Općinski sud u Rijeci
16 June 2017
Susceptible de recours
Risque grave - art. 13(1)(b) | Engagements | Opposition de l'enfant au retour - art. 13(2)
Brussels IIa Regulation, Art 11
Family Act, (Official Gazette, No. 103/15), Art 91, 92
Civil Procedure Act (Official Gazette, No. 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 219
1 child wrongfully retained at age 5 – National of Croatia and Germany – Married parents – Father national of Croatia and Germany – Mother national of Croatia – Joint costudy according to the German Civil Code – Child lived in Germany until December 2015 – Application for return filed with the Central Authority of Croatia on 22 March 2016 – Application for return filed with the courts of Croatia on 30 May 2016 – Return ordered – Main issues: Art. 13(1)(b) grave risk exception to return, Undertakings, Objections of the Child to a Return – The Court ordered the return of the child, whose retention in Croatia was found to be unlawful under Art. 3 of the 1980 Hague Child Abduction Convention.
The procedure for the return of the retained child was initiated by the father through the German Central Authority. The mother came to Croatia in December 2015 to assist with care for her sick mother. With the express consent of the father, the child came with the mother. The mother owned a flat in Croatia and began actively looking for a job while staying there. The child was enrolled in and attended a local kindergarten. In February 2016 the mother informed her husband that she would remain permanently in Croatia. The father initiated the procedure for the return of the child, by filing a return application with the German Central Authority in March 2016. The return proceedings before the Croatian courts commenced on 30 May 2016. The Municipal Court of Rijeka, No. R1 Ob-336/16 of 27 July 2016 (INCADAT Reference 1392) refused the request for the child’s return. The grounds for this refusal was held to be Art (13)(1)(b) of the 1980 Hague Child Abduction Convention, based on evidence of physical violence and unstable circumstances due to the long-term psychiatric hospitalization of the father.
The first instance court decision was appealed by the applicant father and a special guardian for the child. The special guardian alleged that there had been substantial violations of rules of civil procedure, an incomplete and erroneous establishment of the facts, and misapplication of substantive law. The County Court of Zagreb No. 15 Gž Ob-1264 / 16-2 of 11 October 2016 (INCADAT Reference 1393) upheld the appeals, set aside the first instance decision and remitted the case to the first instance court for a new trial.
The court of first instance re-examined all of the circumstances of the case in the renewed trial. Further evidence was obtained by hearing the mother (during the proceedings in Croatia) and hearing the father (who had been unable to travel to Croatia for medical reasons) before the Family Court in Ulm, Germany.
The Court ordered the return of the child, whose retention in the Republic of Croatia was found to be unlawful under Article 3 of the Hague Convention. The Court ordered the mother to hand the child and his travel document over to the father.
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 Court held that the conditions set out in Article 13(1)(b) of the Convention were not met on the facts of the case. The Court explained that Germany “… is a cultured, well-organised and civilised country in which there is no state of war, poverty, nor epidemic (illness), and which is a Member of the European Union; also a Party to the Convention.” As far as the particular facts were concerned, the Court considered that those who opposed the return of the child had not proven that, within the meaning of Article 13(1)(b), there was a grave risk of exposing the child to physical or psychological harm upon return. Besides merely alleging that the police had intervened in the family’s affairs in Germany, the mother had failed to provide the Court with evidence to explain why this police intervention had occurred in Germany in the first place, and how it had ended. It was noted that she could have asked the Court to obtain such evidence (pursuant to Art. 219, Croatian Civil Procedure Act), but had not done so.
The Court found that other parts of the mothers' testimony (the possible psychiatric illness of the father and the assertion that the father had physically and psychologically harmed the son) had not been conclusively proven in the course of the proceedings.
The Court noted that, during the first trial of this case, the Croatian first instance court had requested information from the German authorities on whether measures to protect the child upon his return could be taken, in conjunction with Article 11(4) of the Brussels II a Regulation. By the time the hearings had concluded, the Court had not received the requested information. Nevertheless, the Court considered that there would be no serious danger if the child were to return. The Court noted that the child had been living in Germany since his birth, save for occasional breaks, and that he had attended kindergarten there. The Court further noted the observation of the appellate court that neither divorce nor custody proceedings had so far been initiated in Germany, which it took to mean that the conditions of family life would still be relatively stable upon return. This was cited as a further indicator that it would be safe to order the child’s return to Germany.
The court accepted the assessment of the special guardian of the child and a psychologist from the Centre for Social Welfare of Rijeka regarding the child’s opinion and possible objections to return. They found that the child (who was at this point age 6) did not have a sufficient degree of maturity and that he would not understand the subject of the proceedings. He would equally be unable to formulate and express his opinion in an appropriate way for them to be taken into account as part of the proceedings. However, during the proceedings the Court expressly considered whether it would be appropriate to hear the child and made arrangements for the father to be heard, notwithstanding that this had to occur in Germany due to his medical conditions.