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​​The case concerned three children born respectively in 2012, 2013 and 2014, whose parents were married and lived in Serbia. In June 2015, the mother left Serbia with the children, with the father’s written authorisation, for a short stay with her family in France. She did not return to Serbia with the children at the end of their stay. On January 15, 2016, the public prosecutor brought proceedings against the mother before the District Family Court (juge aux affaires familiales du tribunal judiciaire) of Paris under the 1980 Convention.  

​On February 25, 2016, the District Family Court declared the retention of the children in France wrongful and ordered their return to Serbia. The mother appealed the decision. On June 9, 2016, the Court of Appeal (cour d’appel) of Paris found that there is a grave risk that the return of the children would expose them to psychological harm and place them in an intolerable situation and overturned the first instance decision, issuing a non-return order on the basis of Article 13(1)(b). The father appealed the decision before the French Supreme Court (Cour de Cassation). ​ 

​​Appeal dismissed. The French Supreme Court upheld the decision of the Court of Appeal not to order the return the children, finding that the father’s conduct created a grave risk of harm and an intolerable situation under Article 13(1)(b) of the 1980 Convention.​  

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

​In the appeal before the Supreme Court, the father recalled that the custody of the children was awarded to him as a provisional measure in the divorce proceedings and considered that it was in their best interest to return to their State of habitual residence. He also claimed that the testimonies provided only concerned the parents’ behaviour after the mother and children arrived in France, and not while they were living in Serbia. He, therefore, argued that the Court of Appeal erred in finding a grave risk under Article 13(1)(b), since, in his view, the evidence relied upon did not demonstrate that the children would face any danger upon returning to Serbia. 

​The Supreme Court upheld the Court of Appeal’s findings of violence against the mother, based on the evidence that was put before it (testimonies and a recording of the father making death threats). In upholding the Court of Appeal’s decision, the Supreme Court also took into consideration the psychological report on the oldest child, who indicated that her father was violent towards her mother and that the prospect of a return to Serbia caused her severe anxiety. The Supreme Court found that a grave risk under Article 13(1)(b) was established, justifying a non-return. 

Best Interests of the Child

​The Supreme Court stated that, pursuant to Article 3(1) of the UN Convention on the Rights of the Child, the exceptions to return must be assessed with the best interests of the child as a primary consideration, which implies that, where the specific circumstances of the case reveal the existence of a grave risk or the creation of an intolerable situation for the child, the child’s best interests may be not to return.​ 

Author: Camille Druilhet