CASO

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Nombre del caso

OLG Karlsruhe 2 UF 200 19 - 25 June 2020

Referencia INCADAT

HC/E/DE 1470

Tribunal

País

Alemania

Instancia

Tribunal de Apelaciones

Estados involucrados

Estado requirente

Estados Unidos de América

Estado requerido

Alemania

Fallo

Fecha

25 June 2020

Estado

Definitiva

Fundamentos

Cuestiones relativas a la restitución | Grave riesgo - art. 13(1)(b)

Fallo

Apelación desestimada, restitución ordenada

Artículo(s) del Convenio considerados

13(1)(b)

Artículo(s) del Convenio invocados en la decisión

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Otras disposiciones

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Jurisprudencia | Casos referidos

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Publicado en

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SUMARIO

Sumario disponible en EN

Facts

Karlsruhe Local Court had obligated the mother, in its order dated 14 November 2019 (File No: 2 F 1701/19, INCADAT Case No: 1468) to effect, within two weeks, the return of the two children, one born in December 2015 and the other born in August 2017, to the U.S. State of Connecticut. Among other things, the Court had ordered that direct force could be used to enforce the surrender [of the children]. The complaint (Beschwerde) appeal made by the mother was rejected by Karlsruhe Higher Regional Court in its order dated 3 February 2020 (File No: 2 UF 200 9, INCADAT Case No: 1469) and the initial order for the return of the children was confirmed.

In a letter dated 17 March 2020, the mother let it be known that travel to the United States would neither be possible nor reasonable due to the COVID-19 pandemic. The Chamber of the Court also found in this manner and a renewed assessment on the possibility of travel was set for 19 April 2020. Following a motion brought by the father, the court bailiff was asked by way of an order dated 2 June 2020, to carry out enforcement of surrender between 12-23 June 2020.

Enforcement was attempted without success, as the mother and children could not be found at their registered address. The mother then made a statement that the suspicion of sexual abuse raised in the court of first instance must now be considered to be confirmed, as the child had been having psychological treatment since February, and she had submitted a report from a child psychologist to this effect. She therefore applied for enforcement to be suspended.

Ruling

The court rejected the mother’s application to have the use of direct force in enforcement suspended.

Grounds

Issues Relating to Return

The court stated that the preconditions for enforcement continue to be in place. The mother had, in violation of the court order, still not returned the children to the U.S.A.

The court pointed out that the rules of the Hague Child Abduction Convention are intended to stop parents from wrongfully taking their children abroad. This is to ensure the decision on custody is made in the child’s former place of habitual residence. The child’s best interests take priority when applying the Hague Child Abduction Convention rules; for this reason, enforcement measures should not be put in place if this is not in line with the child’s best interests. After the mother had outright refused to allow the return of the children and their surrender to the father, the surrender of the children could only be carried out with the use of direct force.

Grave Risk - Art. 13(1)(b)

The court cannot see any specific indications that the return to the U.S.A. would in any way represent a grave risk of physical or psychological harm for the children. As citizens of the United States, the mother and the children are adjudged not to be affected by the travel ban due to Covid-19. Nor are there any longer any limitations imposed by authorities relating to the use of hotels for accommodation during the 14-day quarantine period.

In spite of the mother’s testimony, the court does not see any indications of the father having sexually abused one of the children. Investigations which took place in the U.S.A. before the abduction did not confirm this and, aware of the accusations, the court there confirmed the father's joint rights of custody and rights of access. The psychologist’s report did not deal with the issue of it being totally unrealistic that a small child, more than two years after the alleged offence is said to have occurred and which the child went through at the age of two, would be in a position to describe this in a comprehensible manner from their own memory. This would seem to suggest the child was asked leading questions. This presumption is strengthened by the fact that the testimony made by the mother as to the alleged abuse of the child only ever occurred when she became aware that her testimony up to that point would not be sufficient to stop the children being returned to the United States.