Tuesday, September 08, 2015

Notes on Switzerland and International Child Abduction

Jeremy D. Morley*

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, arrĂȘt 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 Adults
as of 21  December 2007 (Status as of 1 July 2009)

Section 1: General Provisions
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.
Section 2: International Child Abduction
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.
Section 3: Final Provisions
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.