5 December 2019
Grave riesgo - art. 13(1)(b)
Apelación desestimada, restitución ordenada
The children, both girls, were born 2015 and 2017, respectively. The mother and the father of the children married in 2012 and, according to Argentinian law, were entitled to joint rights of custody. The family lived in Buenos Aires, in one of the two houses owned by the father, who was employed by the city government as an architect.
The father gave his permission, as certified by a notary on 26 December 2018, for the mother to take the children to Germany with her from 30 December 2018 until 30 January 2019. On 29 January 2019, the mother informed the father that she would not be returning to Argentina with the children.
In Court, the mother stated that the father’s son was a peadophile and that he posed a threat to the children. Argentinian criminal proceedings were initiated in relation to this allegation, and the son was acquitted of the alleged sexual abuse and was no longer living at the father’s home. Furthermore, the mother claimed, the children would be at risk in Argentina because of the high level of inflation and poor economic outlook. She herself could not return, either, because of these circumstances and the threat of being subject to criminal prosecution. Moreover, she claimed to be worried that imminent custody proceedings in Argentina would result in a judgment to her detriment and that a separation from her as the primary caregiver would place the children in an intolerable situation.
In its order dated October 24, 2019, Jena Local Court approved the father's application for return of the children and ordered their return to Argentina. The mother lodged a complaint appeal (Beschwerde) with Thuringia Higher Regional Court.
The mother’s complaint appeal was rejected and the order to return the children remained in place.
First, the Court clarified that the difficulties which, due to the nature of the matter, are associated with such a return, could not be taken into account and that only exceptionally grave impairments which exceed these difficulties could be considered. In the view of the Court, the conditions defining exceptional circumstances were not met.
The court stated that there was no proof of a risk of attacks being committed by the half-brother, as he was acquitted in the Argentinian criminal proceedings and no longer lived in the same home as the children. Furthermore, the steps taken after the allegations were made, i.e. the half-brother moving out and the fact that criminal proceedings were conducted, showed that it was also possible for comprehensive and effective protection to be offered to the children in Argentina, should this be necessary.
The Court went on to state that the mother’s presumption that criminal proceedings conducted in Argentina would result in a judgment to her detriment, would not constitute exceptional circumstances, as the return proceedings cannot anticipate the result of custody proceedings conducted in the country of origin.
Furthermore, the Court pointed out that the taking parent could not invoke a risk caused by a change of the primary caregiver if, in doing so, the parent invoking such a risk herself actually caused it by refraining from accompanying the child – something which could be reasonably expected of her. In the view of the Court, this did not constitute an intolerable situation, as any criminal sanctions the mother might have had to expect would have been a typical result of her unlawful behaviour; nor does the fact that the country might have a worse economic outlook than Germany constitute an intolerable situation, either. As the father owned two pieces of real estate worth a total of 800,000 [US$] and was in work, both as an employed and a freelance architect, it could well be expected that he was in a position to provide child support.