More from the appeal judgement...

More on the judgement: "...and did not demonstrate behaviour demonstrating his acceptance of the mother’s retention of the child in Bulgaria.

Notwithstanding the above, the court of appeal finds that in this particular case there are grounds to refuse the return of the child within the meaning of article 13, paragraph 1, letter “b” of the Convention. This article sets out that the competent authority of the requested state is not bound to order the return of the child if the body which opposes the return establishes that there is a grave risk that the return of the child would expose him to physical or psychological harm or otherwise place the child in an intolerable situation.

When judging the existence of the above negative prerequisite for the return of the child in his country of habitual residence before the wrongful retention, the court is being led by the child’s interest. The child’s interest, as a principle of paramount importance for solving the matters with regard to the rights of custody, is set out in the preamble of the Hague Convention and is a primary matter of the regulations governing the relations between parents and children in the family laws of the Republic of Bulgaria.

For the sake of completeness, it should be noted there is a grave risk that the return of the child (Nikki). would expose him to physical or psychological harm. It was established that the father does not have a family environment suited to the child’s upbringing, and furthermore in respect of him there are actions threatening child’s health. The fact that there is no criminal conviction against the father does not mean a lack of possibility to treat the child roughly. The child himself does not want to contact him and runs away holding his mother’s hand. The court believes this is an act of seeking support and security in his mother and the court established that he feels strong attachment to her.
Upon consideration of the interest of the child (Nikki), the court finds that the return of the child in the Republic of South Africa would place him in an intolerable situation within the meaning of article 13, paragraph 1, letter “b” of the Convention. This is a case of a child at young age – four years, who is strongly attached to his mother taking immediate care of his upbringing, as well as to the mother’s extended family in Bulgaria, and therefore his detachment from the mother and the environment in Bulgaria would have extremely adverse effect on the child. Child’s possible return to the Republic of South Africa and the respective detachment from the mother and the established peaceful environment in which the child grows in Bulgaria, would be a shock for the child and poses a risk of adverse effect on his mental, emotional and social development. The court took into account the conclusions to this effect made by the social services at child’s domicile. It should be noted that the child has spent very short time in South Africa with his father. The mother who has brought him up has lived in a city other than the father’s city, and logically the child has built stronger connection to his mother. Currently, despite his removal to Bulgaria, the child grows in an environment that is extremely peaceful and suitable for his development, he develops properly, and therefore the radical change upon his removal to the South Africa would be a shock with adverse consequences for him. It should be further noted that in case of possible return of the child to the country of his previous residence, he would be detached from the mother in a period where the connection between them is of greatest importance for his peace, security and proper development.

Upon realisation of the prerequisite under article 13, paragraph 1, letter “b” of the Convention, the court should refuse the return of the child (Nikki) to the country of his habitual residence – Republic of South Africa, and the claim of the father (Paul) for return of the child is subject to repeal.

Due to the discrepancy between the conclusions of this court of appeal and those of the first instance court, the appealed decision should be repealed, and another one should be enacted instead to repeal the petitioner’s claim.

With view of the provisions of article 22г, paragraph 2 of the Child Protection Act, this decision is final and is not subject to appeal.
Based on the above background, the court

DECIDED AS FOLLOWS:
REPEALS decision № 5016 of 24.07.2018 enacted under civil case № 1068/2018 as per the inventory of Sofia City Court, 4th Matrimonial Division, and ENACTS:

REPEALS the claim of (Paul) [date of birth], citizen of the Republic of South Africa filed through the Ministry of Justice of the Republic of Bulgaria on the grounds of article 12, paragraph 1 of the H. Convention on the Civil Aspects of International Child Abduction of 1980, for return of the minor child (Nikki) PIN [PIN] to the country of his habitual residence – Republic of South Africa.

This decision is final and is not subject to appeal.

Read in context of: https://mrpaulmulder.blogspot.com/…/additional-conclusion-t…

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