International child return is an extremely delicate legal process that applies when a child is wrongfully removed or retained in a country different from their habitual residence. The Hague Convention establishes a mechanism of cooperation between countries for the quick return of affected children. Below, we explain how we successfully handled a return case under this convention between Germany and Peru.

The Case: A German Father Seeks the Return of His Child Illegally Retained in Lima

In this case, my client, a German citizen, faced a very challenging situation when his Peruvian wife decided not to return to Germany with their minor child during a trip to Peru. This action constituted a wrongful retention under the Hague Convention, as the child was supposed to return to their habitual residence.

After attempting to resolve the conflict amicably, we reached out to the Central Authorities in both Germany and Peru to formally request the child's return. However, the mother refused to comply with the return request.

Initiation of the Judicial Process in Peru

Given the mother's refusal, we initiated a judicial process in Peru before the Family Courts. Although longer and more complex than the administrative route, it was the necessary next step to enforce the convention and ensure the child's return to Germany.

Defenses Used by the Mother and How They Were Overcome

During the judicial process, the mother tried to use the following common defenses in international child return cases under the Hague Convention:

• Grave risk (Article 13 of The Hague Convention): The mother argued that the child would face a grave risk if returned to Germany. However, as seen in the cases of Case N.° 850-2022-Tacna and Case N.° 3590-2015-Lima, the burden of proof was on her, and she failed to demonstrate a real risk that justified the retention.
• Emotional Manipulation: Similarly to Case N.° 3590-2015-Lima, it was demonstrated that the mother tried to negatively influence the child to reject the father. This was seen by the court as a strategy to justify the retention.
• Exequatur and Foreign Judgments: During the process, it was necessary to recognize a German custody judgment in Peru through the exequatur process, which is essential when seeking to enforce a foreign judgment in the country.

Documentation and Evidence Submitted

During the trial, we submitted all the official translations and apostilled documents required, such as custody orders and proof of residence in Germany. We also provided a psychological evaluation conducted by an official entity in Germany, duly apostilled, that demonstrated my client's suitability as a father and his ability to care for the child.

The Mother's Opposition: Allegations of Grave Risk

As often happens in these cases, the mother argued that the child would face "grave risk" if returned to Germany, a defense based on Article 13(b) of The Hague Convention. This article allows the return to be denied if it can be shown that the return poses a danger to the child.

However, in such cases, the burden is on the mother to provide solid evidence to convince the judge. Throughout the process, we successfully demonstrated that there was no such risk, presenting psychological reports and other evidence confirming that the child would be safe and well cared for by his father in Germany.

Case Conclusion: Success for Our Client

The judicial process was lengthy and reached the stage of cassation, but we finally succeeded in having the child returned to his father in Germany. This case shows that, although the return process can be complicated, a solid legal strategy and proper presentation of evidence can make all the difference.

In my experience, these types of cases require not only technical knowledge of the Hague Convention but also careful management of the judicial process, both in the administrative and judicial phases. The key is to be prepared with all necessary documentation, from official translations to apostilled evidence, and have a solid strategy to counter possible defenses such as the allegation of grave risk.