15 February 1996
Grave riesgo - art. 13(1)(b)
Apelación desestimada, restitución ordenada
The parents had originally lived in Canada with their son, born March 1992. In February 1995, the Respondent moved to Germany with the child. The child’s father applied for his son to be returned; this was then ordered by the court. The immediate complaint appeal made by the child’s mother against this court order was rejected. It was against this rejection that the child’s mother made an application for an interlocutory order to be issued.
The child’s mother’s application for an interlocutory order was rejected. The court ruled that it was not able to find any evidence that there would be grave consequences for the child if the order of the Higher Regional Court were enforced.
The court did not make an interlocutory order as the consequences would be less severe if no such order was made and a subsequent complaint to the Federal Constitutional Court was found to be justified, than if the interlocutory order was issued and then a different conclusion was reached in the main hearing. A suspension of the return order would mean that the father would be deprived of his custody rights until a decision was made on the complaint to the Federal Constitutional Court, and the child would continue to form ever more deep-rooted attachments in Germany. This would lead to further delays in the implementation of the provisions of the Hague Child Abduction Convention. Ultimately, it should be for the court with international competence to decide on custody. The court also advised that the exception provision in Art. 13(1)(b) of the Hague Child Abduction Convention should be interpreted restrictively.