mardi 1 novembre 2011

International Child Abduction: the concept of physical and psychological harm - Supreme Court, Civil Division, Paris, France 26/10/2011

Civil Aspects of International Child Abduction (or parental abduction): clarification of the Court of Cassation on the concepts of "removal or wrongful retention" and "physical or psychological harm" under the Convention on Hague on October 25, 1980 (Article 3 and 13 b) [translation of the French version of the document listed below]

Reminder of the provisions of the Hague Convention of 25 October 1980 on International Child Abduction: The Hague Convention of 25 October 1980 regulates the Civil Aspects of International Child Abduction in countries that have ratified, which include France. The Convention aims to secure the prompt return of children wrongfully removed or retained in any Contracting State, and enforce effectively, in the other Contracting States rights of custody and of access. (Article 1).
Article 3 specifies that the removal or the return of the child is considered illegal when two conditions are met: it is in breach of rights of custody attributed ... by the law of the State in which the child was habitually resident immediately before the removal or return and those rights were actually exercised ... at the time of removal or return. The rights of custody mentioned in the Convention is in force in the State where the child was habitually resident immediately before the removal or return. It does not necessarily mean that a court decision has been made and can "arise by operation of law, a court or administrative order, or agreement in effect under the law of that State. "

In the presence of a request for return, the Convention makes a distinction between the date the application is made.
1) When the child is wrongfully removed or retained for less than a year at the time of the request, the judicial or administrative authority of the State where the child, shall order his immediate return (Article 12 of la), except to establish:
- That the individual applicant did not exercise her right to custody at the time of wrongful removal or had consented subsequently, or
- The return of the child is exposed to serious risk of physical or psychological harm or place the child in an intolerable situation (Article 13)
The return of the child may then still be refused if the child "objects to being returned and has attained an age and maturity at which it is appropriate to reflect this opinion. "(Article 13) or the return of the child" would not be permitted by the fundamental principles of the requested State on the safeguarding of human rights and fundamental freedoms "(Article 20)
2) When the child is wrongfully removed for over a year at the time of application, the judge of the requested State shall also order the return of the child, unless they establish that the child s' is integrated into the new environment

In this case, the union contracted in the United States between a woman of French nationality and a man of American, were born two children, one in 2005 in the United States, the second being born in France where the mother gave birth while she had remained on French soil after visiting his father, seriously ill before he died.
The father has taken the U.S. Central Authority of a request for return of her two children, the Tribunal de Grande Instance de Lyon ordered the prompt return of children in the United States with provisional enforcement. The provisional execution was suspended in chambers on the second child before the Court of Appeal of Lyon does not confirm, by decree of December 9, 2008, the return of children to the United States.
These were stopping whose appeal had been filed. The facts do not specify if by stopping was executed on the older child and if it were actually returned to the United States. The decision of the Court of Cassation is interesting in that it settles the question of the implementation of the Hague Convention to a child who had been "moved" or with "no return" had not been made before his birth.

Considering that:
  • the spouses had both the full and complete exercise of parental responsibility and had their habitual residence in the United States,
  • the residence had not changed simply because of the birth of their second child in France and the unilateral will of his mother to live there,
  • that the father had not allowed his wife to move with her children on French territory, but had only agreed to a one-time shift limited in time,
the Supreme Court approved the Court of Appeal to have "concluded that the non-return of children is illegal, according to Article 3 of the Hague Convention of 25 October 1980 on the Abduction International Child ".

Having also "pointed that:
- Both parents were able to provide children with education and decent living conditions, and
- The mother could not complain of any danger to his children, whereas she had actually placed them in emotional and moral danger in taking them away from their father,
the Supreme Court then approves the Court of Appeal 's decision that Article 13 b of the Convention should not be applied. "

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