HC/E/PY 1303
Paraguay
Deuxième Instance
Espagne
Paraguay
22 August 2012
Définitif
Résidence habituelle - art. 3 | Droit de garde - art. 3 | Intégration de l'enfant - art. 12(2) | Questions procédurales
Recours accueilli, retour refusé
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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.
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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
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].