11 March 2020
Résidence habituelle - art. 3 | Droit de garde - art. 3 | Risque grave - art. 13(1)(b)
Recours rejeté, retour ordonné
The child was born in Trier, Germany, in March 2018. In May 2018, the father acknowledged paternity of the child. In early July 2018, the family moved to Spain and from December 2018 onwards, rented an apartment in Madrid. The family registered in the Register of Residents, enrolled the child in preschool and also took the child to several medical appointments in Spain. During this time, the child and the mother repeatedly stayed in Trier, where the child also had a registered residence, while the father was working in the Netherlands. After the parents had separated, the mother took the child to Trier in September 2019 against the express wishes of the father.
On 7 January 2020, the mother initiated proceedings at Trier Local Court contesting paternity; these proceedings were not yet concluded at the time this decision was issued. In its order dated 9 January 2020, Koblenz Local Court approved the father’s application for return and ordered the return of the child to Madrid, Spain. The mother then lodged a complaint appeal (Beschwerde) against this decision on 27 January 2020.
The mother’s complaint appeal (Beschwerde) was rejected and the order for return was maintained with the specification that the child was to be returned to Spain but not necessarily to Madrid.
In the view of the Court, the child’s habitual residence was in Spain. It specified that, while such a decision must generally be based on the child's place of residence and not that of the parents, it also had to be taken into account that very young children share their parents’ social environment as they are dependent on them. According to the Court, indicators for a habitual residence in Spain were the period of residence of more than one year; the parents’ apparent wish to stay there, which could be seen from the fact that they rented an apartment, registered their residence and enrolled the child in preschool, as well as the fact that the child received medical attention in Spain. The multiple stays in Trier and the fact that a residence was registered there do not contradict this, as it was clear from the start that these stays were intended to be temporary and would only last for as long as the father was working in the Netherlands, and because the family always returned to Madrid. The Court also found that the child’s German nationality was immaterial in this respect.
The court ruled that paternity, which forms the necessary basis for any rights of custody, was in this case governed by German law, as Spanish law refers such matters to the law of the state of habitual residence at the time when the parent/child relationship was established in law, and German law allows such a referral. Furthermore, paternity is not impeded by the mother’s contestation until a final and binding ruling has been issued on the matter. A deferment of the return proceedings until such a ruling was deemed to be precluded by the principle of expedited proceedings under the Hague Child Abduction Convention.
The father's joint rights of custody were deemed to be based on Art. 16 paragraph 4 Hague Child Protection Convention, according to which the attribution of parental responsibility by operation of law is governed by the law of the State of the new habitual residence. Such a change of habitual residence to another State, namely Spain, (see above) was deemed to have taken place; according to Spanish law, the parents were entitled to joint rights of custody.
In the view of the Court, the conditions for such an exception had not been met either, even though the return of the child without his/her mother would be considered problematic. Nevertheless, it stated that it could be expected of the mother to return to Spain with the child, as it was she who, through her actions, brought about the current unlawful circumstances.