HC/E/SE 1165
Suède
Instance Suprême
République tchèque
Suède
27 April 2012
Définitif
Résidence habituelle - art. 3 | Consentement - art. 13(1)(a) | Questions de compétence - art. 16
Recours accueilli, retour refusé
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The Supreme Court initially agreed with the Court of Appeal that the children had, at the time of the wrongful retention, their habitual residence in the Czech Republic. However, as the case was pending, the mother applied to the District Court in Frýdek-Místek for a ruling on where the children should reside.
On 5 March 2012 the District Court provisionally decided that while the residence application before it was pending, the children had the right to stay with their mother at their current location, in Sweden. When the Supreme Court came to give judgment there was still no final judgment from the District Court.
Relying on the provisional ruling of the District Court, the Supreme Court noted that the mother had the right to reside in Sweden with the children. The Supreme Court held that the District Court decision should be treated as equivalent to a consent for the purposes of Article 13(1)(a) of the 1980 Hague Child Abduction Convention.
It was a basic principle behind both the Hague Convention and the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) that a Court decision concerning custody etc. from the State in which the child had his habitual residence immediately before the wrongful removal or retention should be respected by other States Parties (cf. Article 14 of the Hague Convention).
In the light of the above the Supreme Court ruled that the father's return application should be rejected.
Consent - Art. 13(1)(a)
See above: Habitual Residence
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See above: Habitual Residence
Author of the Summary: Judge Göran Lambertz, Sweden