US embassy cable - 05VIENNA493

UNCLAS VIENNA 000493 
 
SIPDIS 
 
DEPT FOR CA/OCS/CI AND EUR/AGS 
 
E.O. 12958: N/A 
TAGS: CASC, KOCI, AU 
SUBJECT: AUSTRIAN COURTS ORDER AGAINST HAGUE RETURN TO 
HUNGARY 
 
REF: PHILLIPS/CI EMAIL OF FEB 11, 2005 
 
1. SUMMARY:  In July 2004 Austrian courts ordered against 
the return of a child to her father in Hungary.  According 
to Supreme Court documents, the mother wrongfully retained 
the child in Austria when she failed to return the child 
after a scheduled summer visitation in 2003.  In 
conversations with the judge, the girl stated that her 
father hit her almost daily, that she was afraid of him, and 
that she would rather live with her mother in Austria.  The 
courts determined that the nine-and-a-half year old girl was 
old enough for her opinion to be taken into consideration, 
citing the "age of maturity" clause in Article 13 of the 
Hague Convention.  Interestingly, the courts did not cite 
Article 13B, grave risk, in reaching this decision.  They 
also reached their decision with unusual promptness. END 
SUMMARY. 
 
2.  The girl was born in Hungary on October 11, 1994. Her 
parents divorced in 2000.  Hungarian courts awarded the 
father sole custody, but in 2002 the parents agreed the 
mother would have visitation in Austria.  In June 2003 the 
mother took the child to Austria but did not return the 
child in July as expected.  Instead the mother attempted to 
file for full custody of the child through a Hungarian City 
Court.  The Hungarian City Court denied the mother's 
application for custody and ordered her to return the child 
within eight days.  The mother then applied for custody of 
the child through the Austrian Lower Court on September 25, 
2003. 
 
3.  On October 29, 2003 the father filed for return under 
the Hague Convention.  In the course of the proceedings, the 
girl told a child psychologist and a social worker that she 
was afraid of her father, that he hit her almost daily, and 
that she did not want to live with him.  The Austrian Lower 
Court rejected the father's application for return, citing 
Article 13 of the Convention, which provides for denial of 
the return if the child objects. 
 
4.  The Austrian Appeals Court supported the Lower Court's 
decision, arguing that, at the age of nine-and-a-half, the 
child was old enough to have her opinion taken into 
consideration.  The Appeals Court based this decision on a 
prior Austrian Supreme Court case from 1992, which had 
deemed a 10-year old boy mature enough to voice his opinion 
in court, per Article 13 of the Convention.  The Supreme 
Court, citing that the 1992 decision was still relevant and 
applicable, subsequently refused to hear the case because 
the there had been no procedural flaws in the Appeals court 
decision. 
 
5.  EMBASSY COMMENT: Austrian law has always provided that, 
in custody cases, the courts could take a child's opinion 
into consideration once the child has reached age 10. 
However, this ruling lowers the bar somewhat for Hague 
cases.  It is interesting to note that the court did not 
refer to Article 13B's provision on "grave risk". This 
suggests that the courts have learned not to cite this 
section of the Convention simply because of a child's 
integration into his/her new environment.  It is also 
interesting to note that the entire legal process took less 
than a year from initial filing to final appeal.  This is 
considerably less than Hague cases we have followed in the 
past. END COMMENT. 
 
BROWN