Tribunal de Apelaciones
Estados Unidos de América
6 April 2020
Residencia habitual - art. 3 | Grave riesgo - art. 13(1)(b)
Apelación desestimada, restitución ordenada
In the order issued by Pankow/Weißensee Local Court (File ref.: 13 F 8440/19, INCADAT Case No 1473), the mother was obliged to return the child to the district where the father was resident in the USA. The reasoning provided by the court was that the mother was wrongfully retaining the child in Berlin following a visit. According to the court, its habitual residence had previously been with its father in the USA.
In her complaint (Beschwerde) appeal against the order, one of the arguments brought forward by the mother was that the father had, in the past, wrongfully retained the child in the USA. She also argued that in the event of a return, it was to be expected that contact would be broken off altogether. She said it was not to be expected that the father would bring the child back to her voluntarily. She, however, could not get a US visa. She claimed that due to the coronavirus pandemic, the US authorities would not allow a journey to Germany for the purposes of a visit.
The complaint (Beschwerde) appeal lodged by the mother was refused, the child should be returned to the USA.
The court deemed the mother’s appeal to be unfounded. The argument brought by the mother, that the child had lived in the Dominican Republic before having lived in the USA and had family and other social ties there, was immaterial as the crucial issue was the residence immediately before the breach of the custody and access rights occurred. Furthermore, according to Article 12 of the 1980 Convention, habitual residence should be based on the actual centre of interest, and not the legality of such residence.
The court is of the opinion that the return would not entail a grave risk of exposing the child to physical or psychological harm or otherwise place the child in an intolerable situation. The mother’s argument that a complete break of contact was to be expected in the event of a return was immaterial for the Hague Child Abduction Convention proceedings, the court said. The question of access rights is often an issue after Hague Child Abduction Convention proceedings, the court said, and is a matter to be clarified by the competent courts in the state of habitual residence, as part of custody proceedings.