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AFFAIRE

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Nom de l'affaire

Cass, 1re Civ., 23 mars 2017, pourvoi no 16-28.730

Référence INCADAT

HC/E/FR 1719

Juridiction

Pays

France

Nom

Cour de Cassation

Degré

Instance Suprême

Juge(s)

Mme Batut (president)

États concernés

État requérant

Suède

État requis

France

Décision

Date

23 May 2017

Statut

Définitif

Motifs

Déplacement et non-retour - art. 3 et 12

Décision

Recours rejeté, retour refusé

Article(s) de la Convention visé(s)

3 12

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

3 12

Autres dispositions

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa)

Jurisprudence | Affaires invoquées

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Publiée dans

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SYNOPSIS

Synopsis disponible en EN

3 children allegedly wrongfully removed – Both parents have custody rights – Children lived in Sweden from 2014 to February 2016 – Application for return filed by the public prosecutor with a court in France on 14 June 2016 – Return refused at first instance and upheld on appeal – Main issue: Art. 3 Wrongful removal – There was an existing agreement between the parents for the permanent relocation of the children to France, making their removal not wrongful.

RÉSUMÉ

Résumé disponible en EN

Facts

This case involved three children who habitually resided in France with their parents until 2014, when they moved to Sweden. After the parents’ separation, the mother returned to France with the children in February 2016. The public prosecutor (procureur de la République) brought proceedings against the mother on 14 June 2016 in order to obtain the return of the children to Sweden, in accordance with the provisions of the 1980 Convention and the Council Regulation (EC) No 2201/2003 of 27 November 2003.

The proceedings went to the Court of Appeal (cour d’appel) of Paris, which declared the removal of the children was not wrongful, as evidence showed that the parents had agreed to this relocation and the father could not unilaterally change the terms of that agreement. The father appealed this decision before the Supreme Court (Cour de Cassation). 

Ruling

Appeal dismissed. The Supreme Court upheld the Court of Appeal’s decision that the removal of the children was not wrongful.

Grounds

Removal and Retention - Arts 3 and 12

In his appeal before the Supreme Court, the father claimed that he only agreed to a temporary relocation of the children to France, not a permanent one.

The Supreme Court affirmed the finding of the Court of Appeal that, based on the evidence presented, there was an agreement between the parents that the mother and children permanently relocate to France. The Supreme Court noted that the father could not unilaterally change the terms of this agreement.

Author: Camille Druilhet