SWITZERLAND – VIOLA – 1990 (Return denied) Viola v Viola. The mother took the child to Switzerland for a visit. The father was to follow at a later date. While in Switzerland, and before the father arrived, the mother filed for divorce. The father informs the court of his intention to apply for the return of the child under the Hague Convention. The trial court denied the fathers application for return. An appeal was filed against this decision. The appeals court denied the return. “A return of the child at present time would be connected with the serious danger of physical or mental damage for the child”.
===========================================================
[SYSOP NOTE: This is the “Trial Court” decision in this matter,with comments by the SYSOP in footnotes.]
=====================[Start of Decision]========================
LUCERNE — TOWN DISTRICT COURT
02 90 51/308
President II
Decision of 20 Feb 1990
in the case of
Applicant No. 1:
Lucien Viola, 76 West 82nd Street, New York, New York, 10024,
USA, represented by Attorney Dr. iur. Franz Keller,
Luzernerstrasse 51A, 6010 Kriens.
Applicant No. 2:
Swiss Department of Justice and Police,Federal Agency for
Justice, 3003 Berne, represented by Bernhard Deschenaux.
versus
Respondent:
Carmen Viola – Perlungher, Gesegnetmattstrasse 16, 6006 Lucerne,
represented by Attorney Dr. Mark Kurmann, Schweizerhofquai 2,
6004 Lucerne.
with regard to order proceedings in accordance with Section 348,
para. 1, No. 1, Code of Civil Proceedings, for the provisional
enforcement of the immediate return of a child (Hague Convention
on the Civil Aspects of International Child Abduction)
Facts of the Case
A. Lucien Viola and Carmen Viola married in New York on 25
Jun 1988, where they had already lived before that. On 09 Oct
1989 Carmen Viola gave birth to the child Philippe Adrien. On 12
Dec 1989 Carmen Viola flew to Switzerland with the child and went
to her parents in Lucerne. The Violas had decided to spend the
Christmas holidays with the parents of Carmen Viola. But Carmen
Viola decided to initiate divorce proceedings here in Switzerland
before the arrival of her husband in Lucerne, which was planned
for 20 Dec 1989. A corresponding plaint, a request for the issue
of provisional measures and a request for the summons of the
married couple for the legally prescribed attempt at
reconciliation were received by Lucerne — Town District Court on
19 Dec 1989.
B. In a letter of 27 Dec 1989 Lucien Viola had information
sent to the Lucerne — Town District Court, to which his wife had
made her application, that he would, on the basis of The
Convention on the Civil Aspects of International Child Abduction,
done at the Hague on 25 Oct 1980 (Convention) (SR 0.211.230.02),
apply for immediate return or recovery of the child Philippe
Adrien to New York (USA). A decision about the parental care of
the child can temporarily not be made due to Art. 16 of the
Convention mentioned. In his application of 08 Jan 1990, Lucien
Viola made the following applications:
1. Carmen Viola is to be instructed to return Philippe Adrien
Viola, born 09 Oct 1989, immediately to Mr. Lucien Viola,
76 West 82nd Street, New York, New York, 10024.
2. Possibly Carmen Viola is to be instructed to return
Philippe Adrien Viola, born 09 Oct 1990, immediately to
the state of New York or have her returned there.
3. In case of omission, the applicant is to be entitled to
make use of the help of the police.
4. With decision concerning costs and reimbursement to the
account of the respondent.
As a substantiation, he basically stated that the preconditions
of the Convention (Art. 3) are fulfilled. The retaining of the
child Philippe Adrien in Switzerland contravenes Lucien Viola’s
parental care for the child, which he exercised together with
Carmen Viola and according to the law of the USA. On 10 Jan 1990
the Federal Agency for Justice (Central Authority dealing with
international child abductions), based on a corresponding
application by Lucien Viola, made a basically identical
application for immediate return of the child Philippe Adrien to
her normal place of residence in the USA.
In a statement of 29 Jan 1990 Carmen Viola expressed her opinion
on this matter and had an application made for rejection of the
legal request with decision as to the costs to the account of the
applicants. Inter alia,she stated that she had taken the child
to Switzerland with the consent of Lucien Viola, for which reason
it had not been brought here illegally. The retention of the
child in Lucerne was also not illegal, because following pendence
of the divorce plaint, which had already existed before the point
in time of any retention of the child Philippe by Carmen Viola,
it was not longer Lucien Viola, but solely the judge responsible
who has to decide on the parental care for Philippe. Further,
the return of the child cannot be ordered, because this would be
combined with physical and mental damage to the child and would
put her into an unreasonable position, the latter because the
applicant would have to have Philippe looked after by third
parties during his absences due to work. FN1
Considerations
1. The Lucerne Code of Civil Proceedings does not contain any
specific directive concerning the factual responsibility for the
decision on the legal application made. But as Art 7 of the
Convention expressly mentions, alongside the Central Authority,
which is the Federal Agency for Justice in Switzerland,
responsible authorities in the individual states of a nation, and
as Art. 11 and 12 of the convention primarily mention the Court
of the state in which the child is being responsible, there can
be no doubt that the District Court Lucerne — Town, to which the
application has been made, is to be considered the locally
responsible instance. It can however also be seen from Art. 10
of the Convention and especially from the decision of the Upper
Court in Zurich of 19 Dec 1988, published in the SJZ 1990, pp.
46f., that in accordance with Swiss law, Courts of law and not
administrative authorities of the Central Authority of the State
applied to are responsible in the matter itself. The matter
itself makes the use of order proceedings in accordance with
section 348, para. 1, No. 1, Code of Civil Proceedings, obvious
for handling of clear legal matters in accordance with the
Lucerne code of Civil Proceedings. These proceedings serve
provisional enforcement, whereby summary decision proceedings
precede the decision to be made. The President of the District
is thus functionally responsible (Section 348, para.2, Code of
Civil Proceedings). As all proceedings in the area of personal
and family law are allocated to Department II in accordance with
Section, para.2 of the Council Decision concerning the
organization of Lucerne — Town District Court, it appears
correct to consider President II as responsible in analogous
application of the practice for enforcement proceedings and thus
contrary to the actual text of Section 10, para. 2 of the Council
Decision mentioned.
2. As the following considerations will show, no further
evidence is necessary except the documents already in the files.
3. It may well be true that Lucien Viola exercised the
parental care for Philippe together with his wife in accordance
with the law of the United States (cf. Bergman/Ferid,
International Marriage and Child Law, Vol. IX, USA, 39th edition,
p. 33), just as this would be the case in Switzerland. It may
also be true that Lucien Viola would also have wished to exercise
his split parental care together with the mother of the child, if
the latter had not retained the child in Lucerne, so that
fundamentally the preconditions in accordance with Art. 3 of the
Convention are to be considered fulfilled. As no decision has
yet been passed by a Judge concerning the custody or parental
care for Philippe and will probably not be made before the
decision is made in these proceedings (Art. 16 of the
Convention), Philippe would have to be taken back to New York
without agreement between the parties, in so far as Art. 13 of
the Convention is not applicable. The corresponding directive
rules out the ordering of the return or recovery of a child inter
alia if it would involve serious danger for the physical or
mental health of the same or would put it into an unreasonable
position in any other way. FN2 At present, Philippe is a baby
of the age of around 4 1/2 months. Regardless of whether the
respondent is still breast-feeding the child at the moment or
not,no analysis by an expert or further evidence from the mother
of the child and respondent is necessary to show that Philippe
could be seriously endangered if she were separated from her from
a long time. FN3 The strong professional claims of the
applicant outside the house, but also the fact that the mother of
the child has been living here in Switzerland, separated from the
father, since 12 Dec 1989, only a few weeks after giving birth to
the child, should further have intensified the mother/child
relationship in this case quite considerably. Responsibility
therefore cannot be taken, from the point of view of the interest
of the child, for Philippe being returned to the USA and being
looked after there by people who are mainly unknown to her. FN4
4. As Switzerland has made no corresponding reservations to
the ratification of the Convention, no official costs of
proceedings may be charged in accordance with Art. 26, para. 2 of
the Convention. Lucien Viola, who has lost, further has to bear
the party’s and attorney’s costs of Carmen Viola.
Judgment
1. The application is rejected.
2. No official costs are charged. The party’s and attorney’s
costs, to be paid to Lucien Viola by Lucien Viola are set by
discretion at a lump sum of Fr. 800.
3. This decision is to be served on the parties.
Instruction as to Rights
An appeal can be made against this decision. The appeal is to be
submitted to the Senior Court of the Canton of Lucerne in
duplicate in writing and with substantiation.
LUCERNE — TOWN DISTRICT COURT
President II pp. (Signature)
The Clerk of the Court (Signature)
Official Seal of the Lucerne — Town District Court.
=====================[End of Decision]==========================
[SYSOP NOTE: An appeal was filed against the above decision.
Following is the appeal brief on behalf of Lucien Viola, the
appellant.]
=======================[Start of Appeal Brief]==================
DR. IUR. FRANZ KELLER
Attorney and Notary Public
Luzernerstrasse 51 A
6010 Kriens/Lucerne March 2, 1990/4099/ke
To the
Senior Court of the Canton of
Lucerne
Hirschgraben 16
P.O. Box
6000 Lucerne
APPEAL
for
Lucien Viola, 76 West 82nd Street, New York, New York 10024, USA,
represented by the Attorney signatory,
appealant/applicant No. 1
versus
Carmen Viola-Perlungher, at present Gesegnetmattstrasse 16, 6006
Lucerne, represented by Attorney Dr. Mark Kurmann,
Schweizerhofquai 2, 6004 Lucerne,
respondent/defendant
on account of
order proceedings in accordance with Section 348, para. 1, No. 1,
Code of Civil Proceedings, for the provisional enforcement of the
immediate return of a child (The Convention on the Civil Aspects
of International Child Abduction, done at the Hague on 25 Oct 1980
[Convention])
Dear Mr President,
Dear Senior Judges,
On behalf of and under attorney to the appealant, I make the
following
applications:
1. The decision made by Lucerne — Town county court President
II on February 20, 1990, be rescinded.
2. The respondent be instructed to return Philippe Adrien Viola,
born on October 9, 1989, to Lucien Viola, 76 West 82nd Street, New
York, New York 10024, immediately.
3. Possibly the respondent be instructed to return Philippe
Adrien Viola, born on October 9, 1989, to the State of New York,
United States, or to have him returned thereimmediately.
4. In case of omission, the appealant be entitled to make use of
the help of the police.
5. With decision concerning costs and reimbursement to the
account of the respondent.
Substantiation:
I. Formal matters
1. The decision of Lucerne-Town County Court President II which
is being contested was received by the appealant on 23 Feb
1990. The 10-day appeal period in accordance with Section
255, para. 2, Code of Civil Proceedings, is therefore adhered
to with this submission.
Evidence: document: annex 1: Decision of Lucerne-Town
County Court President II 20
Feb 1990 incl. service
envelope.
2. The Solicitor signatory has a power of attorney.
Evidence: document: Power of attorney of 21 Dec
1989, in the files
II. Material matters
3. In the matter of facts stated in the previous instance, the
correction must be made that the respondent did not make the
decision to submit an application for divorce only when she
was in Lucerne. As we were able to find out afterwards, the
whole action was meticulously planned (issue of a new
passport with a photograph of the son one day before leaving
New York, possession of all documents and papers to do with
the son, immediate report to the office of Population Control
in Lucerne, immediate sub-mission of the plaint for divorce
etc.).
Further, it is allegedly not correct that the respondent has
found residence at present with her parents, but with her
divorced mother and her companion.
4. The previous instance has correctly established that the
preconditions of Art. 3 of the Hague Convention are
fulfilled. It must be added that alongside the illegal
retention even an illegal abduction is to be considered, as
the consent of the appealant to the journey to Switzerland
referred to other circumstances (traveling on to — Germany,
return to New York), which were subsequently ignored by the
respondent or which she had not intended to adhere to from
the very begining.
5. In the application of the Hague convention, it is of no
importance whether a decision concerning the parental care of
the child has already been made (cf. Art. 17 of the
Cgnvention). The Convention then only intends a restitutio in
integrum, without prejudicing a decision about parental care
(Art. 19).
6. Now that if has beenestablished that the preconditions for
the return of the child Philippe Adrien Viola exist due to
fulfilment of Art. 3, the directive of Art. 12 is to be
checked.
This Art. 12 regulates the enforcement of the Convention and
distinguishes on the one hand a case in which the application
for return is made within one year after the transportation
or retention and on the other hand a case in which the
application is made later.
In this case, it is undisputed that the application for
return has been made within the period of one year.
In accordance with the directive of Art. 12, the only
possible consequence is the ordering of the immediate return
of the illegarly retained child.
7. Basically, the previous instance substantiates its rejection
wholly and completely with the directive of Art. 13(b) of the
Convention.
This directive provides that the court is not obliged to
order the return if the respondent in this case proves that
the return is connected with the serious danger of physical
or mental damage to the child or brings the child into an
unreasonable position in any other way.
8. The previous instance agrees to the serious danger for the
child in the case of a return within the meaning of the
Convention (as a result of a separation from the mother),
ignoring the meaning of Art. 13 and using personal estimation
of medical/physiological contexts.
9. Art. 13 is however in no way applicable in this case for the
following reasons:
9.1 Art. 4 of the Convention provides that its directives are to
be applied to all children who have not yet reached 16 years
of age.
Accordingly, no restriction of age in a downward direction
has been established.
The lack of a minimum restriction is not chance, but
intentional. It also corresponds to practice that it is
mainly small children who are affected by abduction by one of
the parents.
If one wished to assume that (any possible) separation of a
small child from its mother (ignoring the fact that an
intensive relationship to the father can also exist) fulfils
the state of affairs of Art. 13, i.e. means a serious threat
for the child, then there would most certainly have been a
lower age limit for the applicaton of the Convention, indeed
this would have had to be made. (Because the Convention aims
to establish indications which are as definite as possible
and restrict free interpretation by the respective Courts; cf
especially the period of one year in Art. l2).
It must he added that in this case, completely normal
circumstances exist (within the meaning of the convention),
because the mother is retaining the joint child. There are no
kind of extraordinary circumstances which would make
application of Art. 13 obvious.
9.2 In the application of Art. 13, it is not a question of
establishing the interests of the child and of weighing up
these interests against one another with regard to the
parents, such as this is done in the allocation of children
in proceedings for divorce of marriage. Art. 13 merely
releases the judge from the obligation contained in Art. 12
of ordering the return, if extraordinary circumstances
endanger the well-being are no extraordinary circumstances at
all in this case.
However, the previous instance appears to be weighing up the
interests of the child, because it can be read from the
statements that they consider it to be better for the child
if it is with its mother in Lucerne than if it had to go back
to New York.
9.3. One of the few prejudices for the application of Art. 13 is
partly published in SJZ 1990, p.46 and comes from the Senior
Court of Appeal of the Canton of Zurich. In this decision,
the above statements concerning application of Arts. 12 and
13 are quite clearly confirmed in the context of the
assessment of the interests of the child.
The interest of the child is also taken into consideration in
Art. 12, wl;ich provides the period of one — year as the
limitation within which the child is to is to be taken to the
place of usual abode without further clearing up. Further,
reference is made to the fact that the Convention also
pursues the purpose of preventing the partner to the marriage
who is breaking the law from gaining legal advantages by the
immediate return. The decision concerning the parental care
is to be made in the State of residence up to this point.
Evidence; document: annex 2: Copy of the decision of the
Senior Court of Appeal from
SJZ 1990, p. 46
9.4 It is to be pointed out that a return based on Art. 13 has
never been rejected in the entire area of application of the
Hague Convention. This standard is also to be interpreted
very restrictively, as can clearly be seen from the
Perez-Vera report about the l4th. session of the Hague
Conference on International Private Law.
An application of Art. 13 in cases such as this one would
degrade the Convention to worthless paper.
Evidence: document: annex 3: Copy of the Perez-Vera report
9.5 A very important point, which obviously was not thought of in
the considerations of the previous instance, is the question
of whether the ordering of the return of Philippe Adrien
is,actually a separation of mother and child. The previous
instance simply assumes that in a return of the child
Philippe Adrien a separation from the mother is implied (and
— that the appealant has to bear its negative consequences).
One must assume that in accordance with Art. 13 the
respondent has to prove that the joint son would be subjected
to a physical or mental endangerment if he were taken to the
usual place of residence.
In so far as the respondent sees the endangerment for the
child in the fact that it is separated from her (which is
being disputed), then it is her duty as the mother to
accompany the child and to look after it in New York. The
appealant has always emphasized that the respondent can
return at any time (he is against a divorce).
In so far as the respondent does not wish to return or even
considers it to be unreasonable, then it must be emphasized,
with reference to Art. 13(b), that a return can only be
rejected taking the child into consideration, but not the
guilty parent.
Substantiation of the endangerment of the child by the
separation from the mother is accordingly legal misuse from
the outset and is not to be heeded.
Even weighing-up of the protectable interests will show that
it is reasonable for the guilty parent to undertake the
return journey and to initiate any legal steps at the place
of the previous residence.
10 This opinion is expressly confirmed in a decision by the
2nd. Chamber of Civil Law of the Senior Court of Appeal
of the Canton of Zurich of July 18, 1988, which contains
the following consideration:
“To quote Siehr (loc. cit., p. 310 and passim), it must
further be presumed that the abductor, who has left the
previous environment and taken the child with him of his own
accord, and is also resisting the return because he himself
does not wish to return, can only state the well-being of the
child as a justification for his action if a serious
enrdangerment of the child were to be feared; if the abductor
rejects the return himself, then one can easily presume that
he places his own well-being above that of the child (Siehr,
loc. cit. 312, note 16).
(The book quoted is “Siehr, Self-justice by abducting a child
into the country, IPrax 1984”).
11. To sum up, it can be stated that in the assessment of Art.
13, we are not dealing with a weighing-up of the interests of
the child, but that this regulatiom is merely a directive of
public order, which would only be applicable in exceptional
situations. Further, it is disputed on the one hand that any
separation of mother and child fulfils the state of affairs
of Art. 13(b) and on the other hand that this separation may
even be considered as a consequence of the order of return,
now that it is the task of the guilty mother to prevent this
state of affairs.
12. The previous instance also used statements to support
their opinion which are inexact or disputed:
12.1 In so far as breast-feeding of the baby by the
respondent is mentioned, it must be stated that
Philippe Adrien was also fed by bottle from the
outset.
12.2 The strong professional burden which the previous
instance has stated for the appealant must be based on
statements in the plaint for divorce.
The appealant has drastically reduced his workload
since the birth of his son, in order to be able to
dedicate himself more to his son.
It is in any case inadmissible to take on allegations
by the respondent without checking them, especially as
Art. 13 quite clearly allocates the necessity of
proof.
12.3 The statements about the period of living together of
the mother and the child in Switzerland are wrong.
The appealant cannot be blamed for the fact that the
decision about his application for return of his son,
which was submitted as soon as all the circumstances
had become known, took six weeks (cf. Art. 11!).
Further, it must be considered that the course of the
period in Art. 12 comes to a standstill as soon as the
application for return is received hy the Court.
Evidence: document: annex 4: Photo of appealant with
child and bottle
annex 5: letter from Dr.
Softness, Philippe
Adrien’s pediatrician
in NY of 18 Feb 1990.
annex 6: receipt for baby-food
12.4 As regards Philippe Adrien being looked after by
strangers, it must be stated
– that at present Philippe is living with his mother,
his grandmother and her companion, the latter
certainly being more strangers to him than his father,
who gave him his bottle every evening and
-his nurse in New York, who looked after Philippe
since his birth, to start with round the clock and
later during the entire day (so that Carmen Viola was
still able to do her shopping without hindrances) and
-it must again be emphasized that Carmen Viola should
she in fact see a danger for her child, can and should
accompany him.
Evidence: document: annex 7: photos of nurse
annex 8: wage receipts of the
nurse with hours of
work stated
13. The statements in point 12 all deal with matters of fact
which are to be considered when weighing up the interest of
the child, but which are not relevant for the assessment of
the danger for P@ilippe Adrien under the viewpoint of Art. 13
of the Convention. The above mentioned establishments are
accordingly only supplementary.
Should however the wish exist also to take the interest of
the child into consideration, it must on the one hand be
considered that the necessity for proof is, in accordance
with Art. 13, with the respondent and that on the other hand
also Lucien Viola should be able to state arguments (which is
not foreseen in the proceedings according to the Convention)
which speak against leaving the child with his mother.
In this context, we provisionally point out that the
appealant also @ears for the health of his son, as the
respondent had obviously been seriously addicted to drugs for
years and had inter alia still smoked cannabis which had
almost led to products during her pregnancy, the loss of the
child.
Evidence: document: annex 9: Copy of Ietter of Lucien Viola
of 15 Jan 1990 original in the
files
annex 10: letter from Dr. Weseley of 21
Feb 1990.
handing over the criminal law files of
Carmen Viola by the Department
of Justice of the Canton of
Lucerne, possibly by the
Cantonal Police Department
For these reasons, I request granting of the applications made at
the beginning.
Yours faithfully,
for Dr. F. keller
Attorney lic iur. St. Hischier
Registered mail
in duplicate
List of annexes
Annex 1: Decision of Lucerne-Town County Court President II of
20 Feb 1990 incl. service envelope.
Annex 2: Copy of the decision of the Senior Court of Appeal
from SJZ 1990, p, 46
Annex 3: Copy of the Perez-Vera report
Annex 4: Photo of Lucien Viuola with child and bottle
Annex 5: Letter from Dr. Softness, Philippe Adrien’s
pediatrician in NY 18 Feb 1990.
Annex 6: Receipt for baby-food
Annex 7: Photos of nurse
Annex 8: Wage receipts of the nurse with hours of work stated
Annex 9: Copy of letter of Lucien Viola 15 Jan 1990 original in
the files
Annex 10: Letter from Dr. Weseley of 21 Feb 1990.
====================[End of Appeal Brief]========================
[SYSOP NOTE: This is the decision of Luceren – Town County Court
on the appeal of Lucien Viola, with comments of the SYSOP in
footnotes.]
==========[Start of the Decision of the Appeal Court]============
Decision of President II of Lucerne — Town County Court of 20
Feb 1990 (order proceedings in accordance with Section 348, para.
1, no. 1, Code of Civil Proceedings (CCP) concerning the
provisional enforcement of the immediate return of a child (The
Convention on the Civil Aspects of International Child Abduction,
done at the Hague on 25 Oct 1980 [Convention]).
Considerations
1. Lucien Viola and Carmen Viola married in New York on 25
Jun 1988, where they had already lived before. On 09 Oct 1989
Carmen Viola gave birth to the child Philippe Adrien in New York.
On 12 Dec 1989 Carmen Viola traveled with the child to
Switzerland by aeroplane and went to her parents in Lucerne. The
married couple Viola had decided to spend the Christmas period
with the parents of Carmen Viola. However, Carmen Viola decided,
before the arrival of her husband in Lucerne planned for 20 Dec
1989, to make proceedings for divorce pending here. A
corresponding plaint, a request for issuing of provisional
measures and a request for summoning of the married couple to the
legally prescribed attempt at conciliation were received by
Lucerne — Town County Court on 19 Dec 1989.
2. On the basis of the Convention (SR 0.211.230.02), Lucien
Viola made a request on 08 Jan 1990 in which it was applied
Carmen Viola be instructed to return her son FN5 to the father
immediately or to take him back or have him taken back. In case
of omission, Lucien Viola is to be empowered to make use of the
help of the police ((Official County Court Annex 3). The Federal
Agency for Justice made a corresponding request in the same sense
of behalf of Lucien Viola on 10 Jan 1990 (Official County Court
Annex 4).
3. With a decision of 20 Feb 1990 the President of Lucerne —
Town County Court rejected both applications.
4. The Swiss Department of Justice and Police appealed
against this decision of 28 Feb 1990 and applied that the
decision of the previous instance be rescinded and the return of
the child Philippe Adrien Viola to New York be ordered (Official
Senior Court Annex 2). On 02 Mar 1990 Lucien Viola also appealed
against the decision of the County Court President and made the
following applications:
1. The decision made by Lucerne — Town county court
President II on February 20, 1990, be rescinded.
2. The respondent be instructed to return Philippe Adrien
Viola, born on October 9, 1989, to Lucien Viola, 76 West 82nd
Street, New York, New York 10024, immediately.
3. Possibly the respondent be instructed to return Philippe
Adrien Viola, born on October 9, 1989, to the State of New York,
United States, or to have him returned there immediately.
4. In case of omission, the appellant be entitled to make use
of the help of the police.
5. With decision concerning costs and reimbursement to the
account of the respondent.
In her statement of 20 Mar 1990 Carmen Viola applied for
rejection of the appeals with decision concerning costs and
reimbursement to the account of Carmen Viola (Official Senior
Court Annexes 4 and 5).
5. The new documents from the parties for the appeal
proceedings have been taken to the files. The statement of the
facts has been cleared up satisfactorily, and further taking of
evidence can be waived.
6. a) The previous Judge, applying the Convention has
principally come to the conclusion that the preconditions in
accordance with Art. 3 of the Convention are to be considered as
fulfilled. Accordingly, transportation or retention of a child
is considered illegal when this contravenes the parental care
which accrues to a person, authority or other office alone or
jointly in accordance with the law of the state in which the
child had its usual place of residence FN6 immediately before
the transportation or retention. It is additionally presupposed
that the parental care was actually practiced at the point in
time of the transportation or retention or would have been
practiced if the transportation or retention had not taken place
(Art. 3(a), 3(b)). With reference to the statement of the
previous Judge, it must in fact be presupposed that the actions
of Carmen Viola within the meaning of the quoted Art 3 of the
Convention are to be considered as illegal. FN7 The objection
of Carmen Viola that allegedly personal contact to the child was
being made possible for Lucien Viola cannot alter this fact
(Official Senior Court Annex 5, page 4). The “parental care”
within the meaning of the Convention does not only cover
(extensive) personal dealings with the child, but especially also
the right to determine the place of residence of the child (cf..
Art. 5(a) of the Convention).
6. b) The conclusion of the Convention intends protection of
the welfare of the child by granting continuity of the previous
relationships. The factual state, which existed before the
abduction, is to be reinstituted by return of the child as
quickly as possible (cf. Hegnauer, Synopsis of Child Law, 3rd.
edition, N 27.81). The examination of legal questions is
secondary to a) the interest of the child — typified and
presumed in the Convention — of returning to its known
surroundings as soon as possible and b) the interest of the
injured parent for the reinstitution of the previous custody
relations. It is not the material law aspects of the abduction
and returning of the child which are primary, but the
reinstitution of the factual custody relations existing before
the abduction (cf. Christoph Bohmer, The 14th Hague Convention
Concerning International Private Law, 1980, in Rabelsz 46/1982,
p. 646). In accordance with Art. 19, the decision concerning the
return of the child is not deemed a decision concerning the
parental care. If the application for return is made within one
year (cf. Art. 12 of the Convention), then the return of the
child is to be ordered as a matter of principle, without closer
examination of its situation or its possible habituation to its
new surroundings (cf. Christoph Bohmer, loc. cit., p. 649). In
accordance with Art. 13 of the Convention, the responsible
authority is however not obliged to order the return of the child
if the person contesting the return proves that the person
demanding the return has not exercised the parental care or has
subsequently agreed to the transportation or retention. Further,
the return can be rejected if this is connected with the serious
risk of physical or mental damage to the child or otherwise puts
the child into an unreasonable situation (cf. Art. 13(b) of the
Convention. FN8
On the basis of these principles, the previous Judge has
considered the preconditions of Art. 13 of the Convention as
existent and has rejected the return. At the present time, the
son Philippe is a baby of around 4 1/2 months. Regardless of
whether Carmen Viola is still breast – feeding the child or not,
no expert analysis and no further proof from the mother of the
child is necessary to show that the child could be seriously
injured by a longer separation from her. The strong professional
burden of Lucien Viola outside the house, and also the fact that
the mother of the child has been living here in Switzerland apart
from the father of the child since 12 Dec 1989, only a few weeks
after the birth of the child, ought to have intensified the
mother/child relationship in this case considerably (decision of
the President of the County Court, p. 5/6).
Lucien Viola is basically contesting that the child is seriously
endangered in the case of a return, Art. 13 is to be interpreted
restrictively, and its preconditions are to be proven by Carmen
Viola. Further, the return of Philippe does not necessarily mean
a separation of mother and child. Carmen Viola has the
obligation of accompanying the child and of look after it in New
York. According to Art. 13(b) the return can only be rejected
out of consideration for the child, not out of consideration for
the guilty parent. Further, he would be in a position to reduce
his workload as a self – employed worker.
In this regard, Carmen Viola claims that it is obvious that the
child is better off in Lucerne than with his father, who is on
his own, fully employed and permanently on the road all around
the world. In questioning before the President of the County
Court, it was claimed in this context that Philippe is still
being breast – fed at the moment and this alone was justification
for the rejection of the return. Further, the child would
probably be handed over to a children’s home in New York, which
seriously contradicts the child’s well being. FN9
As already mentioned, the interest of the child is of prime
importance in the assessment of the question whether the child is
to be returned to Lucien Viola or not. This also results from
the Preamble of the Convention concluded. Further, it must
principally be presupposed that Carmen Viola has no (legal)
obligation to fly to New York. Just like Carmen Viola in
Lucerne, Lucien Viola has, in the meantime, filed a plaint for
divorce in New York (Official) Senior Court annex 2 from Carmen
Viola). The marital problems appear to be obvious and a return
cannot be considered reasonable for Carmen Viola for this reason.
This is however not exclusively decisive for the assessment of
this case. The basis must rather be the fact that Philippe
Adrien is only six months old and would be disturbed in his
healthy development if he were to return to New York (alone). FN
10 The separation from the person who has up to now been his
primary contact could seriously endanger his psychic development
and stability, especially considering the fact that babies need
motherly care in a special way. FN11 Further, the respondent
can devote her time entirely to bringing up the child in the
present situation. On the other hand, Lucien Viola would be
dependent upon a third party for the care of his son due to his
professional activity, as he also states in his plaint for
divorce (Official Senior Court Annex 2 from Carmen Viola, p.6).
The “Nanny” promised or even Lucien Viola’s mother cannot replace
Carmen Viola. FN12 A separation of a baby from its natural
mother is also only to be practiced in quite extraordinary
circumstances, which is not the case here.
To sum up, it must therefore be stated that a return of the son
Philippe Adrien at the present time would be connected with the
serious danger of physical or mental damage for the child, for
which reason ordering a return must be rejected. In addition, it
must be pointed out that the decision quoted by Lucien Viola from
the Senior Court of the Cantor of Zurich (published in ZR 1989,
pp. 58 ff.) cannot be compared with the facts of this case, as
the children in the case quoted were 12 1/2 and 14 years of age.
It must further be pointed out that this decision can and must
not be of any importance a later allocation of children,
especially considering the fact that the decision would have to
be made in summary proceedings.
7. On 29 Mar 1990 Lucien Viola submitted the request for the
issue of an interim injunction and made the following
applications (Official Senior Court Annex 6):
1. The respondent be forbidden, under threat of punishment in
accordance with Art. 2982, Penal Code, from transporting Philippe
Adrien Viola, born on 09 Oct 1989, abroad or having him
transported there.
2. Possibly, further measures be ordered in order to impose
No. 1 above.
3. This prohibition is to be provisional.
4. With decision concerning costs and reimbursement to the
account of the respondent.
This requests was substantiated by the fact that Carmen Viola
intended to travel to Italy with the son Philippe. Taking
Philippe into another country would result in an irreparable
disadvantage for Lucien Viola. Through this, the return of the
son on the basis of a decision in favour of this appeal by
Lucerne Senior Court would be delayed (Official Senior Court
Annex 6. p. 4).
With this decision, the request by Lucien Viola for the return of
his son is rejected. It cannot be seen to what extent
transportation of the son to Italy could result in a disadvantage
for Lucien Viola, for which reason the request of 29 Mar 1989 is
to be rejected.
8. In accordance with the outcome of the proceedings, the
costs of the appeal proceedings would have to be borne by Lucien
Viola (cf. Section 301, para. 2, CCP). However, on the basis of
Art. 26(2) of the Convention, no official costs of proceedings
are to be charged. However, Lucien Viola is to pay party’s and
Attorney’s fees to Carmen Viola.
Judgment
1. The request of Lucien Viola of 29 Mar 1990 for the issues
of an interim injunction is rejected.
2. The appeals of Lucien Viola and the Swiss Department of
Justice and Police are rejected and the decision of the County
Court President of 20 Feb 1990 is upheld.
3. No court fees are charged. However Lucien Viola is to pay
reimbursement of Attorney’s fees to Carmen Viola to the amount of
Fr. 500.
4. This decision is to be served on the parties and Lucerne
Town County Court.
Luceren, 02 Apr 1990
For Chamber II of the Senior Court
The President: (signature)
Court Secretary: (signature)
Official Seal of the Court.
============[End of the Decision of the Appeal Court]===========
——————–
1. The problem here may be the translation of the meaning of the
words from the original French or English versions of the
Convention to the German used in this part of Switzerland. The
Convention states that the child need not be returned if the
conditions of Art 13(b) apply — here rather innocuous language.
If this phrase is re-written using the actual language of Art
13(b) we get the following: “Further, the return of the child
should not be ordered, as there would be a grave risk that his
return would expose him to physical or psychological harm or
otherwise place him in an intolerable situation because the child
would be cared for by a person other than his mother.” In this
context it can be seen that this is, at best, a frivolous
application of Art. 13(b). The comments of Elisa Perez-Vera on
this point should be considered as well: “34 To conclude our
consideration of the problems with which this paragraph deals, it
would seem necessary to underline the fact that the three types of
exception to the rule concerning the return of the child must be
applied only so far as they go and no further. This implies above
all that they are to be interpreted in a restrictive fashion if
the Convention is not to become a dead letter. In fact, the
Convention as a whole rests upon the unanimous rejection of this
phenomenon of illegal child removals and upon the conviction that
the best way to combat them at an international level is to refuse
to grant them legal recognition. The practical application of this
principle requires that the signatory States be convinced that
they belong, despite their differences, to the same legal
community within which the authorities of each State acknowledge
that the authorities of one of them – those of the child’s
habitual residence – are in principle best placed to decide upon
questions of custody and access. As a result, a systematic
invocation of the said exceptions, substituting the forum chosen
by the abductor for that of the child’s residence, would lead to
the collapse of the whole structure of the Convention by depriving
it of the spirit of mutual confidence which is its inspiration.”
WMH Note 29 Aug 1991.
2. The actual language of Art 13(b) differs: “there is a grave
risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation.” It is questionable if the terms “unreasonable
position” and “intolerable situation” can have the same meaning.
WMH Comment 29 Aug 1991
3. There was no showing by any person, expert or otherwise, that
this would be the case. It appears to have been an assumption of
the President of the Court. WMH Note 29 Aug 1991
4. Contrast this remark with the language from Burchard v Garay
(1986) 42 Cal.3d 531 [229 Cal.Rptr. 800; 724 P.2d 486] at page
540: “The court also referred to the fact that Ana worked and had
to place the child in day care, while William’s new wife could
care for the child in their home. But in an era when over 50
percent of mothers [FN1: Atkinson, Criteria for Deciding Child
Custody in the Trial and Appellate Courts (1984) 18 Fam.L.Q. 1,
15.] and almost 80 percent of divorced mothers [FN 2 Steinman,
Joint Custody: What We Know, What We Have Yet to Learn, and the
Judicial and Legislative Implications (1984) 16 U.C.Davis L.Rev.
739, 740.] work, the courts must not presume that a working mother
is a less satisfactory parent or less fully committed to the care
of her child. A custody determination must be based upon a true
assessment of the emotional bonds between parent and child, upon
an inquiry into “the heart of the parent-child relationship . . .
the ethical, emotional, and intellectual guidance the parent gives
to the child throughout his formative years, and often beyond.”
(In re Marriage of Carney, supra, 24 Cal.3d 725, 739.) It must
reflect also a factual determination of how best to provide
continuity of attention, nurturing, and care. It cannot be based
on an assumption, unsupported by scientific evidence, that a
working mother cannot provide such care–an assumption
particularly unfair when, as here, the mother has in fact been the
primary caregiver. [FN3 We suspect that any presupposition that
single working parents provide inferior care to their children
will in practice discriminate against women. Divorced men are more
likely to remarry than divorced women, and far more likely to
marry a nonworking spouse.]” WMH Note 29 Aug 1991
5. Note use of the word “her” rather than “their”. WMH Comment 29
Aug 1991
6. Habitual Residence? WMH Note 29 Aug 1991
7. It would be better to use the word “Wrongful” here as no
criminal act on the part of a party taking a child is required to
implement the Convention. WMH Note 29 Aug 1991
8. The actual language of Art 13(b) is instructive on this issue:
“there is a grave risk that his or her return would expose the
child to physical or psychological harm or otherwise place the
child in an intolerable situation.” Note how much stronger this
language is than that cited in the case. UK cases have also held
that mere “best interests” is not sufficient to activate this
section and have further held that it is to be read as one
statement, with no division between the grave risk section and the
intolerable situation section, that is, the intolerable situation
requires the same level as the grave risk section. Note that 42
U.S.C. 11603(e)(2)(A) requires clear and convincing evidence for
an application of Art 13(b). WMH Comment 29 Aug 1991
9. See Footnote 4 for a discussion on the issue of child care.
WMH Comment 29 Aug 1991
10. He would not be alone, he would be with his father. WMH
Comment 29 Aug 1991
11. This allows the mother to defeat the Convention by acts of her
own. This was not allowed in some of the UK cases. WMH Comment
29 Aug 1991
12. See Footnote 4 for a discussion on the issue of child care.
WMH Comment 29 Aug 1991