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AFFAIRE

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Nom de l'affaire

C., L, c/ S., M. Restitución Internacional de Menor. Recursos Tribunal Colegiado.

Référence INCADAT

HC/E/UY 1606

Juridiction

Pays

Uruguay

Degré

Deuxième Instance

États concernés

État requérant

Argentine

État requis

Uruguay

Décision

Date

6 June 2016

Statut

Définitif

Motifs

Résidence habituelle - art. 3 | Déplacement et non-retour - art. 3 et 12 | Risque grave - art. 13(1)(b)

Décision

Recours rejeté, retour ordonné avec des engagements proposés

Article(s) de la Convention visé(s)

3 12 13(1)(b)

Article(s) de la Convention visé(s) par le dispositif

12 13(1)(b)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans

-

SYNOPSIS

Synopsis disponible en EN | ES

Unlawful retention of a one-year-old child – Argentine national – Married parents – Father was an Argentine national – Mother was a Uruguayan national – Both parents held custodial rights – The child lived in Argentina until July 2015 – The restitution request was submitted to the Argentine Central Authority – Appeal granted, return ordered – Key issues: Article 3 (habitual residence), Articles 3 and 12 (removal and retention), Article 13(1)(b) (grave risk exception) – The child's habitual residence was Argentina – The retention was deemed unlawful as the mother lacked the other parent’s consent – No grave risk was established, as Argentina had judicial mechanisms to protect the mother and child.

RÉSUMÉ

Résumé disponible en EN | ES

Facts

The case concerns a two-year-old girl, born in March 2014 in Argentina. The parents were married and lived in Argentina with the child. The father, an Argentine national, granted the mother, a Uruguayan national, authorization for the child to leave the country until she reached adulthood.

The marriage ended in June 2015, and a pre-mediation process began to establish child support payments. The mother did not attend the second mediation hearing, scheduled for 13 July 2015. Shortly after, the father learned that the mother had traveled to Uruguay with the child and intended to remain there permanently.

The father requested the international return of the child through the Argentine Central Authority, which forwarded the request to its Uruguayan counterpart in November 2015.

On 6 April 2016, a court order was issued instructing the child's return to Argentina. However, on 12 May 2016, the Second Division Family Court of Rosario, Uruguay, overturned this order in its final ruling, lifting travel restrictions and other precautionary measures.

As a result, the child's father appealed the final ruling.

Ruling

Appeal granted, return ordered. The exception under Article 13(1)(b), invoked by the mother, was not deemed proven.

Grounds

Habitual Residence - Art. 3

The court determined that the child's habitual residence was in Argentina, as it was her birthplace and where she had her center of life. It concluded that Uruguay could not be considered her habitual residence, as it resulted from an unlawful act—wrongful retention—which could not be legitimized by the passage of time.

Removal and Retention - Arts 3 and 12

The court ruled that what initially appeared to be a lawful relocation—since the mother had the father’s signed authorization for the child to leave the country—became an unlawful retention when the mother decided to settle in Uruguay without the other parent's consent.

Grave Risk - Art. 13(1)(b)

The mother alleged that she was a victim of domestic violence and argued that returning her daughter to Argentina would pose a grave risk.

The court reasoned that the exception under Article 13(1)(b) not only involves assessing whether the child would face an intolerable situation upon returning to their country of habitual residence but also whether, even if such a risk exists, it can be mitigated through protective measures available in that country, either provided by the requesting parent or ordered by the judicial authorities.

The court concluded that the evidence showed the mother was not highly vulnerable but rather had the emotional resources and support networks to end the alleged violence. Furthermore, it found no proof that Argentina lacked judicial mechanisms to ensure protection if needed.

Finally, considering the possibility that the mother could accompany the child back to Argentina, the court ordered mirror protection measures, such as a restraining order against the father, should the Argentine judge deem it necessary.