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The
Swiss Central Authority under the Hague Abduction Convention is the Federal
Office of Justice in Berne. The Convention entered in force in Switzerland on
January 1, 1984. The implementing legislation is the Federal Act of 21 December
2007 on International Child Abduction and the Hague Conventions on the
Protection of Children and Adults, which is set forth below.
Rights
of custody in Switzerland are attributed by operation of law in accordance with
Article 296 of the Swiss Civil Code, under which minors are under jointly
exercised parental care of their parents. The parents might be married or not,
but they have to be not less than 18 years old.
According to the current legal practice of the
Federal Supreme Court, the right of care over a child includes, in particular,
the right to determine the place in which the child lives. This means that the
parent with the (sole) right of care may, under normal circumstances, move
abroad with the child without the agreement of the other parent.
The
Federal Act provides, among other things, that applications for the return of
abducted children are processed by the Supreme Cantonal Courts; and that the
only right of appeal is to the Federal Supreme Court. It also provides for the
court to appoint a legal representative for the child, and it authorizes the
court to hear the child in person, unless its age or other good cause renders
this impractical.
The
Act contains measures to implement the basic principle applies that exhaustive
attempts should be made at helping parents to reach an amicable agreement by
themselves before court proceedings are initiated. The central authority may
therefore organize an international family mediation procedure before court
proceedings are initiated, provided no parent objects. Once the return
procedure has been initiated, mediation or a conciliation procedure is
mandatory. There is a network of institutions and specialists in Switzerland
qualified in conciliation and mediation, who may be called upon to assist.
A
highly controversial provision of the Federal Act is Section 5, which in my
opinion unnecessarily expands the scope of Article 13(b) of the Convention. See
my article entitled Swiss Law Undermines the Hague Convention. However, in a case rendered in 2012, 5A_479/2012,
IIe Cour de droit civil, arrêt du TF du 13 juillet 2012,the Federal Tribunal,
2nd Civil Tribunal, adopted a restrictive interpretation of Section 5.
The
case concerned three children who lived in Poland. A Warsaw court decreed the
parents' divorce and awarded them exercise of joint parental authority, with
the mother having physical custody of the children. On the same day, the
parents entered into an agreement on the ancillary effects of their divorce,
whereby the children would reside with their mother, and the father had
extensive rights of access, in particular in the first week and third weekend
of every month. The mother then left Poland with the children to live near her
father in Switzerland.
In
defense to the father's Hague application, the mother asserted that it would
create an intolerable situation if the children were returned to Poland. She
relied on Section 5 of the Swiss Federal Law, which provides that "owing
to its return, the child is placed in an intolerable situation within the
meaning of Article 13(1) b) Hague Convention 1980 in
particular when the following requirements are met: a. placement with the
applicant parent is manifestly inconsistent with the child's interest; b. the
abducting parent, in the circumstances, is unable to care for the child in the
State where the child had its habitual residence at the time of the removal, or
he or she manifestly cannot be required to do so; c. placement with third
parties is manifestly inconsistent with the child's interest."
The
appeal court refused to accept the mother's claims. It pointed out that the
exceptions to a return should be interpreted strictly, and that only grave
risks should be taken into account, exclusive of grounds connected with the
parents' educational abilities.
The
Tribunal held that the mother's submissions did not demonstrate how the
children's return to Poland could expose them to a grave risk of danger. The
children had spent only five months in Switzerland, the mother came from
Poland where she had lived from 2005 to 2012, and it was not proven that the
university training she was undergoing in Switzerland was unavailable in
Poland. In addition, even if she decided to remain in Switzerland, there was no
reason to conclude that placing the children with the father was manifestly
inconsistent with their interest.
Federal Act on International Child Abduction and
the Hague Conventions on the Protection of Children and Adultsas of 21 December 2007 (Status as of 1 July 2009)
Art. 1 Federal central authority
The
Federal Office of Justice ("the Office") is the federal central
authority in charge of implementing the conventions listed in the preamble.
The
Office shall perform the tasks set out in the 1980 Hague Convention and the
1980 European Convention.
Under
the 1996 and 2000 Hague Conventions, the Office's tasks shall be:
a.
To transmit communications from abroad to the cantonal central authority;
b.
to provide information on Swiss law and child protection services in
Switzerland to foreign authorities;
c.
to represent Switzerland before central authorities in other countries;
d.
to advise the cantonal central authorities on these conventions and to ensure
their application;
e.
to promote cooperation between cantonal central authorities, cooperation with
experts and institutions under Article 3 and with the central authorities of
Contracting States.
Art. 2 Cantonal central authorities
Each
canton shall designate a central authority responsible for implementation of
the 1996 and 2000 Hague Conventions.
Unless
Article 1 paragraph 3 stipulates otherwise, the cantonal central authorities
are responsible for the tasks given to central authorities by the Conventions.
The
cantonal central authorities or other authorities designated by the cantons
shall on request issue the certificates provided for in Article 40 paragraph 3
of the 1996 Hague Convention and in Article 38 paragraph 3 of the 2000 Hague
Convention.
Art. 3 Experts and institutions
The
federal central authority shall, in cooperation with the cantons, see to the
establishment of a network of experts and institutions that are in a position
to provide advice, to carry out conciliation or mediation, to represent
individual children, and that are capable of acting expeditiously.
The
federal central authority may entrust the tasks mentioned in paragraph 1 to a
private body, which it may pay by reimbursing the expenses incurred or at a
fixed rate.
Art. 4 Conciliation or mediation procedures
The
central authority may initiate a conciliation or mediation procedure in order
to obtain the voluntary return of the child or to facilitate an amicable
resolution.
The
central authority shall, in an appropriate manner, encourage the persons
concerned to participate in the conciliation or mediation procedure.
Art. 5 Return and best interests of the child
Under
Article 13 paragraph 1 letter b of the 1980 Hague Convention, the return of a
child places him or her in an intolerable situation where:
a.
placement with the parent who filed the application is manifestly not in the
child's best interests;
b.
the abducting parent is not, given all the circumstances, in a position to take
care of the child in the State where the child was habitually resident
immediately before the abduction or this cannot reasonably be required from
this parent; and
c.
placement in foster care is manifestly not in the child's best interests.
Art. 6 Protective measures
The
court dealing with the application for the return of the child shall decide, as
required, on the child's personal relations with his or her parents and order
the measures necessary to ensure his or her protection.
Where
the application for return has been received by the central authority, the
competent court may at the request of the central authority or any of the
parties order the appointment of a representative for the child, the
appointment of a guardian, or other protective measures even if the application
for return has not yet been received by the court.
Art. 7 Competent court
The
supreme court of the canton where a child is resident at the moment when the
application for return is lodged is the sole court competent to deal with
applications for return, including protective measures.
The
court may transfer the case to the supreme court of another canton if the
parties and the court in question consent.
Art. 8 Court procedure
The
court shall initiate conciliation or mediation procedures with a view to
obtaining the voluntary return of the child or to achieving an amicable
resolution if the central authority has not already done so.
When
conciliation or mediation does not result in an agreement leading to the
withdrawal of the application for return, the court shall decide using a
summary procedure.
The
court shall inform the central authority of the essential steps in the
procedure.
Art. 9 Hearing and representation of the child
As
far as possible, the court shall hear the parties in person.
The
court shall hear the child in an appropriate manner or appoint an expert to
carry out this hearing unless the age of the child or another valid reason
prevents this.
The
court shall order that the child be represented and designate as a
representative a person experienced in welfare and legal matters. This person
may file applications and lodge appeals.
Art. 10 International cooperation
The
court shall cooperate as required with the authorities of the state in which
the child had his or her habitual residence before abduction.
The
court, if necessary with the cooperation of the central authority, shall
satisfy itself whether and in what way it is possible to execute the decision
ordering the return of the child to the State in which he or she was habitually
resident before abduction.
Art. 11 Decision ordering the return of a child
The
decision ordering the return of a child must include instructions for its
execution and be communicated to the authority responsible for its execution
and to the central authority.
A
decision ordering the return of a child and the instructions for execution
apply throughout Swiss territory.
Art. 12 Execution of the decision
The
cantons shall designate a single authority responsible for executing the
decision.
The
authority shall take account of the best interests of the child and endeavour
to obtain the voluntary execution of the decision.
Art. 13 Amending the decision
The
court may, on request, modify the decision ordering the return of a child if
the circumstances that would preclude return change significantly.
The
court may also decide to discontinue execution proceedings.
Art. 14 Costs
Article
26 of the 1980 Hague Convention and Article 5 paragraph 3 of the 1980 European
Convention apply to the costs of the conciliation or mediation proceedings, the
court proceedings and the procedure for the execution of the decision at the
cantonal and federal levels.
Art. 15 Amendment of current law
Art. 16 Transitional provision
The
provisions of this Act relating to international child abduction also apply to
applications for the return of a child pending before the cantonal authorities
at the time when this Act enters into force.
Commencement
Date: 1 July 2009
* Jeremy D. Morley, an international family
lawyer and the author of the treatises "International Family Law Practice”
and “The Hague Abduction Convention,” is admitted to practice only in New York
and works collaboratively with local counsel as appropriate.
