AFFAIRE

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Nom de l'affaire

A. J. P. F. s/ Restitución Internacional

Référence INCADAT

HC/E/PY 1303

Juridiction

Pays

Paraguay

Degré

Deuxième Instance

États concernés

État requérant

Espagne

État requis

Paraguay

Décision

Date

22 August 2012

Statut

Définitif

Motifs

Résidence habituelle - art. 3 | Droit de garde - art. 3 | Intégration de l'enfant - art. 12(2) | Questions procédurales

Décision

Recours accueilli, retour refusé

Article(s) de la Convention visé(s)

3 13(1)(b) 12(2)

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

12(2)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans

-

INCADAT commentaire

Exceptions au retour

Intégration de l'enfant
Début de la procédure aux termes de la Convention

RÉSUMÉ

Résumé disponible en EN | ES

Facts

The child was born on 7 April 2007 in Talavera de la Reina, Toledo, Spain to married parents. In mid-February 2009, the father authorised the child to leave Spain (where the family lived) and travel for a month with the mother to Paraguay to meet her family.

The mother and the child travelled to Paraguay on 19 February 2009 and had to return on 19 March 2009 but this never happened.

On 19 April 2009, the Spanish Court (Juzgado de Primera Instancia e Instrucción N.º 5 de Talavera de la Reina) homologated the agreement between the parents according to which the father held custody rights.

On 15 April 2011, the father introduced the request for the return of the child to the Paraguayan Court of First Instance (Juzgado de Primera Instancia de la Niñez y la Adolescencia de la ciudad de Capiatá), which subsequently ordered the return of the child.

The mother appealed.

Ruling

Appeal allowed, return refused. Although the retention was wrongful, the court refused return because the request had been introduced more than a year after the retention and the boy was settled into his new family, educational and social environments.

Grounds

Habitual Residence - Art. 3


The Court considered that the habitual residence of the child, immediately before the retention, was in Spain.

Rights of custody - Art. 3
The Court considered that the father was the parent who had custody rights, according to the agreement homologated by the Spanish Court on 19 April 2009.

Settlement of the child - Art. 12(2)
The Court heard the child and considered the evidence provided in the social and psychological reports. It understood that the child was perfectly settled in his new environment where he had lived for three years and had a good relationship with his family: mother, sister and extended family; he was attending pre-school there and had friends. The Court considered that the boy was immersed in a safe environment and he was emotionally stable.

Consequently, the Court concluded that according to Art. 12(2) the child should not be returned to Spain since the father had introduced his request more than a year after the wrongful retention (two years after that) and the child was settled in his new environment.

Rights of Custody - Art. 3

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Settlement of the Child - Art. 12(2)

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Procedural Matters


The procedure lasted almost a year and a half between the filing of the request with the first instance court (Juzgado de Primera Instancia de la Niñez y la Adolescencia de la ciudad de Capiatá) and the appellate court decision denying return of the child (Tribunal de Apelación de la Niñez y la Adolescencia).

Authors of the summary: Professor Nieve Rubaja and Mercedes Carabio, Argentina

INCADAT comment

Commencement of Convention Proceedings

For the purposes of Art 12(1) the obligation on Contracting States to return children ‘forthwith' exists where less than 12 months has elapsed between the wrongful removal / retention and ‘the commencement of the proceedings before the judicial or administrative authority' in the Contracting State of refuge.

Courts in several Contracting States have considered the issue of the precise date of the commencement of such proceedings and have concluded that it is not enough for the purposes of Article 12(1) for the return application to have been filed with the relevant Central Authority in the State of refuge, rather civil return proceedings must have been initiated.  In this it has been noted that the reference to administrative authorities in Art 12 refers to States where administrative tribunals have jurisdiction for return petitions.

Canada
V.B.M. v. D.L.J. [2004] N.J. No. 321; 2004 NLCA 56 [INCADAT cite: HC/E/CA 592].

United States of America
Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997) [INCADAT cite: HC/E/USf 105].

The issue has been accepted without argument in both England & Wales and Scotland:

Re M. (Abduction: Acquiescence) [1996] 1 FLR 315, [INCADAT cite: HC/E/UKe 21];

Perrin v. Perrin 1994 SC 45, 1995 SLT 81, 1993 SCLR 949, [INCADAT cite: HC/E/UKs 108].