mother from returning to Israel to live with her child there. Therefore, there were no grounds for return of the child to be refused under Article 13(1)(b) of the Hague Convention.

Human Rights - Art. 20

The Court explained that in accordance with Article 3 of the UN CRC, the best interests of the child should be a paramount consideration in assessing whether returning the child would risk exposing her to physical or psychological harm within the meaning of Article 13(1)(b) of the Hague Convention. It considered that the Court of Appeal had taken into consideration the allegedly omitted assessments, but that it was under no obligation to entertain the intricate details of the parties’ submissions. The best interests of the child had been a primary consideration in reaching the decision that that the “grave risk” exception did not apply, on the facts of the case. The decision was therefore fully justified.