AUSTRIAN COURTS ORDER AGAINST HAGUE RETURN TO

UNCLAS VIENNA 000493

SIPDIS

DEPT FOR CA/OCS/CI AND EUR/AGS

E.O. 12958: N/A
TAGS: CASC KOCI AU
SUBJECT: AUSTRIAN COURTS ORDER AGAINST HAGUE RETURN TO
HUNGARY

REF: PHILLIPS/CI EMAIL OF FEB 11, 2005


1. SUMMARY: In July 2004 Austrian courts ordered against
the return of a child to her father in Hungary. According
to Supreme Court documents, the mother wrongfully retained
the child in Austria when she failed to return the child
after a scheduled summer visitation in 2003. In
conversations with the judge, the girl stated that her
father hit her almost daily, that she was afraid of him, and
that she would rather live with her mother in Austria. The
courts determined that the nine-and-a-half year old girl was
old enough for her opinion to be taken into consideration,
citing the "age of maturity" clause in Article 13 of the
Hague Convention. Interestingly, the courts did not cite
Article 13B, grave risk, in reaching this decision. They
also reached their decision with unusual promptness. END
SUMMARY.


2. The girl was born in Hungary on October 11, 1994. Her
parents divorced in 2000. Hungarian courts awarded the
father sole custody, but in 2002 the parents agreed the
mother would have visitation in Austria. In June 2003 the
mother took the child to Austria but did not return the
child in July as expected. Instead the mother attempted to
file for full custody of the child through a Hungarian City
Court. The Hungarian City Court denied the mother's
application for custody and ordered her to return the child
within eight days. The mother then applied for custody of
the child through the Austrian Lower Court on September 25,

2003.


3. On October 29, 2003 the father filed for return under
the Hague Convention. In the course of the proceedings, the
girl told a child psychologist and a social worker that she
was afraid of her father, that he hit her almost daily, and
that she did not want to live with him. The Austrian Lower
Court rejected the father's application for return, citing
Article 13 of the Convention, which provides for denial of
the return if the child objects.


4. The Austrian Appeals Court supported the Lower Court's
decision, arguing that, at the age of nine-and-a-half, the
child was old enough to have her opinion taken into
consideration. The Appeals Court based this decision on a
prior Austrian Supreme Court case from 1992, which had
deemed a 10-year old boy mature enough to voice his opinion
in court, per Article 13 of the Convention. The Supreme
Court, citing that the 1992 decision was still relevant and
applicable, subsequently refused to hear the case because
the there had been no procedural flaws in the Appeals court
decision.


5. EMBASSY COMMENT: Austrian law has always provided that,
in custody cases, the courts could take a child's opinion
into consideration once the child has reached age 10.
However, this ruling lowers the bar somewhat for Hague
cases. It is interesting to note that the court did not
refer to Article 13B's provision on "grave risk". This
suggests that the courts have learned not to cite this
section of the Convention simply because of a child's
integration into his/her new environment. It is also
interesting to note that the entire legal process took less
than a year from initial filing to final appeal. This is
considerably less than Hague cases we have followed in the
past. END COMMENT.

BROWN