Information Note on the Court’s case-law 45

August-September 2002

Sylvester v. Austria (dec.) - 36812/97 and 40104/98

Decision 26.9.2002 [Section I]

Article 8

Article 8-1

Respect for family life

Reversal of court order to return infant to father in USA because the passage of time gave rise to a risk of psychological harm if separated from mother: admissible

The first applicant is a citizen of the USA. The second applicant is his daughter, born in 1994. Her mother is an Austrian national. On 30 October 1995, the mother quit the family home in Michigan with her daughter and returned to Austria without the first applicant’s consent. The following day, the first appl icant requested the Austrian courts, on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, to order the return of his daughter. This was the first in a series of many rulings by both Austrian and American courts.

The first judgment issued by the Graz District Civil Court on 20 December 1995 ordered the return of the second applicant to the family’s former home. It found that the mother had wrongfully removed the child within the meaning of Article 3 of the Hague Co nvention. The mother’s argument that returning her daughter would expose the latter to physical or psychological harm (Article 13(b) of the Hague Convention) was not accepted. The mother’s appeals to the Regional Civil Court and Supreme Court were rejected . On 27 February 1996, the first applicant sought enforcement of the return order. On 16 April 1996, the first applicant was granted a divorce and sole custody of the second applicant by a Michigan court. The Graz District Civil Court ordered the enforceme nt of the return order on 8 May 1996. This was attempted unsuccessfully on 10 May 1996. Five days later, the mother lodged an appeal against the enforcement order, which had the effect of staying it. The order was quashed by the Regional Civil Court on 29 August 1996 and the matter remitted to the District Civil Court. The applicant’s appeal against this decision was dismissed on 15 October 1996 by the Supreme Court, which held that the child’s welfare took priority over all other matters and was not affect ed by the fact that it was the mother’s actions that had led to the situation where the return of the child could give rise to psychological harm.

The Graz District Civil Court issued a second ruling on 29 April 1997, dismissing the father’s application. A n expert on child psychology advised the court that the lapse of time since the second applicant had last seen the first applicant (1 year and 6 months) was so long that he was now a total stranger to her and she would, if removed from her mother, be expos ed to serious psychological harm. There was a warrant for the mother’s arrest in the USA. Even though a safe harbour order was subsequently issued, there was no certainty that if she returned there with the child she would not lose custody later on. The ap plicant’s appeals against this ruling to the Regional Civil Court and Supreme Court were rejected. Finally, the Graz District Civil Court awarded sole custody of the second applicant to her mother. That judgment became final in late 1998.

Admissible under Article 8.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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