Abduction in Norway — Legal Grounds for Refusal

Summary of this page

This page describes the legal grounds used by Norway to refuse the father’s petition for return of the child under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. It summarises the Convention’s provisions on when return may be refused (Articles 3, 12, 13, 20), the outcome of the Oslo District Court proceedings (2016), and lists documents submitted by the father and documents submitted by the mother in the Oslo case, stored in ca/abduction/oslo/.

Legal references are taken from the Convention text and from the Norwegian court verdict; document lists are drawn from the ca/abduction/oslo/ directory.

Under the Hague Convention of 25 October 1980, return of a wrongfully removed or retained child is the main rule. The Convention nevertheless allows the requested State to refuse return in certain situations. The main provisions are summarised below; the full text is in hague-convention-on-international-child-abduction.pdf and at HCCH.

Article 3 — When removal or retention is “wrongful”

Return is only due if the removal or retention is wrongful. Under Article 3:

The removal or the retention of a child is to be considered wrongful where —

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

If the child was not habitually resident in the requesting State immediately before the removal or retention, or if the applicant did not have rights of custody that were being exercised, then the removal or retention is not wrongful and the court will not order return. Norway refused the petition on this ground (habitual residence), as set out below.

Article 12 — Return and “settled” exception

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

So after one year, the court may refuse return if the child is shown to be “settled” in the new environment. Norway did not base its refusal on Article 12 in this case; it found that the removal was not wrongful under Article 3.

Article 13 — Defences: consent/acquiescence, grave risk, child’s objections

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that —

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In the Oslo case, the mother argued in the alternative that return should be denied under the Norwegian equivalent of Article 13(b) (grave risk: separation from the mother would be so traumatic for the child that it could not be accepted). The court did not rule on that point because it had already found that there was no wrongful removal under Article 3.

Article 20 — Human rights

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

Source: Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, HCCH; local copy: ca/abduction/oslo/Lawyers/hague-convention-on-international-child-abduction.pdf.

Norway’s refusal: Oslo District Court (2016)

The father filed a petition for return with the Norwegian Department of Justice in September 2015. The case was transferred to Oslo District Court; an oral hearing took place on 12 April 2016. On 18 April 2016 the court refused the petition (case 16-044526TVI-OTIR/08).

Legal ground given by Norway to refuse return

The court applied the Norwegian Act concerning the abduction of children (§ 11 and § 12), which implements the Hague Convention. It found that a prerequisite for “wrongful” abduction is that the child was habitually resident in France immediately before the removal to Norway. After evaluating the facts (length and nature of stays in France, civil register, employment, lease, lack of a final agreement on moving to France), the court concluded that the child’s stay in France from December 2014 to July 2015 was temporary, not a change of habitual residence. The child’s habitual residence remained Norway. Therefore there was no unlawful abduction within the meaning of the Act § 11 (Article 3 of the Convention), and the petition for return was denied.

The court expressly did not take a position on other requirements, including whether the father had parental responsibility under French law. The mother had also argued that return should be denied under § 12 letter b (grave risk: separation from the mother would be so traumatic for the child that it could not be accepted); the court did not rule on that defence because it had already refused return on the habitual-residence ground.

Source: Oslo District Court verdict, 18.04.2016, case 16-044526TVI-OTIR/08 — see Oslo District Court verdict (Norwegian, French, English) below.

Documents submitted by the father (ca/abduction/oslo/)

The following files in ca/abduction/oslo/ are documents provided or used by the father in the Oslo proceedings (petition for return, identity, home and work attestations, lawyers, police, health and invoices relating to the child’s stay in France, correspondence).

Open the ca/abduction/oslo/ directory.

Documents submitted by the mother (ca/abduction/oslo/)

The following files in ca/abduction/oslo/ are documents that relate to or were submitted by the mother in the Oslo proceedings (identity, social security, mediation). The mother’s response to the petition and her court submissions are reflected in the court verdict; the documents below are those held in the directory that are in the mother’s name or that relate to her position.

  • ID/rachael_brooke_certificate_of_birth.pdf — Mother’s birth certificate.
  • ID/passeport_rachael_brooke.pdf — Mother’s passport.
  • ID/international_birth_certificate_eleonore.pdf — Child’s international birth certificate.
  • ID/fødselsattest.pdf — Norwegian birth certificate (fødselsattest) for the child.
  • Mother also submitted flight tickets, saying to court her relocation in France was temporary. But father proved to the court that she never took and intended to take the flight to France. to take return flight (it was just cheaper to take a flight with return than a one way flight). But it seems that Norwegian's judge considered that mother was on "holiday" in France, and that she was not "habitually resident" in France. Judge considered that as the mother was not "habitually resident" in France, the child was not "habitually resident" in France.

The mother’s full legal grounds for opposing return (habitual residence in Norway, parental responsibility, and in the alternative Article 13(b) grave risk) are set out in the Oslo District Court verdict; see Oslo District Court verdict (Norwegian, French, English) below.

Other Documents (ca/abduction/oslo/)

The following files in ca/abduction/oslo/ are other documents relating to the Oslo proceedings (mediation, international mediation response).

  • norwegian central authorities also submitted mediation documents, showing that the father was willing to mediate the case, and that the mother was not willing to mediate the case.

    • Oslo District Court verdict (Norwegian, French, English, German)

    Verdict of the Oslo District Court, 18 April 2016, case 16-044526TVI-OTIR/08 — refusal of the petition for return of the child. The verdict is available in the following languages (ca/abduction/oslo/judgment/):

  • Court refused the petition for return of the child, because the mother was not "habitually resident" in France, indeed Mother had no work and place to live in France, but also in Norway, and that the child was not "habitually resident" in France! Judge considered that as the mother on "holiday" in France.
    Meaning that whatsoever the child was living with the father in France, french documents, attestations, home, health, school, etc. were rejected, only the fact that the child was born in Norway mattered, and even if the mother herself registered the child at a local school in France, PMI, CAF, etc., the child was not "habitually resident" in France.
    For those reasons, Judge considered that the child was not "habitually resident" in France.
    Judge asked the father to remove her complaint for kidnapping with violence from the court, for the father to be granted visitation rights.

    • Lawyers and mediation (Oslo) — documents in ca/abduction/oslo/Lawyers/ (consultation, legal aid, Convention text, mediation).
    Reaching Central Authorities — timeline and legal grounds for contacting Central Authorities (France, Norway, Germany).
    Abduction in Germany — legal and administrative aspects of the case after the child was moved to Germany.
    ca/ — root directory for documents sent to or from Central Authorities and related proceedings.