The year 2022 saw an important legal victory for ELC, our law firm.
On September 28, 2022, the Swiss Supreme Court (the Federal Court) issued a decision that put an end to a case of unlawful removal of children from Greece to Switzerland for seven months. Our Law firm, representing the father of the children and requesting their return, won the case at all levels.
The phenomenon of child abduction has grown in recent decades for several reasons, including globalization, the evolution of family law and the increase in binational couples.
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter referred to as the "Hague Convention") is the main legal instrument in this field, as it is currently binding on 100 States (for more information, we invite you to read our article of 1 February 2022)
The most controversial issue before the cantonal courts was whether the mother, according to Greek law, could move to Switzerland with the children without the father's permission, since she had temporary sole custody of the children and the couple had been separated for years. The mother, on the other hand, obviously argued that the father's consent to the move abroad was not necessary because of her sole custody of the children.
The Swiss judge did not have to decide on the matter by applying Greek law, since on May 10, 2022 the Court of First Instance of Athens ruled that the move was illegal. Indeed, art. 14 THC 80 allows the authorities of the requested State to rely directly on a judicial or administrative decision formally recognized in the State of the child's habitual residence in order to determine the existence of an unlawful removal in the sense of art. 3 THC 80.
The Swiss judicial authority thus had to analyze the exceptions to return provided for in art. 13 THC 80, which were lacking in this case, before ordering the immediate return of the children to Greece, in accordance with art. 12 THC 80.
The decision of the cantonal court confirms the rigidity of THC 80, which was rightly designed to protect children from the harmful consequences of abduction by ensuring, among other things, that existing rights of custody and access in a contracting state are effectively respected. In this case, neither the rapid integration of the children in Switzerland nor their preference for this country could prevent their return to their country of habitual residence, Greece, since the law of that country had been violated.
In her appeal to the Federal Court, the children's mother mainly contested the fact that the cantonal court based its decision (in the sense of art. 14 CLaH 80) on the Greek decision of May 10, 2022, which she claimed was null and void.
The Swiss Supreme Court's response to this complaint was clear: art. 14 THA 80 serves the principle of expediency that should apply to this type of case; its purpose is not to recognize a foreign decision in advance or to examine its conformity. Therefore, the cantonal authority had not violated federal law.
Moreover, the Federal Court confirmed its case law not only with regard to the restrictive application of the exceptions to return (art. 13 CLaH 80) but also with regard to the burden of proof and the requirement to state reasons (art. 42 para. 2 FSCA).
In the present case, the complaints raised by the appellant were of a purely appellatory nature or expressed her point of view, but did not show precisely in what way the cantonal court had violated the law.
The appeal was therefore dismissed.
The children, represented by a lawyer of their choice and not by the curator who had been appointed in the cantonal proceedings, also appealed to the Federal Court.
However, the appeal was declared inadmissible. Indeed, lacking the capacity of discernment regarding the dispute between the parents, which had been determined by the cantonal court, the appellants could not free themselves from the services of their curator in order to mandate a lawyer of their choice.
After seven months of legal battle, for a dispute which proved to be very delicate not only for its nature but also for the tense relations between the parties, we welcomed the decision of the Federal Court. Justice has been rendered for a father whose rights were violated!