US embassy cable - 05VIENNA28

UNCLAS VIENNA 000028 
 
SIPDIS 
 
DEPT FOR CA/OCS/CI & MBERNIER-TOTH AND GDEBOER 
 
E.O. 12958: N/A 
TAGS: CASC, KOCI, AU 
SUBJECT: AUSTRIA ORDERS ANOTHER HAGUE RETURN ENFORCED & 
GIRL TO BE RETURNED TO POLISH FATHER DESPITE CLAIM OF 
"GRAVE RISK" 
 
REF: (A) VIENNA 4198   (B) VIENNA 4200 
 
1.  SUMMARY: AUSTRIAN COURTS HAVE AGAIN ORDERED THE 
RETURN OF A CHILD UNDER THE HAGUE CONVENTION, THIS TIME 
TO HER FATHER IN POLAND.  THIS MARKS THE THIRD TIME IN 
2004 THAT THE AUSTRIAN GOVERNMENT HAS ORDERED THE RETURN 
OF A CHILD UNDER THE HAGUE CONVENTION, DESPITE INVOCATION 
OF ARTICLE 13B, WHICH CONCERNS THE POSSIBLE "GRAVE RISK" 
WHICH COULD OCCUR BECAUSE OF A RETURN.  THIS IS ALSO THE 
SECOND TIME IN AS MANY MONTHS THAT A LITTLE GIRL WAS 
ORDERED RETURNED TO HER FATHER.  THIS MAY BE THE LAST 
HAGUE RETURN CASE IN AUSTRIA TO BE HEARD BY A REGULAR 
COURT ?S OF JANUARY 1, 2005, ONLY 16 SPECIALLY 
DESIGNATED COURTS WHICH HAVE RECEIVED SPECIAL TRAINING 
WILL HANDLE HAGUE RETURN CASES. END SUMMARY 
 
2.  ACCORDING TO THE SUPREME COURT DECISION, LITTLE 
"ANITA J." WAS ABDUCTED BY HER MOTHER IN JULY 2003, AND 
BROUGHT TO AUSTRIA, WHERE THE MOTHER'S SISTER WAS 
WORKING.  THE PARENTS HAD BEEN LIVING APART WHILE THE 
MOTHER WORKED ABROAD. ANITA WAS BEING RAISED BY HER 
FATHER, AN AGRICULTURAL WORKER.  THE MOTHER RETURNED HOME 
FOR A SHORT VISIT AND WHILE THE FATHER WAS TEMPORARILY 
AWAY, TOOK THE CHILD TO AUSTRIA.  SHE THEN FILED FOR 
DIVORCE IN POLAND IN SEPTEMBER 2003, AND WAS ULTIMATELY 
GRANTED CUSTODY, BUT THE DIVORCE DECREE HAS NOT YET BEEN 
FINALIZED. 
 
3.  THE CASE MOVED EXTRAORDINARILY QUICKLY COMPARED TO 
OTHER HAGUE CASES IN AUSTRIA.   THE FATHER DID NOT FILE 
FOR RETURN UNDER THE HAGUE CONVENTION UNTIL SOME TIME 
AFTER THE MOTHER FILED FOR DIVORCE, BUT BEFORE THE 
CUSTODY DECISION BECAME FINAL IN JANUARY 2004.  THEN, ON 
JANUARY 28, 2004, THE AUSTRIAN LOWER COURT RULED AGAINST 
A RETURN, CITING ARTICLE 13B BASED ON THE MOTHER'S CLAIMS 
THAT THE FATHER ABUSED ALCOHOL AND THREATENED THE CHILD. 
THE FATHER WAS NOT HEARD IN COURT, AND THE TRANSLATOR FOR 
THE CHILD WAS THE CHILD'S OWN MATERNAL AUNT.   AN APPEALS 
COURT NONETHELESS UPHELD THIS DECISION ON MARCH 3, 2004, 
AND DISMISSED THE FATHER'S ASSERTION THAT HE HAD NOT BEEN 
HEARD IN COURT.  ON OCTOBER 29, 2004, THE AUSTRIAN 
SUPREME COURT RULED IN FAVOR OF AN EXTRAORDINARY APPEAL 
(THE APPEALS COURT HAD INITIALLY RULED OUT FURTHER 
APPEALS) AND ORDERED THE LOWER COURT TO REVIEW THE CASE 
AND TO VERIFY THE MOTHER'S CLAIMS, AS REQUESTED BY THE 
FATHER. 
 
4.  THE SUPREME COURT RULING EMPHASIZED THAT THE 
CONVENTION IMPLIES THAT THE RETURN IS IN ITSELF GOOD FOR 
THE CHILD'S WELL-BEING, AND THEREFORE THE MERE RETURN 
CANNOT ITSELF BE GROUNDS FOR INVOKING ARTICLE 13B.  IT 
ALSO CITED THE PURPOSE OF THE CONVENTION IN DETERRING 
ABDUCTION BY FACILITATING THE RETURN OF THE ABDUCTED 
CHILD.  THE SUPREME COURT CONCURRED WITH THE FATHER'S 
REQUEST THAT THE MOTHER'S ALLEGATIONS SHOULD FIRST BE 
VERIFIED.  THE FATHER CLAIMS THE MOTHER IS LIVING 
ILLEGALLY IN AUSTRIA, AND ALSO ABUSES ALCOHOL.  THE CASE 
WAS ULTIMATELY REMANDED TO THE LOWER COURT FOR SOCIAL 
CIRCUMSTANCE REPORTS ON BOTH PARENTS' LIVING CONDITIONS, 
AS PROVIDED FOR IN ARTICLE 13.  THE AUSTRIAN SOCIAL 
WORKERS HAVE ALREADY COMPLETED THEIR REPORT; THE POLISH 
REPORT IS PENDING.  IT IS POSSIBLE THAT BY THE TIME THAT 
REPORT IS COMPLETED THE POLISH DIVORCE DECREE GIVING THE 
MOTHER CUSTODY WILL ALREADY HAVE BECOME FINAL, ALLOWING 
THE MOTHER TO TRAVEL TO POLAND AND TAKE BOTH LEGAL AND 
PHYSICAL CUSTODY OF THE GIRL. 
 
5.  EMBASSY COMMENT: IT IS INTERESTING THAT THE AUSTRIAN 
SUPREME COURT HAS FINALLY STATED CLEARLY FOR THE BENEFIT 
OF LOWER AUSTRIAN COURTS THAT ARTICLE 13B ?HICH 
PROVIDES THAT A RETURN MAY BE DENIED IN CASES WHERE THE 
CHILD WOULD BE PUT IN GRAVE RISK IF RETURNED ?OES NOT 
APPLY MERELY BECAUSE THE CHILD WOULD BE (ONCE AGAIN) 
UPROOTED FROM HIS/HER CURRENT HOME (THUS OTHERWISE 
REWARDING THE ABDUCTOR FOR CREATING THE STATUS QUO).  WE 
NOTE THAT AS OF JANUARY 1 OF THIS YEAR ALL HAGUE RETURN 
CASES ARE CONSOLIDATED INTO 16 COURTS, WHICH HAVE ALREADY 
RECEIVED SPECIAL TRAINING ON THE HAGUE CONVENTION. 
 
6.  EMBASSY COMMENT CONTINUED: THE REPORTING IN THIS 
CABLE WAS FACILITATED BY THE EXTRAORDINARY COOPERATION WE 
RECEIVED FROM THE AUSTRIAN COURTS.  THE SUPREME COURT 
FAXED US A COPY OF THE COURT'S DECISION UPON OUR REQUEST, 
AND THE LOWER COURT READILY PROVIDED US WITH AN UPDATE ON 
THE STATUS OF THE CASE WHEN WE CALLED.  END COMMENT. 
 
BROWN