SWITZERLAND – RAJARATNAM – 1988 (Return denied by lower court) (Return ordered on appeal)(Age of maturity) RAJARATNAM v RAJARATNAM. The mother took the two children to Switzerland. The father asked for the return of the children under the Hague Convention. The lower court denied the fathers petition bases on Article 13, Paragraph 2 (Age of Maturity). The father filed an appeal. The High Court reversed the lower court and ordered the return. The mother appeals to the Supreme Court of Appeals. The court dismissed the complaint on the merits.
===========================================================
Court: District Court of Horgen and the Supreme Court of Appealsof the Canton of Zurich.
Number:
Applicant: Henry Viljaya Rajaratnam
and
Respondent: Margrith Rajaratnam-Hertig
Date: 11 May 1988 and 19 Dec 1988
—————————————————————–
Summary of proceedings and partial English translations of the
following decisions prepared by Ms Annette Schild, in consultation
with Mr Volker Roben:
1 11 May 1988, District Court (Bezirksgericht) of Horgen
2 19 December 1988, Supreme Court of Appeals
(Kassationsgericht) of the Canton of Zurich
RAJARATNAM V. RAJARATNAM
Summary of the Proceedings
On 21 January 1988 Mrs Margrith Rajaratnam-Hertig took her two
children, Alexander Misha, born on 24 March 1974 (14 years of
age), and Natasha Ursula, born on 11 August 1975 (13 years of
age), from England to Switzerland. On 8 February she filed a
request with the judge of the Family Division of the District
Court of Horgen that, as a provisional measure, the children
should be placed under her care.
After summary proceedings, a provisional order granting her
application was issued (Order of the District Court of Horgen of 9
February 1988).
In an application to the District Court of Horgen, the father of
the children, Henry Vijaya Rajaratnam, represented by the Federal
Ministry of Justice as the Central Authority under Article 6 of
the Hague Convention on the Civil Aspects of International Child
Abduction, asked for the return of the children on the basis of
that Convention.
In order to decide on this case, the court first examined whether
the requirements for the application of the Convention under its
Articles 1, 3 and 4 were met.
The court stated that before their removal to Switzerland the
children were habitually resident in the United Kingdom, that the
plaintiff had exercised the rights of custody at least jointly
with the defendant, that neither of the children had attained the
age of 16 years and that therefore the Convention was applicable.
Since less than one year had elapsed from the date of the wrongful
removal, the court concluded that, according to Article 12 of the
Convention, the children would have to be returned, unless one of
the limited exceptions to that rule were applicable.
The court started its examination of the possible exceptions with
the one provided for in Art. 13(b), according to which judges are
not obliged to order the return of a child in case of grave risk
that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
position.
With regard to this point, the defendant had alleged that the
plaintiff was not able to care for the children properly and that
he did not even have the necessary financial means to support
them. Since the plaintiff produced evidence to the contrary and
the defendant did not offer clear proof of her allegations, the
judge decided that return of the children could not be rejected on
this ground.
It may be interesting to note in this context, that the court,
when stating that there was no sufficient proof of a risk to the
children, briefly mentioned that the account given by them with
regard to their situation in England might be an indication of the
contrary.
There was, however, no further examination of the question whether
and if at all to what extent a declaration of this kind should be
taken into account when evaluating the risk of potential harm for
the children.
The second exception examined by the court was the one in Article
13, paragraph 2, which allows the authorities to refuse the return
of a child if the child objects to being returned and has attained
an age and degree of maturity at which it is appropriate to take
account of its views. Since both children had said that they did
not want to return to their father, the court had to examine
whether they were mature enough and whether they had made their
decision freely and without being put under pressure by their
mother. After an examination of their statements, the court found
that since the children were able to understand the situation and
did not simply condemn everything their father did, there was
reason to assume that they were mature enough to decide where they
wanted to live. (For a translation of this part of the decision
see Annex 1.)
Therefore the court rejected the application of the plaintiff.
Mr Rajaratnam then filed an appeal from this judgment to the
Higher Court of the Kanton of Zurich, in which he requested that
the immediate return of the children to England should be ordered.
In its decision of 18 July 1988 the Higher Court granted the
application and annulled the decision under appeal. Furthermore,
it ordered the return of the children to their place of habitual
residence threatening execution and enforcement by means of an
administrative fine.
Mrs Rajaratnam attempted to challenge this decision by appealing
to the Federal Court. She alleged that the court below in making
its decision had violated her constitutional rights.
The Federal Court, however, did not go into the merits and
dismissed the case on the ground that Mrs Rajaratnam had not yet
exhausted all stages of appeal available to her on the level of
the Kanton.
Thereupon, on 12 December 1988, Mrs Rajaratnam filed an appeal
with the Supreme Court of Appeals (Cour de Cassation) of the
Kanton of Zurich. The Supreme Court of Appeals, which could only
review the decision of the court below with regard to the question
whether it had made any serious mistakes in applying the law but
could not reconsider the factual basis for the decision, dismissed
the complaint on the merits. (For a translation of the decision
see Annex 2.)
Mrs Rajaratnam then lodged another constitutional complaint to the
Federal Court, requesting that her appeal should be given
suspensive effect. Mrs Rajaratnam demanded dismissal of her
request.
In its decision of 9 February 1989 the Federal Court dismissed the
action. In the reasons given for the judgment, the court explained
that Mrs Rajaratnam had not sufficiently demonstrated in what
respect her constitutional rights had been violated by the
decision of the Supreme Court of Appeals.
The application of Mrs Rajaratnam to grant her reconsideration was
rejected on 14 February 1989.
ANNEX 1
DECISION OF THE DISTRICT COURT OF HORGEN, P. 13 DD)
OBJECTION OF THE CHILDREN TO BEING RETURNED
The court can reject the return of a child if it has been
established that the child objects to being returned and has
attained an age and degree of maturity at which it is appropriate
to take account of its views (Article 13, paragraph 2, of the
Hague Convention).
On application of the defendant the court has ordered the children
to be interviewed by Mrs E. Bohren, social worker at the youth
welfare office of Horgen. The children described their
relationship to their father as being bad. They said that the
relationship had deteriorated increasingly during the last two
years. The situation had been different when the children were
younger and their father had still been employed. The children
reported a conflict between their parents which had arisen about
two years ago at the time when their mother fell ill. Their father
had had no time to talk to them. He had been increasingly
unbalanced and had lost control of himself when dealing with the
children and their mother. He had chastised Misha and had blamed
the children and followed them from room to room with his
“speeches”. The children had had to look after their mother to an
increasing extent; the father had felt less and less capable of
doing so and had left the house ever more frequently. Both
children said that they did not want to have direct contact with
their father at this point but that they would answer his letters.
They did not want to see him in the near future neither here nor
in England. Natasha in particular was very much afraid of him and
feared his explosive temper. Misha did not feel as bad as his
sister about taking up contact with his father at a later point if
his father were to be friendly and poised again. He did, however,
not want to return to England at present.
It may be asked whether the children have attained an age and
degree of maturity at which it is appropriate to take account of
their views (Article 13, paragraph 2, of the Hague Convention).
The Convention is applicable to any child who has not yet attained
the age of 16 years (Article 4). It can therefore be concluded
that children under 16 years of age can attain the necessary
degree of maturity.
Misha and Natasha are children aged 14 and 12 1/2 years; thus
their opinions should be taken into account.
The plaintiff regards the statements of the children as they have
been reported by the youth welfare office as mere “inventions” in
particular in regard to the relationship between father and
children and the return of the children to England. He considers
it evident that the children must have been “convinced” to a very
large extent in order to make such statements. He cannot
understand how they could have made such statements. The report of
the youth welfare office is unfair and its content can be
explained partially by the fact that the children are close to
their dying mother.
When shown the letters of the children in which they express that
they do not want to return to England, the plaintiff asserts that
the children must have been forced to write this and that these
could not possibly be the words of the children (… that they
could not possibly have said this).
It may be pointed out that the children are – as mentioned above –
14 and 12 1/2 years old and therefore able to form their own
opinions. On the other hand, it must be taken into consideration
that children can generally be influenced much more easily than
adults. (Article 13, paragraph 2, was adopted with consciousness
of the fact that younger children in particular could be subject
to influence; see A.E. Anton, “The Hague Convention on
International Child Abduction” in the International and
Comparative Law Quarterly, July 1981, p- 550 below: WMH FN 01
“The second exception arises where the court finds that the child
objects to being returned, and has attained an age and degree of
maturity at which it is appropriate to take account of its views
(Article 13, paragraph 2): This last rule, although criticized by
certain delegates by reason of the vulnerability to pressure of
young children, is little more than a corollary of the fact that
the Convention applies to children up to the age of 16.”) The
report of the youth welfare office of Horgen shows that the
children do not simply describe their father as a “bad person” but
that they also see and mention his positive sides. Mrs Bohren,
social worker at the youth welfare office, characterizes the
children as being open-minded and realistic.
Under these circumstances it cannot simply be said that the
children must have been “influenced” or “forced” to comment on
their situation in a particular way. It may be left open whether
and to what extent the proximity of their mother’s death has
strengthened the desire of the children to be with her at this
time. At all events, both the report of the youth welfare office
of Horgen and the letter of the children show unequivocally that
the children – at least for the time being – object to being
returned to England.
It may be concluded that today both children refuse to return to
England, i.e. that they object to being returned within the
meaning of Article 13, paragraph 2, of the Hague Convention.
Therefore, the action is dismissed.
ANNEX 2
DECISION OF THE SUPREME COURT OF APPEALS (COUR DE CASSATION), P.7
FF
III.
1 The appellant (Mrs Rajaratnam) asserts that the instance
below has violated substantive law and that therefore the
conditions for the ground for nullity in S 281, Section 3 of the
Code of Civil Procedure of the Kanton of Zurich have been met.
The requirements of the ground for nullity in 281, Section 3 are
fulfilled only if the reasoning of the instance below is under no
circumstances legally justifiable; the Supreme Court of Appeals
may, however, not examine whether it considers the decision as
correct and would have decided in the same way. (Cf. von
Rechenberg, Nichtigkeitsbeschwerde, 2nd ed. Zurich 1986, p. 28.)
2 The prior objective of the here-applicable Convention on the
Civil Aspects of International Child Abduction is to guarantee
that in the case where a child has been wrongfully removed or
retained (Article 3) the custodial situation as it existed before
the abduction is restored as quickly as possible. Therefore, when
deciding that a child that has been abducted should be returned as
quickly as possible, it is not the decision on the merits of a
possible custody dispute that is at stake (cf. Article 1, Article
16 and Article 19 of the Convention; cf. furthermore Chr. Bohmer,
“Die 14. Haager Konferenz uber internationales Privatrecht” 1980,
in Rabels Zeitschrift 46 [1982], p. 646 and 651; B. Deschenaux,
“Internationale Kindesentfuhrungen und Mittel ihnen zu begegnen”,
in: Zeitschrift fur Vormunschaftswesen 40 [1985], p.44.)
Questions as to the merits are left to be decided by the courts of
the State of the former habitual residence of the child (A.E.
Anton, “The Hague Convention of International Child Abduction”,
in: The International and Comparative Law Quarterly, London 1981,
Vol. 30, p. 553.)
3 Article 12 of the Convention stipulates that the authority
concerned must, as a matter of principle, order the immediate
return of any child that has been wrongfully removed or retained.
In this context, Mrs Rajaratnam urges that both instances below
have violated clear law by assuming the wrongfulness of the
removal in the meaning of Article 12 of the Convention without
truly deciding on questions of substantive law. In support of this
assertion, Mrs Rajaratnam quoted a publication of the Federal
Ministry of Justice: “Analysis of the answers received on the
questionnaire of 18 July 1983”, according to which in cases where
custody is exercised jointly, “a substantive decision on the
wrongfulness” is necessary.
According to Article 3 of the Convention the removal or the
retention of a child is to be considered wrongful if it is in
breach of custody attributed to a person, an institution or any
other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the
removal or retention and if at the time of removal or retention
those rights were actually exercised either jointly or alone.
Article 5 clarifies that for the purposes of the Convention
“rights of custody” include rights relating to the care of the
person of the child and, in particular, the right to determine the
child’s place of residence.
Since Article 3 determines unmistakably under which circumstances
wrongfulness can be assumed under the Convention, the case at hand
in which custody is exercised jointly – like any other case –
merely requires the direct application of the respective
provisions of the Convention. Therefore, no preliminary
“substantive decision” on the wrongfulness of the removal is
necessary. If a like decision were to be required, the meaning and
purpose of the Convention would be counteracted, since the main
objective of the Convention is to guarantee the speedy return of
the child. Correspondingly, Article 3 of the Convention merely
requires that custody is exercised effectively. It is not
necessary that in the State in which the child was habitually
resident [render] a decision on the right of custody has been made
(cf. also B. Deschenaux, op. cit., p. 45).
Both instances below have ascertained that the conditions for a
return of the children as set forth in Article 3 of the Convention
are fulfilled. Rightly they have concluded that Mrs Rajaratnam has
violated the right of custody – as in of Article 5 of the
Convention – of her husband by taking the children to Switzerland
without his approval. This act is, as the instances below point
out correctly, wrongful, because according to the relevant English
legislation the right of custody belongs to both parties jointly
and had been exercised by them jointly in the past.
Since the instances below have not violated the law, the
application is unfounded with regard to this point.
4 The next argument advanced by the appellant in order to prove
the nullity of the decision of the Higher Court concerns Article
17 of the Convention. According to this provision the sole fact
that a decision relating to custody has been given in or is
entitled to recognition in the requested State is no ground for
refusal to return a child under the Convention; the judicial or
administrative authorities of the requested State may, however,
take account of the reasons for that decision in applying the
Convention.
Mrs Rajaratnam is of the opinion that the instance below has
violated clear substantive law when it says that the decision of
the judge of the Family Division of the District Court of Horgen
of 2 February 1988 is of no importance for its decision. She
states that the instance below even refers to Article 17, but that
it ignores the part of the sentence in which it is said that “the
courts … of the requested State … may take account of the
reasons for the decision in applying the Convention.”
Since a super-provisional measure with respect to custody is
granted only if a prima facie case has been established, the judge
of the instance below could have taken into account the reasons
for the decision (Articles 17 and 13, paragraph 1, lit. b of the
Convention). The appellant concludes that the instance below in
its reasoning infringed upon the competence of the court of first
instance to decide what would be beneficial to the child, and that
this was inconsistent with its findings which affirmed such a
competence.
The argument advanced by the appellant concerning the discussion
of Article 17 by the instance below is manifestly unfounded. In
particular, she at first ignores the fact that according to this
provision the courts of the requested State may take account of a
decision that has been made relating to custody in the requested
State, but that they do not have to follow its reasoning.
Therefore, the super-provisional measure of the judge of the
Family Division of the District Court of Horgen of 9 February 1988
in and by itself is no reason for a refusal to return the
children. In the course of her argument, Mrs Rajaratnam correctly
sees that the judge may only take into account the reasons which
have led to the provisional measure relating to custody. Since she
does not speak of an “obligation”, she implicitly retracts her
statement that the instance below has violated clear substantive
law.
It is not possible to see an intrusion into the competences of the
court of first instance in the approach of the instance below.
Article 17 of the Convention leaves it up to the court to decide
whether it wants to take into account the matrimonial proceeding
or not.
Since the judge sitting alone in the summary proceedings before
the District Court of Horgen had stated in his order of 11 March
1988 that Mrs Rajaratnam could not derive any arguments in her
favour from the provisional order of the judge of the Family
Division of the District Court of Horgen because the order had
been provisional and had been issued without hearing the opposing
party, the instance below cannot with regard to this question have
been inconsistent with the findings of the first instance.
Therefore, the complaint of Mrs Rajaratnam concerning this
question is unfounded too.
5 Article 13, paragraph 2, according to which the judicial or
administrative authority may refuse “to order the return of the
child if it finds that the child objects to being returned and has
attained an age and degree of maturity at which it is appropriate
to take account of its views,” must, in the opinion of the Higher
Court, also be interpreted in the light of the purpose of the
Convention; this must be done although Article 13, paragraph 2,
contains an exception to the rule of Article 12, according to
which as a matter of principle the return of the child must be
ordered. Following this reasoning and considering the opinion of
Bohmer (op. cit. p. 649), who, in cases of doubt, opts for the
return of the children, the instance below concludes that
compelling reasons must be produced against the return of the
children.
The appellant rejects this interpretation of Article 13, paragraph
2, of the Convention by saying that, since the wording of Article
13, paragraph 1, lit. b, “does not contain a precise definition,
there is no room for requiring a compelling reason”. “Since
furthermore Article 13, paragraph 2, of the Convention leaves a
margin of discretion, which the judge of first instance has used
correctly, the interpretation made by the instance below (page 6
at the bottom) is a violation of the Convention because it negates
the options in Article 13 from a legal point of view (and not
their application on the case at hand).”
Apparently Mrs Rajaratnam wants to point out that in default of a
“precise definition” in Article 13, paragraph 1, lit. b, and in
view of the margin of discretion left in Article 13, paragraph 2
the instance below with its interpretation as mentioned above has
violated clear substantive law. To put it differently, the
question arises as to whether the instance below has violated
clear substantive law and thus fulfilled the ground for nullity of
S 281, sentence 3 ZPO when it argued that in its opinion
compelling reasons must be advanced against the return.
Rightly, the Higher Court in interpreting the reasons for refusal
in the meaning of Article 13, paragraphs 1 and 2 refers to the
principle laid down in Article 12, according to which, if the
period between wrongful removal and the commencement of the
proceedings amounts to less than one year, the court has to order
the immediate return of the child. As Bohmer points out this
interpretation does not neglect the best interests of the child.
The author correctly paraphrases the principle laid down in
Article 12, paragraph 1 of the Convention as follows: “Article 12
is based on the conception that usually the return of the child
within one year is not detrimental to the child because he or she
is still used to his or her prior environment. In case the
repeated change of environment does present difficulties to the
child, these will in general be of lesser weight than the
violation of the right of custody of the applicant” (Bohmer loc.
cit. p. 649). This explains also why when applying the test of
Article 12, paragraph 1, of the Convention there is no need for a
closer examination of the situation of the child and of the
question as to whether he or she has become accustomed to his or
her new environment (cf. Bohmer, loc. cit. p. 649).
In view of this principle which gives the former holder of the
right of custody a right to the immediate return of the child
against the abductor, a narrow interpretation of the reasons for
refusal in the meaning of Article 13, paragraphs 1 and 2, is very
well defensible. Since – as mentioned above – the Hague Convention
intends to guarantee that the child is returned as quickly as
possible, the decision on this question must not be equated with
an examination of the right of custody. Therefore, the instance
below is justified in saying that in case of doubt the return
should be ordered and that in any case no investigation should be
entered into. If the instance below goes on arguing that the
report of the youth welfare office of Horgen would be relevant
only to the extent that it showed compelling reasons for rejecting
the return, this opinion is defensible. By arguing so, the
instance below certainly does not violate clear substantive law.
This is even less so since the provision applied by the instance
below (Article 13, paragraph 2 of the Convention) leaves a margin
of discretion.
6 a) The appellant further argues that contrary to the opinion
of the instance below the statements of the children quoted in the
report of the youth welfare office of Horgen, according to which
their situation at home was chaotic and their father was
unbalanced and lost control of himself and they had had to care
for their mother and run the home, were decisive indeed. By
deciding in spite of the above-mentioned statements that there was
no risk of harm to the children, the instance below had decided
contrary to the record and arbitrarily. Furthermore, the decision
of the instance below is contrary to the record and arbitrary also
because it does not mention “any objective circumstances” which
would contradict the assertion that the children had to fear being
placed in an intolerable situation.
b) First of all it is necessary to explain the following: a
conclusion is contrary to the record if it reproduces the content
of the files incorrectly; it is arbitrary if the correctly
reproduced content of the files has been evaluated in an evidently
incorrect way (cf. von Rechenberg, Nichtigkeitsbeschwerde, 2nd ed.
Zurich 1986, pp. 27 f). Taking these definitions into account, it
becomes obvious that Mrs Rajaratnam’s complaint that the decision
of the instance below was contrary to the record is unfounded. It
remains to be considered whether the assessment of the instance
below was arbitrary.
c) Under paragraph 4.2 of the challenged decision the
instance below examines some “complementary considerations with
regard to the best interest of the children”. These considerations
are made in connection with Article 13, paragraph 2, of the
Convention when discussing the relevance of the desire of the
children to remain in Switzerland. The deliberations of the
instance below are not of a factual but of a legal nature as can
be seen by the fact that the following conclusions are drawn from
the statements of the children: The circumstances described by the
children do not in and by themselves preclude their return and
they do not fully explain the refusal of the children to return to
England and therefore they may be set aside (or, in another
passage: “all the reasons given do not prove the risk of potential
harm to the children in case of their return”).
Although it does not expressly refer to it, the instance below
under its above mentioned title “complementary considerations with
regard to the best interests of the children” takes into account
Article 13, paragraph 1, lit. b of the Convention. It does, in any
case, not violate clear substantive law when deciding that the
circumstances described do not preclude a return of the children.
Therefore, the complaint of Mrs Rajaratnam – which incorrectly has
been made under the heading of a decision that is contrary to the
record and arbitrary – is unfounded.
Contrary to the opinion of the appellant this interpretation of
the instance below is not inconsistent with the decision of the
first instance. Since, as mentioned above, the evaluation of the
instance below is defensible, the further complaint of Mrs
Rajaratnam that the instance below sets requirements for the proof
of a risk which “in a summary proceeding can – except in very rare
exceptional circumstances – never be fulfilled”, does not have to
be discussed.
Mrs Rajaratnam’s assertion that her arguments and those of the
first instance based on the report of the children are credible
and “in accordance with Swiss conceptions with regard to the
protection of children” is also not to be considered. It remains
unclear in any case in what respect “the instance below has
violated Swiss ordre public while the first instance in accordance
with Mrs Rajaratnam has evaluated the situation correctly.”
7 a) After a thorough examination of the wish of the children
to remain in Switzerland, the instance below arrived at the
conclusion that the circumstances justify disregarding the wish of
the children in favour of objective facts and that therefore they
should be returned.
Mrs Rajaratnam considers these conclusions as being contrary to
the record and a violation of clear law. She maintains that the
reasoning of the instance below “that the statements of the
children are not relevant in this context” gives evidence of a
misinterpretation of the literature and disregards even the
statement of Mrs Rajaratnam according to which the children are
exceptionally intelligent. Furthermore, the appellant complains
that the instance below argues abstractly and never substantiates
why the children should be too young and immature.
b) Obviously, the objections made by Mrs Rajaratnam under
this title are not contrary to the record either. Therefore it
merely remains to be examined whether the evaluation of the facts
by the instance below is defensible or not.
c) After a close study of the literature quoted by the
instance below it becomes clear that a misinterpretation by the
instance below is out of the question. In particular, the author
quoted by the higher court with regard to Article 13, paragraph 2,
of the Convention does not fail to express himself with the
necessary clarity when he writes: “L’autorite requise devra,
lorsque les circonssances le justifient, demander son avis a
l’enfanc lui-meme et, si elle peut prendre en consideration cet
avis, pourra refuser de le renvoyer lorsqu’il s’y oppose
resolument” (“The requested authority must, if the circumstances
so justify, ask the child for his or her opinion and can, if that
opinion can be taken into consideration, refuse to return the
child if he or she objects strongly.” B. Deschenaux, “La
Convention de La Haye sur les aspects civils de l’enlevement
international d’enfants”, in Schweizerisches Jahrbuch fur
internationales Recht 37 [1981], p. 125).
In consideration of the authors quoted the instance below
correctly concluded that the wish of the child is not binding on
the courts and that this is all the more the case if a child due
to its age or for emotional reasons cannot form an unbiased
judgment. This is also why Article 13, paragraph 2, of the
Convention leaves the decision to the court’s discretion whether
it wants to comply with the child’s wish (“… may refuse to order
the return of the child …”).
Contrary to the opinion of Mrs Rajaratnam the instance below is
right if it does not take into consideration the “exceptional
intelligence” of the children. Instead, the instance below
examines the emotional situation of the children and concludes in
a defensible manner that the reasons advanced by the children
exclusively concern the insufficiencies in housekeeping and the
psychological problems due to the absence of their mother from the
household and to her illness. It is also defensible to argue, as
the instance below has done, that the circumstances mentioned
above caused trouble both to the children and their father and
that they explain plausibly most of the children’s reproaches
against their father.
Furthermore, the instance below correctly takes into account the
fact that at the time of the interview the children had not seen
their father for more than 2 months and since that time been
exclusively in contact with their mother and her relatives. The
instance below correctly assumes that this factor is relevant to
the desire of the children not to take up contact with their
father.
Considering this evaluation it becomes clear that for the decision
of the instance below the evaluation of the circumstances
mentioned and not the maturity of the children was decisive. Mrs
Rajaratnam seems to misunderstand this fact if she asserts that
the instance below is not able to explain “why exactly the
children are supposed to be too young and immature”. Besides, Mrs
Rajaratnam seems to overlook that the instance below does not
dispute her son’s maturity.
The fact that the instance below is very cautious when considering
the letters of the children is justified in view of the
formulations used in these letters.
Thus, it can be said that the instance below has neither abused
nor exceeded the discretion left in Article 13, paragraph 2 of the
Convention.
——————–
1. Available on Hilton House BBS as ANTON.ART