A highly controversial provision of the Federal Act is Section 5, which on its face unnecessarily expands the scope of Article 13(b) of the Convention. It states as follows:

“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:

1. placement with the parent who filed the application is manifestly not in the child’s best interests;
2. 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
3. placement in foster care is manifestly not in the child’s best interests.”

It is the bedrock principle of the Hague Abduction Convention is that a case brought under the Convention is not a custody case and that, unless one of the very limited exceptions is established, wrongfully-removed and wrongfully-retained children should be returned promptly to their country of habitual residence whose courts may then determine the children’s best interests.

On its face, Article 5 expressly violates that principle.

Nonetheless, Swiss jurisprudence has sensibly applied Article 5 in a restrictive manner, as is shown in two highly significant cases.

The 2012 Case

In the first such case, 5A_479/2012, IIe Cour de droit civil, arrêt du TF du 13 juillet 2012, children were abducted from Poland to Switzerland. A Polish court had awarded joint parental authority of the children to the parents, with the mother to have physical custody. On the same day, the parents had entered into an agreement giving extensive rights of access to the father. The mother then left Poland with the children to live near her father in Switzerland, and cited Section 5 of the Swiss Federal Law in opposition to the father’s Hague application.

The Swiss Federal Tribunal, 2nd Civil Tribunal, 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. It ruled 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.

The 2017 Case

The second case is the decision of the Swiss Supreme Court in 5A_936/2016 du 30 Janvier 2017, in which a Swiss mother had abducted two children, born and raised in England, from their habitual residence in England. Under English law, she and the English father had shared parental responsibility, but effective custody of the children was exercised solely by the mother, subject to the father’s right of access, for just three hours a week, in a child protection center. The father had been prohibited from visiting the mother’s home since October 2013, following repeated domestic violence in the presence of the children. 

The mother relied on Article 5 of the Swiss Federal Law to oppose the father’s Hague petition and she represented that she did not wish or intend to return to England. She also asserted that she faced arrest if she returned to the U.K.

The Swiss court held that she had not established her defense. It stated the following principles:

• The exceptions to return provided for in Article 13 of the Convention must be interpreted restrictively.
• The abducting parent should not derive any benefit from his or her illegal behavior.
• Only serious risks must be taken into account, to the exclusion of reasons related to the capacities of the parents, since the Convention is not intended to rule on the best interests of the child, and in particular on the question of determining which parent would be best suited to raise and care for the child.
• The test of intolerable return to the country of origin concerns the child itself, and not the parents, which means that, depending on the circumstances, a return may lead to a separation between the child and his / her primary care provider. Such a separation does not in itself alone constitute a reason for refusal of return.
• However, the situation is different for infants and young children, at least up to the age of two; in this case, the separation from the mother constitutes an intolerable situation. [Note – this principle is not in accordance with much of the international jurisprudence].
• A return of the abducting parent with the child, within the meaning of Article 5, cannot, for example, be required if the taking parent is exposed to imprisonment, or if she has established very solid family relationships in Switzerland, particularly after a new marriage. However, these must be exceptional situations, in which the abducting parent cannot be reasonably required to return to the child’s country of last residence for the purpose of waiting for a final judgment on parental rights. [Note – again, this principle does not accord with much of the international jurisprudence].

In applying those principles, the Court found that:

• The children were over the age of two, so that the principle of not separating younger children from their mother did not apply.
• The mother expressed her wish not to return to Britain, but she had not established that she would be unable to do so.
• In particular, the risk of criminal proceedings which she might incur was insufficient, since it did not appear from the file that she would definitely be exposed to detention and that the father had declared that he had taken no steps in this direction with the criminal authorities. 
• In any event, the criterion of intolerable return to the country of origin concerned the children and not the abducting parent. 
• The same went for the claim (apparently clearly established) that the father would be unable to take care of the children if they were returned to Britain.
• Those issues were for the courts in Britain to decide as part of their custody jurisdiction.
• Even if the mother chose not to return, and even if the British courts decided that the father was unable to care for them such that they needed to be placed in an institution, this element could not constitute an intolerable situation for the two children. 
• In any event, such a placement – if the mother decided not to return to Britain with her daughters and the father should be judged, by the English authorities, to be incapable of assuming custody of them – did not expose the children to a serious danger to their development. 
• The only factor that could potentially apply under Article 13(b) of the Convention concerned allegations of violence. However, it appeared that in reality the return order would not be the cause of any such endangerment of the situation of the children, but only a new change in the regime of custody and access resulting from the unfounded refusal of the mother to return to England. 
• The return order did not need to oblige them to relocate close to the father’s home, which might jeopardize the stability resulting from geographic distance. 
• Accordingly, the Court ordered that, if the mother did not return the children to Britain within two months, the Child Protection Agency in Geneva must return the children to their father in Britain, with the assistance of the police if necessary.

_________________________

* Jeremy D. Morley is a New York attorney who handles international child abduction and international child custody matters concerning the United States and Switzerland, as well as globally, but always acting as appropriate in collaboration with local counsel.