Return of children after wrongful international removal: dismissal of appeals against the return order in Australia (HC80, exception under Art. 13 para. 1 let. b and the child's objection)

Facts

The parties, unmarried parents of two children born in 2011 and 2013 (Swiss and Australian nationalities), lived in Western Australia where the children were settled in [U.] . In 2017, they entered into agreements (an unsigned "Minute of consent orders" and a "Limited child support agreement") providing for joint parental authority and shared custody.

In September 2017, the mother learned that her mother ([E.] ), residing in Switzerland, was suffering from a terminal illness. The parties decided to temporarily settle in Switzerland. The father did not obtain a residence and work visa.

On 28 March 2018, the parties, assisted by Australian counsel, signed a "Parenting plan" providing in particular that the mother could leave Australia with the children on 2 April 2018 for a temporary stay in Switzerland, and that the children were to return to [U.] no later than 14 April 2020, the date on which joint custody would resume. The plan specified that any stay in Switzerland beyond that date would constitute a wrongful non-return and that the courts of Western Australia had jurisdiction.

The mother and the children arrived in Switzerland on 2 April 2018 and were enrolled in school in the canton of Vaud. In September 2018, the mother initiated child protection and maintenance proceedings before the Tribunal d'arrondissement de La Côte. The mother of the appellant died in October 2018.

A first return request by the father, filed in November 2018 with the FOJ and then in February 2019 before the Chamber of Guardianship of the Vaud Cantonal Court, was dismissed on 26 March 2019. The Federal Supreme Court, in its judgment 5A_301/2019 of 25 June 2019, confirmed this dismissal, considering that the sole ground of wrongfulness was the 14 April 2020 deadline.

On 21 April 2020, the father filed a new return request. A curator for the children was appointed, and the SPJ issued a report on 25 May 2020 stating that the children were well integrated in Switzerland and opposed the return. The delegated judge rejected the father's request to be heard by video conference. A hearing took place on 4 June 2020; the mother and the curator left the matter to the court's discretion as regards hearing the children, which was not ordered.

By judgment of 25 June 2020, the Chamber of Guardianship ordered the return of the children to Australia and directed the mother to ensure this return by 15 August 2020, under the threat of the penalty under Art. 292 SCC.

The mother (5A_548/2020) and the children (5A_551/2020, represented by the curator) appealed to the Federal Supreme Court. The mother requested that the return not be ordered and that the children be authorised to remain in Switzerland with her; the children requested, principally, the suspension of the return pending a child psychiatric expert report, and, in the alternative, authorisation to remain in Switzerland. The proceedings were joined and the return order was suspended.

The Federal Supreme Court declared inadmissible the medical certificate of 2 July 2020 (child psychiatrist) as constituting a novum (Art. 99 para. 1 FSCA).

Considerations

The decision ordering the return of children after an international removal is a final decision in matters related to civil law (Art. 90, 72 para. 2 let. b no. 1 FSCA). The Chamber of Guardianship ruled as the sole cantonal instance under Art. 7 para. 1 ACAA, which constitutes a statutory exception to the double cantonal instance (Art. 75 para. 2 let. a FSCA). The appeals, filed in time by parties with standing to appeal, are admissible. The Federal Supreme Court reviews only properly raised complaints and the facts established by the prior authority (Arts. 42, 95, 97, 105 and 106 FSCA); appellate allegations are inadmissible, and novae are excluded (Art. 99 FSCA).

As regards the right of custody within the meaning of Art. 3 HC80, the father held joint parental authority under Australian law, including the decision on the children's place of residence. The "Parenting plan", on which the mother relied to justify her departure from Australia and her stay in Switzerland until 14 April 2020, produces legal effects; the mother cannot contest its binding force in the absence of judicial ratification. The non-return beyond 14 April 2020 is therefore wrongful within the meaning of Arts. 3 and 5 HC80. The complaint relating to the absence of an attestation within the meaning of Art. 15 HC80 is dismissed, this provision being discretionary.

As regards the exception under Art. 13 para. 1 let. a HC80, the father did not consent to the non-return beyond 14 April 2020. As for the effective exercise of custody rights, it is presumed, and the parent opposing it must demonstrate a manifest abandonment, which the evidence produced by the mother does not establish.

As regards the exception under Art. 13 para. 1 let. b HC80, only a grave risk of physical or psychological harm, or an intolerable situation, can prevent the return, the exceptions being interpreted restrictively (Art. 5 ACAA). The grievances relating to the father's partner and to the children's loss of trust in their father are not sufficient: the…