Buscador de jurisprudencia

The parents were married and lived in Peru, and had two children born in 2005 and 2007, respectively. From 2008, the father received psychiatric treatment. After stopping his treatment in 2008, he began regularly and immoderately consuming alcohol and prescription medication. He became verbally and psychologically abusive towards the mother, and threatened to harm himself and the children. The mother separated from the father on 28 December 2012 and left the family home with the children, who continued to periodically see him.

The father did not return the children following a visit on 17 June 2013, and prevented the mother from seeing or speaking to them. On 1 July 2013, the Tenth Criminal Court of Lima, in a decision that was affirmed on appeal on 17 October 2013, ordered the father to stop preventing the mother from exercising her parental authority. In addition, the mother filed an application before the Tenth Family Court of Lima seeking custody of the children on 3 July 2017 and on 23 August 2013, she sought an interim order for temporary custody. During this period, the father's consumption of alcohol and prescription mediation increased, as well as his verbally and psychologically abusive behaviour. Among others, he repeatedly told the children of his plans to physically harm / kill their mother, and also threatened to kill himself and the children. On one occasion, he threw a book at the older child, which hit him in the face and "broke open his lip". 

On 29 October 2013, the children were returned to their mother. The Family Court issued a no innovar interim injunction on 21 November 2013, ordering the "preservation of the de facto situation" pending the final determination of custody. The mother and children stayed at a location unknown to the father, who attempted to contact them daily, to no avail. On 20 February 2014, without the father's knowledge, the mother took the children to the United States of America. 

After becoming aware of the children's removal, the father filed a criminal complaint against the mother in Peru. The complaint was initially dismissed, but on 9 January 2015 it was reinstated by an appellate court. In addition, an appellate court in Lima awarded the father temporary custody of the children on 1 October 2014. 

The removal was held to be wrongful and the Art. 13(1)(b) grave risk exception under the 1980 Hague Child Abduction Convention established. The Court was prepared to order the children's return, subject to the father's satisfaction of the following "pre-conditions" (i.e., undertakings): the vacating of the temporary custody order he obtained in October 2014; the dismissal or closing of all criminal complaints, investigations or charges against the mother; and the father's written agreement to a list of undertaking in the Order accompanying the judgment.  

Rights of Custody - Art. 3

The mother argued that the criminal and no innovar orders had extinguished the father's rights of parental authority, which the Court considered to be rights of custody under the Convention. The removal, therefore, could not be considered wrongful. Her argument was rejected on the basis that the Criminal Court merely ordered one parent to stop interfereing with the parental rights of the other, that the no innovar order only effectively granted her temporary custody and that it was not a final determination of parental authority. The father furthermore had the right to require the mother to secure his consent to their children's removal under Peruvian law, which was an additional basis for his custody rights under the Convention. 

The father was found to have been exercising his rights of custody at the time of the removal; the Art. 13(1)(a) exception did not apply. It had not been demonstrated that his actions amounted to "clear and unequivocal abandonment of the [children]". 

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

The Court noted that there was little evidence of physical abuse of the mother or children, but that the level of psychological abuse went "beyond what is typically seen in grave risk cases". It was signifcant that the father's verbal abuse of the mother had often been directed against the children, and that they had frequently been forced to verbally abuse and make sexually explicit insults against her.

The Court highlighted that the father had frequently threatened to kill the mother, noting that threats to kill a spouse, child or third parties are significant factors when making a grave risk determination. The risk, on the facts, was compounded by the credibility of the father's threats (including his ownership of a gun), his history of psychological problems and substance abuse, and the fact that he regularly told the children of his plans to kill their mother. The father had also threatened to kill the children "if things go wrong".

It was noted that both children had been diagnosed with separation anxiety disorder, and that one of them had and the other was likely to have post traumatic stress disorder and presistent depressive disorder. Taking all the facts together, the Court concluded that the magnitude of the psychological abuse in the case was unique, despite there being little to no evidence of physical abuse. 

Undertakings

It was found that, in light of the lack of sexual abuse, physical violence or a very extreme level of abuse, it was open to the Court to order the return of the children subject to undertakings. This would mitigate the grave risk of exposing the children to psychological harm upon return. The Court observed that, immediately before their removal, the children were in temporary custody of their mother at a location away from their father. A return to the status quo, therefore, would not necessarily place the children in an abusive environment. It was significant, in this respect, that the mother and her family had already demonstrated that they had the necessary social and financial support to care for the children away from their father. The Court added that if the mother were to refuse to return to Peru, the children could stay with her parents. 

The father had already provided assurances that he would not enforce the temporary custody order that had been granted in his favour by the Court of Appeals for Lima on 1 October 2014, and that he would refrain from participating in any criminal proceedings against the mother. It was noted, however, that these undertakings he proposed before the District Court could not be enforced in Peru.

The Court concluded instead that it would order return if the father were to arrange for the criminal charges or investigation against the mother dismissed or closed, and to have the temporary custody order in his favour vacated (in order for the underlying temporary custody order in favour of the mother to effectively be reinstated). Under such conditions, the Court would be prepared to order the children's return to Peru. If the father could not meet these "pre-conditions" (i.e., undertakings), however, the children's return would be refused in accordance with Art. 13(1)(b) of the Convention.