- Professional News
- 10 November 2011
Children aged 3 and 5 returned to Italy
Retention of the children in Denmark was illegal.
The father was an Italian citizen and the mother a Danish citizen. They were married in Italy and lived there for five years. Both children were born in Italy. According to agreement, the mother travelled to Denmark with the children to spend the summer holiday. She had booked return tickets. However, the mother chose to remain in Denmark and did not fly back as planned.
She brought matrimonial proceedings before the City Court of Copenhagen and started a child custody case.
The father contacted the Italian authorities and had the custody case put on hold in Denmark on the grounds that retention of the children in Denmark was illegal pursuant to Italian law. The mother claimed that the father did not have the time to take care of the children and that his family in Italy did not show any concern for them.
The Danish Enforcement Court assessed that retention of the children in Denmark violated Italian law. Consequently, the mother’s retention of the children violated the Danish Child Abduction Act (børnebortførelsesloven) s. 10 (1) and (2). A return of the children was not denied because there was no specific risk of the children being exposed to physical or psychological harm.
The High Court of Eastern Denmark upheld the Enforcement Court’s order agreeing that retention of the children was illegal. Furthermore, the High Court did not find it rendered probable that returning the children to their father would expose the children to physical or psychological harm.
Both Denmark and Italy have acceded to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Thus the Danish authorities are obliged to return the children if retaining them in Denmark violates the laws of the country in which the children lived (had their usual place of residence) at the time of retention.
(Judgment delivered on17 June 2011 by the High Court of Eastern Denmark in appeal no. B-1201-11 before the 19th Division)