Schleswig Holsteinisches Oberlandesgericht
8 January 2014
Droit de garde - art. 3 | Risque grave - art. 13(1)(b)
Recours rejeté, retour ordonné
The applicant and respondent were married and lived together in Sweden with their son and daughter. The daughter was born on 14 June 2010. In 2013, having told the father of her intention, the mother moved to Germany with son and daughter. A court ordered that the daughter be returned. It was against this court order that the Respondent mother submitted a complaint appeal.
The complaint appeal was broadly rejected and it was once again ordered that the daughter be returned; the deadline for this was extended. It was not possible to establish any reason to believe that the child’s wellbeing would be endangered in the event that she were returned.
The parents have joint custody of their daughter. There is no evidence of the (implied) consent of the father to the daughter being taken to Germany permanently. For a child to be deemed to have been taken abroad illegally, there is no requirement that this must have been done in secret.
The court rejected the complainant’s arguments that returning her daughter would subject her to a severe risk of physical or mental harm. The court allowed her to accompany her daughter to Sweden and to keep her in her care until such time as custody proceedings took place. The court also ruled that the separation from her brother, then aged 17½, would not constitute a risk to the child’s wellbeing. It ruled that it had to be expected that a sibling of this age might move away from other siblings (e.g. in order to spend time in a foreign country or study at university).