Facts
The case concerns a father, D. W., who took his two minor children on vacation without the mother's consent, despite ongoing divorce proceedings. The mother had left the marital home with the children in January 1989 and had requested a divorce, claiming custody of the children. The father took the children for a weekend, but took them on vacation for six weeks without authorization. The district court convicted him of abduction, detention, and failure to provide support, but the cantonal court overturned the abduction conviction, considering that the father had not infringed on the children's freedom.
The parties involved are
- The father, D. W.
- The mother
- The two minor children
- The Staatsanwaltschaft des Kantons St. Gallen (Public Prosecutor's Office)
The key dates are
- January 1989: the mother leaves the marital home with the children
- April 15, 1989: the father takes the children on vacation
- April 17, 1989: the mother obtains a court order granting her custody of the children
- January 12, 1990: the district court convicts the father
- September 4, 1990: the cantonal court overturns the abduction conviction
Considerations
The Federal Court examined whether the father's behavior constituted abduction within the meaning of Article 183 ch. 2 SCC, or whether it merely constituted a violation of Article 220 SCC, which protects parental rights. The Court considered that abduction implies an infringement on the victim's freedom, which was not the case in this matter, as the father had not infringed on the children's freedom.
The Court also examined the issue of ideal concurrence between Articles 220 and 183 ch. 2 SCC, and considered that the two articles protect…