30 April 2010
Grave riesgo - art. 13(1)(b)
One child wrongfully retained at age 4 – National of Germany - Married parents – Father national of Germany – Mother national of Georgia – Both parents have joint custody under Section 1626 of the German Civil Code – Child lived in Germany until August 2009 – Application for return was filed at the Central Authority of Georgia on 29 December 2009 – Return refused – Main issue: Article 13(1)(b): The court considered that in case of return the child would not live in a psychologically stable environment – The applicant did not appeal the decision and it became final.
The child was born in 2005 in Germany. Her mother is a citizen of Georgia and her father is a citizen of Germany. The couple married in 2003. According to Section 1626 of the German Civil Code, both parents had joint custody. The family lived together in their flat in Berlin and both parents exercised joint parental custody.
The parents agreed that in August 2009, the mother would travel with the child to Georgia for two months. They agreed that both should return to Germany in October 2009, however, the child was not returned. The father submitted an application to the Central Authority of Georgia.
The court refused to order the return of the child. It considered that, due to the fact that the applicant father had been convicted for number of crimes, this raised a grave risk of hard to the child in case of return as she would not live in a psychologically stable environment.
The court considered that Article 13(1)(b) takes into consideration the best interests of the child and aims to protect the child from physical/psychological harm and from placing him/her in an intolerable situation.
The court received evidence related to the father’s previous criminal convictions. He had been convicted of attempt of rape, for selling/providing narcotic substances to a person below 18 years of age, and for sexual assault in two instances. The first instance of sexual assault was related to deliberate bodily harm and the second one to harassment.
The court considered that these facts raised serious doubts about the return of the child to Germany, to her father, and concluded that it would not provide a psychologically stable environment for the child.
Author: Nata Varazashvili