Tribunal de Apelaciones
28 June 2012
Derechos de custodia - art. 3 | Grave riesgo - art. 13(1)(b) | Objeciones del niño a la restitución - art. 13(2)
Apelación concedida, restitución denegada
The Applicant father and the Respondent mother were married and lived together in Germany with their daughter, born on 13 May 2001. The parents had joint custody of the child. The parents’ divorce became final in August 2007 and the mother stayed with the daughter in Germany. In December 2007, the parents reconciled and the mother moved to be with the father in Poland. On 11 March 2008, the couple had a further child, a son. The parents also had joint custody of this child. In June 2011, the mother moved to Germany with their children without the consent of the father. In February 2012, the father applied for the children to be returned to Poland; this was then ordered by the court. The mother submitted a complaint appeal against this decision in April 2012
The complaint appeal was approved and the Applicant’s application for the children to be returned was rejected. It was ruled that there was a grave risk of physical or mental harm to both of the children, meaning that the exception set out in Article 13(1)(b) of the Hague Child Abduction Convention applied.
The daughter was born in Germany when her parents were still married, as a result of which the parents had joint custody. The son was born in Poland after the parents had divorced, and the father was entered as such on his birth certificate, meaning that it is also to be assumed that the parents had joint custody of their son. The father did exercise his right to joint custody – at the end this occurred as access visits. The father’s custody rights were violated when the children were taken abroad.
The court agreed with the Respondent’s line of argument. The daughter displayed serious and acute suicidal tendencies when faced with the prospect of being returned to Poland. The court advised that the exceptional provision was to be interpreted restrictively.
Regarding the son, the grave risk was assumed due to the fact, that the return of his sister was precluded and he would have to be returned on his own and be separated from the two people with whom he has lived together for his entire life.
Furthermore, the Court agreed that the exception to return under Article 13(2) of the 1980 Hague Convention (the child’s objections) was met in this case.