Arne K. Uggerud, Sverre Erik Jebens, Sven-Jørgen Lindsetmo
15 November 2013
Risque grave - art. 13(1)(b) | Opposition de l'enfant au retour - art. 13(2) | Droits de l'homme - art. 20
2 children wrongfully removed at ages 11 and 13 – Nationals of Portugal –divorced parents – Father national of Portugal – Mother national of Portugal – Custody rights disputed – Children lived in Portugal until January 2013 – Application for return filed with the Central Authority of Portugal in April 2013 – Return ordered – Main issues: Article 13(1)(b) – Grave risk of harm – even though the children did not seem to have a good relationship with their father there was not found to be a serious risk of harm should they return to Portugal and the exception did not apply; Article 13 – Child’s objections - the children’s opinions primarily had to be regarded as a desire to live with their mother, rather than as resistance to returning to Portugal and so the exception did not apply; Article 20 – Protection of Human Rights and Fundamental Freedoms – the court held that it was consistent with human rights for the children to be returned and that the exception did not apply.
The case concerned two children aged 11 and 13 with Portuguese parents. Custody was disputed. The parents were divorced in 2003, and the mother (A) had subsequently had daily care of the children. In January 2013, the mother moved to Norway with the children. The father (B) submitted that an unlawful child abduction had occurred, and claimed return in April 2013. Nordmøre District Court heard the case in June 2013 and concluded that the children should be returned to Portugal. The mother appealed to Frostating Court of Appeal.
The appeal was rejected by unanimous ruling, and the return order was upheld. The court concluded that there was no serious risk of harm, that the children had not opposed return in a legal sense and that return was not contrary to human rights. The exceptions to the duty to return did not apply, and the conditions for return were therefore met.
Author: Bjarte Wivestad Engesland, Higher Executive Officer, Royal Norwegian Ministry of Justice and Public Security
The court began by referring to Norwegian legal theory stating that “the exception provisions are interpreted very narrowly”. The court also referred to existing case law of the Norwegian Supreme Court establishing that “return may not be refused on the basis of a general assessment of what would be in the best interests of the child, and that the requirement must be that return would be clearly unfavourable to the child and that it is relatively clear that this outcome is more likely than not”.
In the specific assessment, the court did not find it substantiated that the father had sexually assaulted his now adult son from a previous marriage. The court concluded that it had also not been substantiated that the father had sexually assaulted the couple’s child. The court therefore concluded that there was no serious risk of harm on this ground in the event of return of the children. However, the court emphasised that the questions access and of where the children should live permanently were not to be decided in an abduction case but by the court in the country of habitual residence. The court also concluded that the mother would accompany the children in the event of any return. Accordingly, even though “information indicate[d] that the children did not have a good relationship with their father and that they do not want any contact with him”, the court concluded that return would not entail a serious risk of harm. The exception relating to a serious risk of harm did not apply.
The court also considered whether the children’s statements that they opposed return meant that the exception in section 12 (c) of the Child Abduction Act applied (Article 13, third paragraph, of the Hague Convention). The children were aged 11 and 13, and the court did not doubt that they opposed return. However, the court took the view that the children’s opinions primarily had to be regarded as a desire to live with their mother, rather than as resistance to returning to Portugal. The exception did not apply.
Finally, the court considered whether return would be consistent with fundamental principles relating to the protection of human rights; see the exception in section 12 (d) [now (e)], of the Child Abduction Act (Article 20 of the Hague Convention). The relevant provisions were Article 8 of the European Convention on Human Rights concerning the right to respect for family life and privacy and Article 3 of the UN Convention on the Rights of the Child regarding the best interests of the child. The court gave weight to the fact that the children’s connection with Norway was not so strong that it would be particularly disadvantageous for them to return to Portugal with their mother. Further, the court concluded that, in the longer term, it would be in the best interests of the children for them to have contact with their father, something that could best be ensured by their return to Portugal. The court therefore held that it was consistent with human rights for the children to be returned, and that the exception did not apply.