AFFAIRE

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Nom de l'affaire

Högsta domstolens beslut den 27 april 2012 i mål Ö 939-12

Référence INCADAT

HC/E/SE 1165

Juridiction

Pays

Suède

Degré

Instance Suprême

États concernés

État requérant

République tchèque

État requis

Suède

Décision

Date

27 April 2012

Statut

Définitif

Motifs

Résidence habituelle - art. 3 | Consentement - art. 13(1)(a) | Questions de compétence - art. 16

Décision

Recours accueilli, retour refusé

Article(s) de la Convention visé(s)

1 2 3 4 5 12 13(1)(a) 13(1)(b) 13(2) 14 13(3) 12(2) 12(1)

Article(s) de la Convention visé(s) par le dispositif

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Autres dispositions
(Loi suédoise sur la reconnaissance et l'exécution des jugements étrangers en matière de garde, etc. et sur le retour des enfants); article 17 du Règlement Bruxelles II bis (Règlement (CE) No 2201/2003 du Conseil du 27 novembre 2003)
Jurisprudence | Affaires invoquées

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Publiée dans

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RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The proceedings concerned two girls born to Czech parents. Following the end of the parents' marriage the District Court of Frýdek-Místek, Czech Republic, approved an agreement that the mother would have care of the children.
In May 2010 the mother moved to Sweden, and in August 2010 the girls joined her.

The father petitioned for the return of the girls to the Czech Republic. His case was that he had agreed to the girls going to Sweden, but only for a certain period of time, and by being kept in Sweden they were being wrongfully retained.

Under Czech law both parents normally have parental responsibility, including a right to decide jointly on important matters concerning the children, for example the country in which they reside. This rule applies even if one of the parents has been awarded custody.

The Svea Court of Appeal (sitting as a court of first instance) ordered the return of the girls. The mother appealed to the Supreme Court.

Ruling

Appeal allowed and return refused; regard had to be paid to the terms of the provisional order of the Czech District Court permitting the children to live with the mother in Sweden.

Grounds

Habitual Residence - Art. 3


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

Consent - Art. 13(1)(a)

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Jurisdiction Issues - Art. 16


See above: Habitual Residence

Author of the Summary: Judge Göran Lambertz, Sweden