Facts
K. and B. were married on 24 October 1988. On 2 October 1989, B. gave birth to their daughter C. On 27 February 1992, K. filed for divorce with the District Court of St. Gallen, to which B. responded on 2 March 1992 by also requesting a divorce. In the spring of 1992, B. moved with the child to T., Italy, the place of residence of her parents. Criminal proceedings were initiated against K. on suspicion of sexual acts with his daughter, which are not yet closed. The Cantonal Court of St. Gallen pronounced the divorce (point 1 of the ruling) and awarded parental authority to the mother (point 2). It granted the father a right of access accompanied by three times five consecutive days per year, to be exercised at the father's residence, from 9 a.m. to 8 p.m. (point 3a). To monitor this right, the Cantonal Court ordered a guardianship under Art. 308(2) CC (point 3b) and instructed the mother to ensure that the child is picked up and returned by the father at the place designated by the guardian (point 3c).Considerations
The ex officio principle applies to the attribution of children and directly related issues, which does not, however, result in the admissibility of new facts and evidence in the appeal procedure to the FC. In this respect, Art. 55(1)(c) FSCA is applicable.
Although the suspicion of sexual abuse of the child by the father is concrete, this does not mean that the right of access must be simply refused. Indeed, the right of access is intended not only for the interest of the parent who does not have parental authority, but also for that of the child. The complete withdrawal of this right can therefore only be ordered if the harmful effects of personal contacts cannot be contained within acceptable limits for the child.
Thus, in the case of a child still of tender age at the time of the divorce, it may be compatible with his or her well-being not to prevent all personal…