Karlsruhe Higher Regional Court
Tribunal de Apelaciones
8 January 2014
Derechos de custodia - art. 3 | Consentimiento - art. 13(1)(a) | Grave riesgo - art. 13(1)(b)
Apelación concedida, restitución denegada
The Applicant and the Respondent were unmarried and lived together in Hungary with their son, born in 2007. The parents had joint custody under Hungarian law. In March 2013, the mother moved to Germany with the son. Due to custody proceedings pending in Hungary, the district office for guardianship matters at the district administration office determined the son’s place of residence abroad to be at his mother’s place of residence in Germany. The father’s appeal against this decision was pending. In September 2014, the father applied to have the son returned to Hungary. A court decision made in October 2014 ruled to approve the father’s application for the return of his son. It was against this decision that the mother’s complaint appeal of October 2014 was directed.
The complaint appeal was approved and the father’s application for a return was refused. The court ruled that the child’s wellbeing would be endangered were he to be returned.
As provided for by Hungarian law, the parents had joint custody of their son. His place of habitual residence was in Hungary, where he had lived since birth. The father had been exercising his rights of custody. The court emphasised that no unnecessarily high demands could be made of the extent to which he was exercising his right to custody.
There was no evidence of the (implied) consent of the father to the son being brought to Germany. The fact that the father may have said that the mother could go wherever she wanted to cannot be understood to mean that he gave his consent to her moving to another country with the child. The father refused to sign anything which confirmed this officially. The fact that the competent authority had ruled the place of residence as being abroad with the mother was ruled as not standing in the way of this, as this was ruled only after the child had been brought to Germany.
The court ruled that there was a severe risk of physical or mental harm to the son if he was returned to Hungary. It was stated that the prospect of returning was causing his mental state to deteriorate: that he was having difficulties at school, was wetting the bed and bursting into tears unexpectedly. It was mentioned that he had lost trust in his father due to the way in which he had gone against the agreements the parents had made with each other, and that his father’s threats had made him scared of losing his mother. Furthermore, the competent authority determined the child’s place of residence as being with his mother in Germany.