Tribunal de Apelaciones
6 July 2016
Derechos de custodia - art. 3 | Grave riesgo - art. 13(1)(b) | Convenio Europeo de Derechos Humanos (CEDH)
Apelación desestimada, restitución ordenada
The Applicant and the Respondent were married, lived in Bosnia and had a son who was born on 8 August 2012. They had joint custody of the child. At around New Year 2015/16, the Respondent mother left Bosnia with the child and moved to Germany (according to the Respondent, she did so on 21 December 2015 and according to the Applicant, the move took place on 7 January 2016). In March 2016, a Bosnian court transferred sole custody rights to the Applicant father. Later in March 2016, the Applicant applied for the child to be returned to Bosnia. The application was approved. It was against this order that the Respondent submitted a complaint appeal in April 2016.
The mother’s complaint appeal was rejected and the father’s application for the return of the child was approved. It was not possible to establish any reason why the child’s wellbeing would be endangered in the event that he were returned.
The parents had joint custody of their son under Bosnian law. His habitual residence was in Bosnia and Herzegovina. Bosnian law states that if parents are separated, the parent with whom the child lives exercises parental custody alone; however, the decision as to which parent the child should live with must be taken by a court . At the time in question, there was no court decision on this issue. A recommendation was made by a mediator, but this does not constitute a decision on custody rights.
The court did not agree with the complainant’s arguments; it held that no severe risk of physical or mental harm would be associated with the son being returned. Separation from the mother and the change of surroundings are typical consequences in return cases. The claim of the complainant that she would face criminal prosecution and violence from the Applicant and his family does not constitute a ground for refusing to order the return of the child. The court was not of the view that the son had been proven to be at risk of being beaten by his father. It argued that among other reasons, this was indicated by the fact that the Bosnian court had given the father custody rights. The court also advised that the exceptional provision was to be interpreted restrictively.
No substantial hindrance to the child’s wellbeing was presented to the court. Separation from the mother and the change of surroundings are not sufficient grounds on their own. Furthermore, the court ruled that the mother could accompany the child if she wished to do so. Eventual criminal prosecution is not a reason to refuse the return. Furthermore, the court noted the Neulinger case, where the application for the child's return was submitted more than a year after the child was removed, and said that it was different from the present case, where the abduction took place six months ago. Therefore, the social integration of the child was not critical in the present case unless it would have constituted a grave risk of psychological harm. This was denied by the court.