Općinski sud u Osijeku
3 October 2016
Infirmé en appel
Droit de garde - art. 3 | Engagements | Risque grave - art. 13(1)(b) | Opposition de l'enfant au retour - art. 13(2) | Questions procédurales
Family Act, (Official Gazette No. 103/15), Art 366
1 child wrongfully removed at age 3 – National of Croatia – Married parents– Father national of Croatia – Mother national of Croatia – Joint parental responsibility under the German Civil Code – Child lived in Germany until 6 April 2016 – Application for return filed with the Central Authority of Croatia on 10 June 2016 – Application for return filed with the courts of Croatia on 29 August 2016 – Return ordered – Main issues: Rights of Custody, Art. 13(1)(b) “grave risk” exception to return, Objections of the Child to a Return – The child’s removal from Germany to Croatia was held to be unlawful under the Hague Convention, and none of the exceptions to ordering return were deemed applicable.
The proceedings were initiated at the request of the father, who filed an application for return of the child to Germany with the German Central Authority. The mother and father were married and had lived together in Italy for a year and a half before moving to Germany, where they lived for another year and a half. Their child was born in Germany. The mother removed the child from their family home in Germany on 6 April 2016 without the fathers' prior knowledge or consent. At the time of the removal the child was three years old.
Upon his return home from work on 6 April 2016, the father noticed that his wife and a child, along with their personal belongings, were missing. He informed the police and also initiated judicial proceedings before the German authorities to establish that the child had his residence there. The mother claimed that she had been the victim of acts of domestic violence perpetrated by her husband on 5 April 2016, the day before she removed the child from the family home. The police had intervened on that occasion. The next day, while the father was at work, the mother found shelter in a “safe house” for victims of domestic violence. She stayed there for three days. On 10 April 2016 she took her child to eastern Croatia to live with her parents. From 12 July 2016 she moved to an area of central Croatia to live there with a new partner and her child. The mother never prevented contact between the father and the child, which occurred regularly via Skype. The mother opposed any return of either her or the child to Germany, citing the acts of domestic violence allegedly committed by her husband. The return proceedings before the Croatian courts commenced on 29 August 2016.
The Court ruled that the child’s removal from Germany to Croatia was wrongful under the 1980 Hague Child Abduction Convention and ordered the return of the child. The mother was ordered to hand the child over to the father, together with his travel document, immediately after the decision became final.
Mirela Župan, PhD, Associate Professor , Chair for Private International Law, Faculty of Law University of Osijek
Martina Drventić, research assistant at IZIP project, Faculty of Law University of Osijek
The applicant father claimed that the removal was wrongful under Article 3 of the Convention. The habitual residence of the child immediately before his removal was held to be in Germany. Under German law parents have joint parental responsibility over the child. After the wrongful removal took place the father had initiated proceedings before the competent German authorities for a decision granting him the sole right to determine the place of residence of the child. On 23 August 2016, following an expedited procedure without oral hearings, the Family Court in Schwelm issued an interim order granting the father the right to solely determine the residence of the child. This provisional measure only concerned the right to determine the child’s place of residence; all other rights of parental responsibility expressly remained shared by both parents. The decision was communicated to the Municipal Court of Osijek for consideration as part of the return proceedings. The Court accordingly held that the child’s removal had breached the father’s rights of parental responsibility under the law of the State in which the child was habitually resident immediately before the removal (i.e. Germany). It further noted that the father had actually been exercising these rights at the time of the removal, such that the removal was wrongful under the Convention.
The child's special guardian (see “Procedural Matters” below) had argued that the Court should impose conditions to facilitate the safe return of the child, given the evidence of domestic violence in the case. She claimed such arrangements ordered under Article 11(4) of the Brussels II a Regulation ought to be requested and undertaken in Germany if return of the child were to be ordered. The Court made no reference to this suggestion and did not mention it in its decision.
The Court had rejected the mother’s claim that Article 13(1)(b) of the Hague Convention should be applied and her corresponding argument that there would be a grave risk of exposing the child to psychological harm upon return. The Court noted that the child and the father had met several times since the removal, and that these meetings had not resulted in any harm to the child.
The Court equally rejected the mother’s second argument that return should be refused on grounds of the child’s alleged objections to return. In so doing, the Court did not comment on the child’s age or degree of maturity. It additionally considered that there was an existing German interim order (provisional measure) granting the father the right to solely determine the residence of the child.
The child was heard in the proceedings by an appointed special guardian. The guardian stated that attempting to discern the child’s opinion towards the return proceedings would be inappropriate, in the light of his young age. The guardian considered that it would not be in the interest of the child to separate him from his mother, who refused to return to Germany.
The father was heard by the Court during the proceedings.
There is no evidence of any mediation procedure undergone by the parents, nor of any attempts by the Court to encourage the mother to return to Germany with the child voluntarily.