Identifier
Created
Classification
Origin
05VIENNA28
2005-01-05 15:11:00
UNCLASSIFIED
Embassy Vienna
Cable title:  

AUSTRIA ORDERS ANOTHER HAGUE RETURN ENFORCED &

Tags:  CASC KOCI AU 
pdf how-to read a cable
This record is a partial extract of the original cable. The full text of the original cable is not available.
UNCLAS VIENNA 000028 

SIPDIS

DEPT FOR CA/OCS/CI & MBERNIER-TOTH AND GDEBOER

E.O. 12958: N/A
TAGS: CASC KOCI AU
SUBJECT: AUSTRIA ORDERS ANOTHER HAGUE RETURN ENFORCED &
GIRL TO BE RETURNED TO POLISH FATHER DESPITE CLAIM OF
"GRAVE RISK"

REF: (A) VIENNA 4198 (B) VIENNA 4200

UNCLAS VIENNA 000028

SIPDIS

DEPT FOR CA/OCS/CI & MBERNIER-TOTH AND GDEBOER

E.O. 12958: N/A
TAGS: CASC KOCI AU
SUBJECT: AUSTRIA ORDERS ANOTHER HAGUE RETURN ENFORCED &
GIRL TO BE RETURNED TO POLISH FATHER DESPITE CLAIM OF
"GRAVE RISK"

REF: (A) VIENNA 4198 (B) VIENNA 4200


1. SUMMARY: AUSTRIAN COURTS HAVE AGAIN ORDERED THE
RETURN OF A CHILD UNDER THE HAGUE CONVENTION, THIS TIME
TO HER FATHER IN POLAND. THIS MARKS THE THIRD TIME IN
2004 THAT THE AUSTRIAN GOVERNMENT HAS ORDERED THE RETURN
OF A CHILD UNDER THE HAGUE CONVENTION, DESPITE INVOCATION
OF ARTICLE 13B, WHICH CONCERNS THE POSSIBLE "GRAVE RISK"
WHICH COULD OCCUR BECAUSE OF A RETURN. THIS IS ALSO THE
SECOND TIME IN AS MANY MONTHS THAT A LITTLE GIRL WAS
ORDERED RETURNED TO HER FATHER. THIS MAY BE THE LAST
HAGUE RETURN CASE IN AUSTRIA TO BE HEARD BY A REGULAR
COURT ?S OF JANUARY 1, 2005, ONLY 16 SPECIALLY
DESIGNATED COURTS WHICH HAVE RECEIVED SPECIAL TRAINING
WILL HANDLE HAGUE RETURN CASES. END SUMMARY


2. ACCORDING TO THE SUPREME COURT DECISION, LITTLE
"ANITA J." WAS ABDUCTED BY HER MOTHER IN JULY 2003, AND
BROUGHT TO AUSTRIA, WHERE THE MOTHER'S SISTER WAS
WORKING. THE PARENTS HAD BEEN LIVING APART WHILE THE
MOTHER WORKED ABROAD. ANITA WAS BEING RAISED BY HER
FATHER, AN AGRICULTURAL WORKER. THE MOTHER RETURNED HOME
FOR A SHORT VISIT AND WHILE THE FATHER WAS TEMPORARILY
AWAY, TOOK THE CHILD TO AUSTRIA. SHE THEN FILED FOR
DIVORCE IN POLAND IN SEPTEMBER 2003, AND WAS ULTIMATELY
GRANTED CUSTODY, BUT THE DIVORCE DECREE HAS NOT YET BEEN
FINALIZED.


3. THE CASE MOVED EXTRAORDINARILY QUICKLY COMPARED TO
OTHER HAGUE CASES IN AUSTRIA. THE FATHER DID NOT FILE
FOR RETURN UNDER THE HAGUE CONVENTION UNTIL SOME TIME
AFTER THE MOTHER FILED FOR DIVORCE, BUT BEFORE THE
CUSTODY DECISION BECAME FINAL IN JANUARY 2004. THEN, ON
JANUARY 28, 2004, THE AUSTRIAN LOWER COURT RULED AGAINST
A RETURN, CITING ARTICLE 13B BASED ON THE MOTHER'S CLAIMS
THAT THE FATHER ABUSED ALCOHOL AND THREATENED THE CHILD.
THE FATHER WAS NOT HEARD IN COURT, AND THE TRANSLATOR FOR
THE CHILD WAS THE CHILD'S OWN MATERNAL AUNT. AN APPEALS
COURT NONETHELESS UPHELD THIS DECISION ON MARCH 3, 2004,
AND DISMISSED THE FATHER'S ASSERTION THAT HE HAD NOT BEEN
HEARD IN COURT. ON OCTOBER 29, 2004, THE AUSTRIAN
SUPREME COURT RULED IN FAVOR OF AN EXTRAORDINARY APPEAL
(THE APPEALS COURT HAD INITIALLY RULED OUT FURTHER
APPEALS) AND ORDERED THE LOWER COURT TO REVIEW THE CASE
AND TO VERIFY THE MOTHER'S CLAIMS, AS REQUESTED BY THE
FATHER.


4. THE SUPREME COURT RULING EMPHASIZED THAT THE
CONVENTION IMPLIES THAT THE RETURN IS IN ITSELF GOOD FOR
THE CHILD'S WELL-BEING, AND THEREFORE THE MERE RETURN
CANNOT ITSELF BE GROUNDS FOR INVOKING ARTICLE 13B. IT
ALSO CITED THE PURPOSE OF THE CONVENTION IN DETERRING
ABDUCTION BY FACILITATING THE RETURN OF THE ABDUCTED
CHILD. THE SUPREME COURT CONCURRED WITH THE FATHER'S
REQUEST THAT THE MOTHER'S ALLEGATIONS SHOULD FIRST BE
VERIFIED. THE FATHER CLAIMS THE MOTHER IS LIVING
ILLEGALLY IN AUSTRIA, AND ALSO ABUSES ALCOHOL. THE CASE
WAS ULTIMATELY REMANDED TO THE LOWER COURT FOR SOCIAL
CIRCUMSTANCE REPORTS ON BOTH PARENTS' LIVING CONDITIONS,
AS PROVIDED FOR IN ARTICLE 13. THE AUSTRIAN SOCIAL
WORKERS HAVE ALREADY COMPLETED THEIR REPORT; THE POLISH
REPORT IS PENDING. IT IS POSSIBLE THAT BY THE TIME THAT
REPORT IS COMPLETED THE POLISH DIVORCE DECREE GIVING THE
MOTHER CUSTODY WILL ALREADY HAVE BECOME FINAL, ALLOWING
THE MOTHER TO TRAVEL TO POLAND AND TAKE BOTH LEGAL AND
PHYSICAL CUSTODY OF THE GIRL.


5. EMBASSY COMMENT: IT IS INTERESTING THAT THE AUSTRIAN
SUPREME COURT HAS FINALLY STATED CLEARLY FOR THE BENEFIT
OF LOWER AUSTRIAN COURTS THAT ARTICLE 13B ?HICH
PROVIDES THAT A RETURN MAY BE DENIED IN CASES WHERE THE
CHILD WOULD BE PUT IN GRAVE RISK IF RETURNED ?OES NOT
APPLY MERELY BECAUSE THE CHILD WOULD BE (ONCE AGAIN)
UPROOTED FROM HIS/HER CURRENT HOME (THUS OTHERWISE
REWARDING THE ABDUCTOR FOR CREATING THE STATUS QUO). WE
NOTE THAT AS OF JANUARY 1 OF THIS YEAR ALL HAGUE RETURN
CASES ARE CONSOLIDATED INTO 16 COURTS, WHICH HAVE ALREADY
RECEIVED SPECIAL TRAINING ON THE HAGUE CONVENTION.


6. EMBASSY COMMENT CONTINUED: THE REPORTING IN THIS
CABLE WAS FACILITATED BY THE EXTRAORDINARY COOPERATION WE
RECEIVED FROM THE AUSTRIAN COURTS. THE SUPREME COURT
FAXED US A COPY OF THE COURT'S DECISION UPON OUR REQUEST,
AND THE LOWER COURT READILY PROVIDED US WITH AN UPDATE ON
THE STATUS OF THE CASE WHEN WE CALLED. END COMMENT.

BROWN