Županijski sud u Zagrebu
2 December 2016
Affaire renvoyée au tribunal inférieur
Risque grave - art. 13(1)(b) | Questions procédurales | Règlement Bruxelles II bis (Règlement (CE) No 2201/2003 du Conseil du 27 novembre 2003)
Affaire renvoyée devant le tribunal inférieur
Brussels II a Regulation, Art 20
Civil Procedure Act (Official Gazette, 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08, 57/11, 148/11, 25/13, 89/14), Art 354(2)(11), 365(1)and(2), 380(3).
1 child wrongfully removed at age 3 – National of Croatia– Married parents– Father national of Croatia– Mother national of Croatia – Joint parental responsibility according to 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 Central court of Croatia on 29 August 2016 - Main issue(s): Art. 13(1)(b) grave risk exception to return; Procedural matters, Brussels IIa Regulation – the courts are obliged to give a fully-founded factual basis for the application of Articles 12 and 13 of the Hague Convention.
The proceedings were initiated after the father filed an application for the return of the child to Germany with the German Central Authority. The mother removed the child from their family home in Germany on 6 April 2016 without the father’s prior knowledge or consent. At the time of the removal the child was three years old. On 10 April 2016 she left Germany for Croatia and settled with her parents there. The mother opposed any return of either herself or the child to Germany, claiming that she had been a victim of acts of domestic violence committed by her husband. The return proceedings before the Croatian courts began on 29 August 2016. A decision of the Municipal Court of Osijek, No. 12 R1 Ob-566 (INCADAT Reference 1394) rendered on 3 October 2016 confirmed that the removal of the child from Germany to Croatia was unlawful under Article 3 of the 1980 Hague Child Abduction Convention. The Court found that there was insufficient evidence to substantiate any of the exceptions to return invoked by the mother. It therefore 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.
Appeals to this return decision were lodged both by the mother and by the special guardian that had been appointed to hear the child. The mother argued that there had been substantial violations of the rules of civil procedure, that the facts of the case had been erroneously and incompletely established and that substantive law had been misapplied. The mother argued that the judgement should be quashed and the case remitted for a new trial. The special guardian appealed on grounds of the Family Act and also requested that the decision be remitted for another trial.
The appeal was upheld and the decision of the lower court quashed. The court of first instance was instructed to hear the case anew, and, in doing so, to pay particular attention to the well-being of the child and to give fully-founded reasons for its application of Articles 12 and 13 of the Hague Convention.
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
It was held that the court of first instance had failed to establish the requisite factual basis for ordering return. It had furthermore given insufficient consideration to the child’s psychological health upon return to his father in Germany. In making this finding, the County Court emphasised that the child was only three years old and had never been separated from his mother. Noting that the child had been in Croatia for six months, where he had established a daily routine, the court of first instance was found to have failed to consider the degree to which the child had adapted to his new environment. These facts required the lower court to consider the risk of exposing the child to psychological harm by ordering his return. Finally, it was found that the lower court had failed to adequately determine and account for the evidence of acts of domestic violence committed by the father against the mother, the fact that the father had been prohibited from approaching the mother, and written confirmation that the mother and child were therefore in a safe house.
Shortly after the wrongful removal, a German court had made an interim order granting the father the temporary right to solely decide the child’s residence. In referring to this order, the court of first instance had failed to determine whether Article 20 of the Brussels II bis Regulation applied.
The County Court referred to Article 20 of the Brussels IIa Regulation in relation to the provisional measure taken in Germany by the Schwelm Family Court, granting the father the temporary right to solely decide the child’s place of residence.