The author of the communication is C.O.D., a national of Chile born on 19 September 1973. She is submitting the communication on behalf of her son, C.A.K.O., a dual national of Chile and Switzerland born in Switzerland on 4 September 2013. The author claims that the State party has violated her son’s rights under articles 3, 9, 11 and 193 of the Convention. The Optional Protocol entered into force for the State party on 1 December 2015.
- The author mistakenly refers to article 18 of the Convention but reproduces the content of article 19. ↩
On 6 December 2020, pursuant to article 6 of the Optional Protocol, the working group on communications, acting on behalf of the Committee, rejected the author’s request for the adoption of interim measures to suspend the return of C.A.K.O. to Switzerland pending consideration of the case by the Committee. On 10 November 2022, the author again requested interim measures to suspend the return of C.A.K.O. to Switzerland, after he had been brought by the authorities to the Swiss Embassy in the State party in preparation for his return to Switzerland the following day. On 11 November 2022, the working group on communications, acting on behalf of the Committee, decided not to request the State party to adopt interim measures. In her final submission, the author informed the Committee that C.A.K.O. had been returned to Switzerland on 11 November 2022.
Facts as submitted by the author
On 12 May 2012, the author married R.K., a national of Switzerland, in Chile. In September 2012, the couple settled in Switzerland and, on 4 September 2013, their son, C.A.K.O., was born there. On 26 August 2016, after considering an application for separation filed by the author, the Court of First Instance of Hinwil, Switzerland, issued a ruling establishing the couple’s de facto separation, setting the maintenance to be paid by the father (1,400 Swiss francs in respect of C.A.K.O. and 4,400 Swiss francs in respect of the author) and placing C.A.K.O. in the personal care of the author. The author alleges that in the following days she began to notice that C.A.K.O. was feeling unwell, sleeping badly and crying frequently and that he seemed to be very anxious.
On 6 December 2016, the author travelled to Chile on vacation with C.A.K.O., having booked a return flight for 12 January 2017. The author claims that, in Chile, she noticed that C.A.K.O. was behaving strangely. On 27 December 2016, C.A.K.O. was examined by a psychologist, who issued a report suggesting that he might have been exposed to abuse and recommending that an investigation and assessment of the environment in which C.A.K.O. was growing up and the persons involved in his care be carried out. On the strength of this recommendation, the author took C.A.K.O. to the San Joaquín Mental Health Centre of the Pontifical Catholic University of Chile, where he underwent nine sessions of psychotherapy between December 2016 and January 2017, following which it was suggested that a complaint of child sexual abuse be filed and that it was important that C.A.K.O. remained with his mother in Chile. On 14 January 2017, the author informed R.K. that she would not be returning to Switzerland.
On 3 February 2017, the author requested the Protective Measures Centre of the Santiago family court system to order a protective measure in respect of her son. On 29 March 2017, the judge presiding over the Protective Measures Centre issued a ruling in which she agreed to the author’s request, ordered that C.A.K.O. be formally admitted to the Child and Adolescent Sexual Abuse Reparations Programme of the San Joaquín Mental Health Centre and referred the case to the local prosecutor’s office in Ñuñoa for investigation of a possible offence of child sexual abuse. On 12 January 2018, the judge of the Protective Measures Centre adopted a protective measure prohibiting R.K. from contacting his son for 180 days.
On 6 December 2017, R.K. brought a claim against the author in the First Family Court of Santiago, requesting the international return of C.A.K.O. under the Convention on the Civil Aspects of International Child Abduction. On 9 April 2018, the First Family Court of Santiago issued a ruling ordering C.A.K.O.’s return to Switzerland, on the grounds that Switzerland was his country of habitual residence and that none of the exceptions to the duty to return the child established in the Convention on the Civil Aspects of International Child Abduction were applicable.
On 14 April 2018, the author filed an appeal with Santiago Court of Appeal, which upheld the contested ruling in its entirety on 8 October 2018, also on the grounds that the child’s country of habitual residence had been determined to be Switzerland and that none of the exceptions to the duty to return established in the Convention on the Civil Aspects of International Child Abduction were applicable. On 13 October 2018, the author filed a petition of complaint against the Court of Appeal’s ruling with the Supreme Court. On 31 October 2018, the author applied to the Constitutional Court for constitutional review of the Supreme Court decision establishing that, in proceedings related to the Convention on the Civil Aspects of International Child Abduction, appeals were admissible only in respect of first-instance rulings.4 On 14 March 2019, the Constitutional Court rejected the author’s application in summary proceedings. On 17 October 2019, the Supreme Court rejected the petition of complaint on the grounds that the decision of the Court of Appeal was duly substantiated insofar as it endorsed the arguments set forth in the first instance ruling.
- Supreme Court, Decision No. 205-2015 of 3 December 2015, arts. 1 and 12. ↩
On 16 June 2020, the First Family Court of Santiago issued its final ruling on the motion for enforcement of the return order, ordering the return of C.A.K.O. to Switzerland.
Complaint
The author argues that the court of first instance should not have ordered the international return of C.A.K.O. since he was in her personal care before, during and after their departure from Swiss territory. Therefore, neither his departure from Switzerland nor his stay in the State party constituted unlawful removal within the meaning of the Convention on the Civil Aspects of International Child Abduction (arts. 3 and 13 (a)). The author adds that the return of C.A.K.O. is also prohibited under article 13 (b) of the Convention, as it would constitute a grave risk for the child, exposing him to grave physical or psychological harm or otherwise placing him in an intolerable situation. She alleges that handing C.A.K.O. over to his father would mean exposing him to further sexual abuse. She adds that neither the father’s suitability as a parent nor the possible mental disorders that led him to violate his own son in such an atrocious manner were ever assessed. She emphasizes that she alone is in a position to guarantee the protection and safety of C.A.K.O. and that it would be unreasonable to separate him from her. The author further argues that the Supreme Court did not take into account C.A.K.O.’s attachment to his environment in Chile and did not anticipate the immediate and future consequences of its decision for a child whose rights had been gravely violated by his father, to whom it had been ordered that he be returned.
The author claims that, in deciding that C.A.K.O. should be returned to Switzerland, the State party violated his rights under articles 3, 9, 11 and 18 of the Convention. With regard to article 3, the author recalls that, conceptually, the best interests of the child constitutes a substantive right, an interpretative legal principle and also a rule of procedure. She adds that a best interests assessment should be undertaken in each individual case and should take account of the child’s specific circumstances, including, in particular, the specific form and degree of his or her vulnerabilities. She emphasizes that, if, exceptionally, the solution chosen is not in the best interests of the child, the grounds for this choice must be explained, so as to demonstrate that the child’s best interests were a primary consideration despite the result, and all considerations related to the case must be expressly specified and the reason for which they were accorded greater weight explained.5 The author emphasizes that the State party’s courts did not rule in the best interests of C.A.K.O. in that they ruled that he should be returned to Switzerland to be with his aggressor, who has violated his rights and caused him the worst possible harm, and instead opted to protect the father’s rights.
- The author extensively cites the Committee’s general comment No. 14 (2013). ↩
In relation to article 9 of the Convention, the author argues that separating C.A.K.O. from his mother and returning him to his father would have serious and potentially irreversible effects on his health. She alleges that separating a child from his or her parents should be a measure of last resort and that the national courts failed to take this into consideration, in violation of C.A.K.O.’s rights under the aforementioned article.
With regard to article 11 of the Convention, the author argues that a State party should not transport a child to a country where there are reasonable grounds to believe that he or she would face a real risk of irreparable harm. The author argues that C.A.K.O.’s country of residence should be considered to be the State party, since, in addition to having Chilean nationality, he has resided in Chile for more than half of his life, it is where he has the deepest roots and emotional ties, where he is safe, and where he has grown up and achieved stability and happiness. She maintains that C.A.K.O. was not wrongfully removed or retained. The author therefore claims that her son’s transportation to Switzerland would constitute a violation of article 11 of the Convention.
The author argues that transporting C.A.K.O. to Switzerland would entail a violation of the State party’s obligation under article 19 of the Convention6 to protect children from all forms of ill-treatment by their parents or any other person responsible for their care.
- While the author makes repeated mention of article 18 of the Convention in her communication, she reproduces the content of article 19. ↩
The author asks the Committee to recommend that the order for C.A.K.O.’s return be set aside; that C.A.K.O. should remain in the State party and not be separated from his mother; that C.A.K.O. should remain in her personal care; and that the father’s suitability as a parent should be assessed by a judge of the State party.
State party’s observations on admissibility and the merits
In its observations on admissibility of 6 April 2021 and its observations on the merits of 6 August 2021, the State party claims that the communication constitutes an abuse of the right of submission within the meaning of article 7 (c) of the Optional Protocol and that the facts on which it is based cannot in principle constitute a violation of the rights recognized in the Convention since the communication is manifestly unfounded or insufficiently substantiated within the meaning of article 7 (f) of the Optional Protocol.
With reference to article 7 (c) of the Optional Protocol, the State party maintains that the decision of the national courts to order the return of C.A.K.O. to his place of habitual residence in Switzerland was made in the context of proceedings based on the application of the Convention on the Civil Aspects of International Child Abduction. It emphasizes that, in making their decisions, the national courts based their reasoning on the State party’s obligations under that Convention since it had been established that C.A.K.O.’s country of habitual residence was Switzerland and that he was being wrongfully retained in the State party. It claims that the author is seeking to have the Committee act as an appellate body whose purpose is to correct hypothetical errors of law allegedly made by the national courts in interpreting and applying the national and international law in force for the State party. It adds that the author is asking the Committee to reconsider the facts that gave rise to the legal proceedings and to rule in her favour, which would involve the Committee acting as an appellate body. The State party argues that reconsideration of the facts does not fall within the remit of the Committee, which must limit itself to assessing the State party’s conduct with respect to its obligations under the Convention and the Optional Protocols thereto on the basis of the facts as already established by the State party’s courts.7 In the light of the foregoing, the State party is of the view that the Committee does not have the jurisdictional power to grant the author’s requests.
- The State party cites U.A.I. v. Spain (CRC/C/73/D/2/2015), para. 4.2, and A.R.G. v. Spain (CRC/C/85/D/92/2019), para. 4.2. ↩
With regard to article 7 (f) of the Optional Protocol, the State party argues that the author has not provided sufficient arguments to establish a prima facie case for violations of the Convention or the Optional Protocols by the national courts. It claims that this is because: (a) the national courts, in their application of the Convention on the Civil Aspects of International Child Abduction, have not ruled on the question of the custody of C.A.K.O.; (b) the national courts have issued a reasoned decision explaining why the exceptions set forth in article 13 of the Convention are not applicable in the present case; and (c) the best interests of C.A.K.O. were duly considered and protected throughout the proceedings.
On point (a), the State party maintains that the author’s communication is based on the erroneous factual assumption that the national courts would place C.A.K.O. in the personal care of his father, thereby forcibly separating him from his mother. The State party recalls that child custody is not determined on the basis of the application of the Convention on the Civil Aspects of International Child Abduction, the purpose of which is to prevent and/or redress situations in which a child or adolescent who has been wrongfully removed to another State is not returned to his or her State of habitual residence. It maintains that the intention underpinning the Convention is that, once the child is returned, the parties seeking custody should do so before the competent authorities of the State where the child had his or her habitual residence before being removed and that this is why article 16 of the Convention provides that custody proceedings under way in the State in which the child is being wrongfully retained should be suspended.8
- The State party extensively cites Elisa Pérez-Vera, Convention on the Civil Aspects of International Child Abduction: Explanatory Report (Madrid, April 1981), paras. 11–19, available at https://www.hcch.net/en/publications-and-studies/details4/?pid=2779. ↩
The State party submits that the First Family Court of Santiago assessed all the facts and evidence in the case, including the ruling of the Court of First Instance of Hinwil, Switzerland, that had established the de facto separation of the parents, set the maintenance to be paid by the father and placed C.A.K.O. in the personal care of his mother. On the basis of this evidence, the First Family Court determined that, although C.A.K.O. remained in the custody or guardianship of the author, the two parents had equal guardianship rights and responsibilities and should decide jointly upon future matters concerning C.A.K.O., including the question of his place of residence, and that the consent of both parents was required in order to change the child’s place of residence to a foreign country. In the light of the foregoing, the Court determined that the retention of C.A.K.O. was unlawful. The State party points out that the author availed herself of various procedural remedies, including an appeal, a petition of complaint and an application for constitutional review, all of which confirmed the facts as established by the Court. The State party emphasizes that the national courts did not rule on the right to custody of C.A.K.O., which remains exclusively with the author, nor on any potential separation from his mother. It adds that, in order to ensure that C.A.K.O. returned to Switzerland safely alongside his mother, the Central Authority of the State party had actually contacted the Swiss State Secretariat for Migration, which had confirmed that it would authorize the prompt issuance of a visa to the author and that she would have no problem obtaining a residence permit, since she continued to receive child support. It stresses that the Central Authority confirmed that there were no criminal proceedings against the complainant that would lend credence to concerns that she would be arrested upon her arrival in Switzerland.
On point (b), relating to the first exception to the duty to return under article 13 (a) of the Convention on the Civil Aspects of International Child Abduction, the State party argues that the author was unable to prove either that she had sole custody of C.A.K.O. or that the child’s father had consented to his remaining in Chile. It reiterates that, on the basis of the evidence provided, the court of first instance found that the two parents remained joint and equal guardians. According to the State party, this meant that they were required to decide jointly on all future issues concerning the child, including the question of his place of residence. In view of the foregoing, the State party maintains that the exception established in article 13 (a) of the Convention was not applicable since the father also had a right to custody and had not consented to the child’s country of residence being changed to Chile.
On the same point, and in relation to the second exception to the duty to return established in article 13 (b) of the Convention on the Civil Aspects of International Child Abduction, the State party indicates that, on the basis of the evidence provided, the court of first instance was not convinced that C.A.K.O. had been sexually abused, much less that his father was the perpetrator of the alleged acts. It adds that, as the Court had concluded, even if C.A.K.O. had been abused, keeping him in the State party would not be the only protective measure possible and to assume so would be to disregard the possibility of the Swiss judicial or administrative protection authorities taking the necessary child protection measures. The Court determined that the child’s psychotherapy could continue in Switzerland and that, since the abuse had allegedly occurred there, it was in Switzerland where more extensive evidence would be available and, therefore, where the allegations would be most effectively investigated and, following the rules of due process, the most appropriate child protection measures adopted. The State party adds that, according to the Swiss Central Authority, an expert from the Swiss child rights protection agency had confirmed that C.A.K.O. would receive full support, including the benefit of various protective and support measures, from the day of his return. In view of the foregoing, the State party maintains that the author failed to prove that there was a serious risk that C.A.K.O.’s return would expose him to grave physical or psychological harm or otherwise place him in an intolerable situation, as required under article 13 (b). It emphasizes that the evidence available and the protective measures prepared in advance of C.A.K.O.’s return constituted sufficient guarantees of his safety after being returned to Switzerland. The State party adds that the complaint filed by the author with the Eastern Metropolitan Regional Attorney General’s Office of Chile on 2 May 2017 was referred to Office of the Public Prosecutor No. IV of the Canton of Zurich, where criminal proceedings were brought against C.A.K.O.’s father for the offence of sexual abuse. Through her legal counsel, the author attended and submitted evidence in these proceedings. However, the complaint was dismissed on 15 April 2019, and the decision to dismiss the case was upheld by the Swiss Federal Court on 28 April 2020.
On point (c), the State party claims that it is fully aware of, and complies with, its obligation under article 3 (1) of the Convention.9 It claims that the national courts, including the Supreme Court, took C.A.K.O.’s best interests into account throughout the proceedings. According to the State party, the proceedings demonstrate that measures were adopted to ensure that C.A.K.O.’s best interests were taken into consideration, in keeping with general comment No. 12 (2009) (para. 70). The State party indicates that various safeguards were in place to protect C.A.K.O.’s best interests. For example, qualified professionals were extensively involved in the proceedings on the request of the author and the court itself,10 decisions were taken in the shortest time possible, in accordance with the simplified procedure under the Convention on the Civil Aspects of International Child Abduction,11 the decisions of the court of first instance, the Court of Appeal and the Supreme Court were duly substantiated and reasoned,12 and the author had access to mechanisms allowing her to file an appeal or request a review of all such decisions.13 The State party adds that all the guarantees in place during the declaratory restitution proceedings were also in place for the enforcement proceedings, during which C.A.K.O.’s best interests were the paramount consideration and all possible safeguards were in place to ensure his safe return, accompanied by the author.
Author’s comments on the State party’s observations on admissibility and the merits
In her comments of 27 April 2022 on the State party’s observations on the admissibility and merits of the communication, the author argues that the decision to return C.A.K.O. to Switzerland was not taken with due consideration for the Convention and that priority was instead given to the Convention on the Civil Aspects of International Child Abduction. She adds that the decision was based exclusively on the fact that Switzerland was C.A.K.O.’s country of habitual residence according to a purely legal interpretation that ignored the reality of the situation, since his domicile is in the State party, where he has been living for almost five years. She adds that the courts did not duly consider whether any of the grounds for opposing his return established in the Convention on the Civil Aspects of International Child Abduction applied.
The author reiterates that C.A.K.O. was placed in her personal care and that she did not share parental authority with the child’s father. She reiterates that the national courts did not take due account of the myriad pieces of evidence that point to the serious consequences of placing C.A.K.O. in the grave and intolerable situation that returning him to his father would entail, which would include renewed exposure to the sexual abuse to which his father had previously subjected him. She insists that C.A.K.O.’s well-being is more important than his father’s rights. The author maintains that the various reports submitted give a detailed account of the treatment and support that C.A.K.O. has been receiving, which is gradual and requires that small steps be taken over a long period of time, and that C.A.K.O. may suffer setbacks if he is exposed to unexpected changes or feels unsafe. She adds that these reports constitute serious and credible evidence of the grave risk that C.A.K.O. would face if he were returned to Switzerland. She stresses that the report submitted is not a simple psychological assessment but rather the work of a diverse team of professionals from a prestigious accredited mental health facility who identified the psychological harm suffered by C.A.K.O., which had been inflicted prior to his arrival in the State party and which he associates with his father and his life in Switzerland. The author emphasizes that, at present, C.A.K.O. is better protected and safer in her family environment and that it does not seem reasonable to separate him from his mother.
The author argues that courts are under an obligation to anticipate the possible effects of their decisions, taking into account the best interests of the child. In the present case, the return of C.A.K.O. to Switzerland would involve a drastic and sudden change to his current day-to-day routine, and the possibility that he might even be separated from his mother once returned to Switzerland, which would destabilize him and deprive him of the highest possible level of protection, should not be excluded.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the communication is admissible under the Optional Protocol.
The Committee notes that the State party has not raised any objections regarding the requirement to exhaust domestic remedies, and it therefore concludes that article 7 (e) of the Optional Protocol does not constitute an obstacle to the admissibility of the communication.
The Committee notes the State party’s arguments that the author’s communication should be declared inadmissible under article 7 (c) and (f) of the Optional Protocol (see para. 4.1). In this regard, the State party argues that the Committee is not competent to correct alleged errors of law in the interpretation and application of the rules of national and international law in force for the State party or to review facts established by the national courts (see para. 4.2). The State party also argues that the present communication does not set forth sufficient arguments to establish a prima facie case for violations of the Convention (see para. 4.3).
The Committee also notes the author’s claims that the decision to return C.A.K.O. to Switzerland: (a) was taken by the State party’s courts without consideration of the best interests of the child, since it means that he will be returned to his alleged aggressor, in violation of article 3 of the Convention (see para. 3.2); (b) entails the author’s separation from C.A.K.O., in violation of article 9 of the Convention (see para. 3.3); (c) violates article 11 of the Convention, given that C.A.K.O. resides in the State party and was not wrongfully removed or retained (see para. 3.4); and (d) entails a violation of article 19 of the Convention insofar as it would expose C.A.K.O. to ill-treatment by his father (see para. 3.5).
The Committee recalls that, as a general rule, it is for national bodies to examine the facts and evidence and to interpret domestic law, unless such examination or interpretation is clearly arbitrary or amounts to a denial of justice.14 Thus, in cases of the international return of children, it is not the Committee’s role to decide whether the Convention on the Civil Aspects of International Child Abduction has been correctly interpreted or applied by the national courts, provided that its interpretation or application is in accordance with the obligations established by the Convention on the Rights of the Child.15 The Committee recalls, firstly, that, in ruling on cases involving the international return of children, national courts must effectively assess the factors that may constitute an exception to the duty to immediately return the child, in particular when such factors are raised by one of the parties to the proceedings, and must issue a sufficiently reasoned decision on this point.16 Secondly, these factors must be evaluated in the light of the best interests of the child, and this evaluation is dependent, to a large extent, on factual determinations that, as a general rule, fall under the jurisdiction of national courts.17
In the present case, the Committee notes that the author’s claims are based on a number of unsubstantiated factual assumptions, specifically: that the author had the right to unilaterally decide on C.A.K.O.’s place of residence and that he was therefore neither abducted nor wrongfully retained (see paras. 3.1, 3.4 and 5.1); that the child was sexually abused by his father (see paras. 3.1, 3.2, 3.5 and 5.2); and that returning the child to Switzerland would mean separating him from the author and returning him to his father, which would put him at risk of irreparable harm (see paras. 3.1, 3.3, 3.6, 5.2 and 5.3). The Committee notes that these factual assumptions are not borne out by the facts established by the national courts on the basis of available evidence and extensive reasoning (see paras. 4.5–4.7). In particular, the Committee notes that the national courts found that both parents retained the right to decide on C.A.K.O.’s place of residence and that his stay in the State party therefore constituted unlawful retention within the meaning of the Convention on the Civil Aspects of International Child Abduction (see paras. 4.5 and 4.6); that the allegations of sexual abuse were unproven and, in the event that the allegations were substantiated, the Swiss authorities were ready to take the necessary protective measures after restitution (see para. 4.7); and that all necessary steps were taken to ensure that the author could return to and remain in Switzerland (see para. 4.5 ). The Committee considers that, although the author disagrees with the decisions taken by the national courts, she has not demonstrated that the examination of the facts and evidence by these authorities was clearly arbitrary or amounted to a denial of justice. The Committee also considers that the author has not sufficiently demonstrated, for the purposes of admissibility, that the decisions of the national courts failed to take due account of the best interests of the child. The Committee is of the view that the national courts explained in detail why the exceptions to the duty to return were inapplicable in the light of the specific circumstances of the case, in particular, given the unsubstantiated nature of the claims of sexual abuse by the father, and determined that the protective measures prepared in advance of the return constituted sufficient guarantees for the child’s safety upon return. Consequently, the Committee considers that the present communication has not been sufficiently substantiated and declares it inadmissible under article 7 (f) of the Optional Protocol.
Accordingly, the Committee decides: (a) That the communication is inadmissible under article 7 (f) of the Optional Protocol;