HC/E/SV 1519
El Salvador
Deuxième Instance
Costa Rica
El Salvador
11 January 2016
Définitif
Déplacement et non-retour - art. 3 et 12 | Droit de garde - art. 3 | Opposition de l'enfant au retour - art. 13(2) | Questions procédurales |
Recours accueilli, retour ordonné
Sections 12 and 94 of Integral Protection of Children and Teenagers (LEPINA, in Spanish); Article 3 of the Convention on the Rights of The Child
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Wrongful retention of two children, a boy aged 4 and a girl aged 6 – Nationals of the United States, Costa Rica and El Salvador – The children resided in Lourdes de San Vito de Coto Crus, Puntarenas, Costa Rica at the moment of the removal to El Salvador – The return application was submitted before the Central Authority of the Republic of El Salvador – Appeal allowed, return ordered – Main issues: removal and retention, rights of custody, objections of the child to a return, procedural issues – The habitual residence of the children before the removal was in Costa Rica – The children were wrongfully retained by their mother in El Salvador because they did not return to Costa Rica after a month of vacation as agreed– Both parents had rights of custody – The hearing process of the children and the taking of their opinions into consideration were not carried out properly – The debate over the merits of the rights of custody unnecessarily delayed the return proceeding, in contravention of the nature and purpose of the Convention.
The children, a boy aged 4 and a girl aged 6 (at the time of the decision) were born in the United States. They moved to Lourdes de San Vito de Coto Brus, Puntarenas, Costa Rica, together with their father, born in Costa Rica, and their mother, born in El Salvador, where they lived for about a year. On 18 November 2014, the whole family went for a month’s holiday in El Salvador. However, when it was time to go back to Costa Rica, the mother hid the children’s passports, causing the father to travel back by himself on 18 December of the same year.
The father requested the international return of the children before the Central Authority of Costa Rica, who remitted the application to the Central Authority of El Salvador. At the latter’s request, on 20 January 2015, a conciliation between the parents was started, at which they made an agreement on child support and a system for the father to communicate with the children.
The return application was rejected by the Court in Childhood and Youth Matters of San Miguel on 21 December 2015, on the grounds that the requirements of Art. 3 of the 1980 Hague Convention on Child Abduction had not been satisfied. The father appealed, arguing that Arts. 3 and 12 of the Convention had been applied erroneously. The appeal was allowed and heard by the Court of Appeal in Childhood and Youth Matters of San Salvador.
Appeal allowed; return ordered. The first instance decision was overruled. Removal was not wrongful, but retention was. None of the exceptions in the Convention have been invoked or established.
The court of first instance decided that the retention was not wrongful, since there was no document specifying a date for the children’s return to Costa Rica and no voluntary agreement between the parents establishing a date to leave the country.
In turn, the Court of Appeal in Childhood and Youth Matters found that the removal of the children to El Salvador was not wrongful given that both parents were present at the time. However, the retention was wrongful. As grounds for its decision, the Court of Appeal considered that the retention of a child becomes wrongful from the moment it is in violation of one of the parents’ custody or contact rights, attributed by a judicial or administrative decision, which occurs when the child is present in a country other than that of his or her habitual residence. In this case, the Court of Appeal found that the children should have gone back to Costa Rica on 18 December 2014, but the mother prevented that from happening, which made the retention wrongful. The Court of Appeal found that the father had neither authorised nor acquiesced to the children staying in El Salvador.
Also, on the basis of a psychosocial and educational examination, it was concluded that the mother never had the intention of going back to Costa Rica with the children. The family visit was an excuse to enter El Salvador, and her plan was to not return.
The court of first instance found that the agreement concluded on motion of the Central Authority of El Salvador granted custody of the children to the mother. However, the Court of Appeal found that the agreement between the parents was simply the result of an administrative conciliation, only for the resumption of communications between the father and the children, which had been hindered by the mother. Also, it found that both parents had full rights of custody at the time of the retention of the children in El Salvador.
The Court of Appeal noted the importance of the best interests of the child and their connection with the child’s right to participate and be heard in any proceedings concerning them. Also, it underscored that the Committee on the Rights of The Child, in its General Comment No. 12, developed an adequate method for the hearing process, ranging from preparing and informing the children before holding the hearing to the assessment of their capacities.
In this case, the Court of Appeal found that the hearing process had not been carried out properly, especially considering how young the children were (4 and 6 years old). Particularly, it considered that the hearing record did not show that the adequate process of preparing and informing the children about the proceeding and its purpose had been properly followed, and that their right to decide whether they wanted to be at the hearing or not had been violated.
In addition, the Court of Appeal established that the assessment of the children’s opinions at the first instance had been poor and contradictory, and thus the reasoning supporting the position of the court of first instance had not been clear.
The Court of Appeal pointed out that the Convention sets a short time for the resolution of return proceedings. Accordingly, Article 11 establishes a maximum of six weeks to make a decision. Similarly, Article 2 points out that the available emergency procedures must be used in the requested State. It was held that the purpose of this is to avoid the illicit change of habitual residence of the children being consolidated by the children’s settlement.
The Court of Appeal found that, in the first instance, the judge should have only analysed whether there had been a wrongful retention instead of allowing for a debate on the merits of the rights of custody. It was held that the judge unnecessarily delayed the return proceeding by ordering the psychosocial examination of the mother, in contravention of the nature and purpose of the Convention. The Court therefore noted that these issues should be resolved by the competent authority in the State of habitual residence of the children.
Authors: Daniela Vuchich, Sofía Ansalone y Natalia Petz (Prof. Nieve Rubaja, Head of INCADAT LATAM summary team; Emilia Gortari Wirz, Assistant)