23 April 2020
Traslado y retención - arts. 3 y 12 | Grave riesgo - art. 13(1)(b)
The child was born in Armenia in 2009, where she has always lived and attended school. The parents were married and are now divorced and live in separate households in Armenia.
The mother left the country with the child for a visit to Germany on 21 August 2019. The father agreed in writing to a stay of three weeks until 15 September 2019.
At the time of departure, the mother was already pregnant. According to a medical certificate dated 27 September 2019, she was advised not to go on a flight lasting more than three hours.
Between 9-13 February 2020, the mother was in hospital in Germany where she gave birth to a baby.
On 5 February 2020 the father submitted an application for return.
The court ordered the return of the child to Armenia within four weeks.
The court rejected the mother's argument that there was no wrongful retention because she was not fit to travel for health reasons and that the child had also agreed to stay in Germany. The child herself was not the holder of the right of custody and therefore could not make a decision as to wrongfulness. Also, in view of the child’s age, she was not able to make a well-considered decision on permanent residence.
The mother's argument that the return of the child was not possible in practice because of the lack of flight options was not tantamount to a risk of serious harm to the child's physical and psychological well-being, the court said. Furthermore, the argument that it was impossible in practice to return the child had not been demonstrated; an excerpt from a booking website showing that no direct flights or flights via Ukraine or Belarus are possible is not sufficient for this purpose.
Moreover, it is not apparent that the child would be exposed to greater health risks as a result of the COVID-19 pandemic in Armenia than in Germany, which is one of the countries with the highest number of cases worldwide.
The burdensome character of the journey to Armenia does not constitute an intolerable situation. The burdensome aspects for the mother herself should not be taken into account.