[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