Tribunal de Apelaciones
5 July 2017
Derechos de custodia - art. 3 | Grave riesgo - art. 13(1)(b)
Apelación desestimada, restitución ordenada
The Applicant father and the Respondent mother had a daughter together, born on 22 February 2014. They lived together with the child and an older daughter of the mother in France. In June 2018 the mother travelled to Germany and gave birth to another child, whose biological father is the Applicant. The mother returned to France and directly after the parties separated and the mother moved to Germany with her older daughter and the newborn. The child stayed with the Applicant in France. Whilst proceedings were pending on the establishment of the exercising of joint custody rights in France, the mother travelled to France in December 2015 and took the child with her to Germany. During the proceedings, it was established that the parents had joint custody, and the child’s habitual residence was determined as being with her father. In December 2016, the father applied to have the child returned to France. In May 2017, a court ordered that the child be returned. It was against this court order that the mother submitted a complaint appeal.
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 to suggest that the child’s wellbeing would be endangered in the event that she were returned.
The parents have joint custody of their daughter under French law. Her place of habitual residence was in France, where she had lived since birth. The fact that she was born in Germany does not preclude this; nor does the fact that the mother and daughter were still registered as being resident in Germany. The father really was exercising his rights of custody.
The court ruled that there was no severe risk of physical or mental harm should the child be returned to France. The stress caused by separation from the person to whom the child had formed one of her closest relationships [her mother] was a necessary consequence of the return, which would be avoided by the mother accompanying the child. As a rule, the abducting parent must accept to return together with the child and thereby face personal disadvantages. This was considered true by the court even if the refusal to accompany the child is due to the fear of criminal proceedings resulting from the abduction.
The Respondent’s claim, her return with the child to France would be unreasonable for her other children, was dismissed by the court. The court pointed out that it would not be unreasonable to take her two-year-old child with her and to take her older child with her during the school holidays or leave them with their father or grandparents. The return order would not imply a decision that the Respondent would be required to live in France permanently. Furthermore, even if the child would not be accompanied by his mother in the return, the Applicant would be able to re-establish a positive relationship with the child in a short period of time, with the result of mitigating the emotional strain for the child resulting from the disruption of the relationship with her mother.