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CHILD ABDUCTION: RECENT JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

Published online by Cambridge University Press:  29 January 2015

Paul Beaumont ,
Katarina Trimmings ,
Lara Walker  and
Jayne Holliday
Paul Beaumont
Affiliation:
The Centre for Private International Law at the University of Aberdeen, [email protected], [email protected], [email protected] and [email protected]. Lara Walker is a Lecturer in Law at the University of Sussex.
Katarina Trimmings
Affiliation:
The Centre for Private International Law at the University of Aberdeen, [email protected], [email protected], [email protected] and [email protected]. Lara Walker is a Lecturer in Law at the University of Sussex.
Lara Walker
Affiliation:
The Centre for Private International Law at the University of Aberdeen, [email protected], [email protected], [email protected] and [email protected]. Lara Walker is a Lecturer in Law at the University of Sussex.
Jayne Holliday
Affiliation:
The Centre for Private International Law at the University of Aberdeen, [email protected], [email protected], [email protected] and [email protected]. Lara Walker is a Lecturer in Law at the University of Sussex.
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Abstract

This article examines how the European Court of Human Rights has clarified its jurisprudence on how the 1980 Hague Child Abduction Convention Article 13 exceptions are to be applied in a manner that is consistent with Article 8 of the European Convention on Human Rights. It also analyses recent case law of the European Court of Human Rights on how the courts in the EU are to handle child abduction cases where the courts of the habitual residence have made use of their power under Article 11 of Brussels IIa.

Keywords

Brussels IIa Regulationcase lawchild abductionconsistencyEuropean Court of Human RightsHague Convention on the Civil Aspects of International Child Abduction
Type
Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 1 , January 2015 , pp. 39 - 63
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 Hague Convention on the Civil Aspects of International Child Abduction 1980 (1980 Convention) preamble. There are 90 Contracting States to this Convention. For comprehensive information on the Convention see <www.hcch.net/index_en.php?act=conventions.text&cid=24>.

2 1980 Convention, arts 12(2), 13 and 20. The exceptions to returning the child are the child becoming settled due to the passing of time art 12(2); consent or acquiescence by the applicant art 13(1)(a); a grave risk that return will expose the child to harm or place him in an intolerable situation art 13(1)(b); the objection by a mature child art 13(2) and the violation of fundamental human rights art 20.

3 Schuz, R, The Hague Child Abduction Convention: A Critical Analysis (Hart 2013) 11Google Scholar and E Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention (1982 HCCH) (Pérez-Vera Report) para 113. However, in a case where the art 13(1)(b) exception has been established there is authoritative case law saying that the discretion to return should not be exercised, see Baroness Hale in Re D (A Child)(Abduction: Foreign Custody Rights) [2006] UKHL 51; [2007] 1 AC 619 at [55]; and in Re M (Children)(Abduction: Rights of Custody) [2007] UKHL 55; [2008] 1 AC 1288 at [45].

4 EC Regulation No 2201/2003 of 27 November 2003 concerning jurisdiction and recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [2003] OJ L338/1. (Brussels IIa)

5 Schuz (n 3) 19; Brussels IIa, art 60(e).

6 For a full analysis of whether there was a real need to tighten the 1980 Convention see Trimmings, K, Child Abduction within the European Union (Hart 2013)Google Scholar.

7 (App No 41615/07) ECHR 6 July 2010. The UK Supreme Court said that some of the reasoning of the Grand Chamber ‘had caused widespread concern and even consternation’, see In the Matter of S (a child) [2012] UKSC 10; [2012] 2 AC 257 (Lord Wilson giving the judgment of the Court at [37] citing the earlier decision of the Supreme Court in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144 [22]–[27]).

8 Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Convention and documents related to it are available at <http:// www.hcch.net/index_en.php?act=conventions.text&cid=24>.

9 (App No 41615/07) ECHR 6 July 2010, [138].

10 (App No 41615/07) ECHR 6 July 2010, [139].

11 (App No 41615/07) ECHR 6 July 2010, [139].

12 For example see: The Conclusions and Recommendations of the Sixth Special Commission on the Practical Operation of the 1980 Convention held in June 2011, paras 47–49, <http://www.hcch.net/upload/concl28sc6_e.pdf>; N Lowe, ‘A supra-national approach to interpreting the 1980 Hague Child Abduction Convention – a tale of two European Courts: Part 2: the substantive impact of the two European Courts’ rulings upon the application of the 1980 Convention’ [2012] IFL 170, 176; Schulz, A, ‘The enforcement of child return orders in Europe: where do we go from here?’ [2012] IFL 43, 45–7Google Scholar; Walker, L, ‘The Impact of the Hague Abduction Convention on the Rights of the Family in the Case-law of the European Court of Human Rights and the UN Human Rights Committee: The Danger of Neulinger’ (2010) 6 JPrivIntL 649, 665–71Google Scholar; Schuz (n 3) 27–9 and Paton, J, ‘The Correct Approach to the Examination of the Best Interests of the Child in Abduction Convention proceedings following the decision of the Supreme Court in Re E (Children)(Abduction: Custody Appeal)’ (2012) 8 JPrivIntL 547Google Scholar.

13 In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144 [22]–[27]; and In the Matter of S (a child) [2012] UKSC 10; [2012] 2 AC 257 [37]–[38].

14 In the Matter of S (a child) [2012] UKSC 10; [2012] 2 AC 257 [38].

15 (App No 27853/09) judgment of the Third Section on 13 December 2011, [2011] ECHR 2104; judgment of the Grand Chamber on 26 November 2013 <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-138992>.

16 Grand Chamber judgment, ibid [11].

17 ibid [9].

18 ibid [12].

19 ibid [15].

20 ibid [21].

21 ibid [25]–[26].

22 ibid [27]–[28].

23 ibid [30].

24 X v Latvia (App No 27853/09) ECHR 13 December 2011, [78]. For more information on the chamber decision see Beaumont, P and Walker, L, ‘Post Neulinger case law of the European Court of Human Rights on the Hague Child Abduction Convention’ in Permanent Bureau of the Hague Conference on Private International Law, A Commitment to Private International Law – Essays in honour of Hans van Loon (2013 Intersentia) 17, 19–21Google Scholar.

25 X v Latvia (App No 27853/09) ECHR 26 November 2013, [118]. It is excellent that the Grand Chamber revisited this line of case law so quickly. However, given the controversial decision in Neulinger and the various discussions and complaints (see nn 12, 13 and 14 above) it is disappointing that only the Czech Republic, Finland and Reunite made submissions in X urging the ECtHR to change its approach.

26 ‘Arguable claims’ is the standard set by the eight dissenting judges [2]. They claim that they are in ‘full agreement’ with the judges giving the main majority opinion on the ‘general principles’ to be applied to child abduction cases under the Hague Convention. The judgment of the eight judges giving the main majority opinion is much less clear on this point than the dissenters. The main majority opinion leaves open the possibility that national judges may need to investigate the 1980 Convention exceptions of their own motion: ‘the factors capable of constituting an exception to the child's immediate return in application of Arts 12, 13 and 20 of the said Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court’. [106].

27 ibid, majority opinion [106]–[107] and dissent [2].

28 ibid [107].

29 ibid.

30 ibid.

31 Art 13(1)(b) and (2) are designed to protect the interests of the child in the clearly defined situations circumscribed by those exceptions, see Pérez-Vera Report, para 29 available at <http://www.hcch.net/upload/expl28.pdf>.

32 See the reasoned opinion of the Supreme Court, In the Matter of S (a child) [2012] UKSC 10; [2012] 2 AC 257, where it was held that the child should not be returned on the basis of art 13(1)(b) due to the exceptional nature of the strong evidence relating to the health of the mother and the need to uphold the discretion of the trial judge whose decision to uphold the art 13(1)(b) exception was one that had been open to him to make [35].

33 For discussions on the problem of delay before the ECtHR see: Beaumont, P, ‘The Jurisprudence of the European Court of Human Rights and the European Court of Justice on the Hague Convention of International Child Abduction’ (2008) 335 Recueil des Cours 9, 79–80Google Scholar; P Beaumont and L Walker (n 24) 17; A Schulz (n 12) 43, 46 and 46–7; and Lowe, N, ‘A supra-national approach to interpreting the 1980 Hague Child Abduction Convention – a tale of two European Courts: Part 1: Setting the Scene [2012] IFL 48, 51–2Google Scholar. In López Guió v Slovakia, (App No 10280/12) ECHR 3 June 2014, the Hague proceedings were in breach of Article 8 ECHR because they took 22 months. Yet, ironically, the ECtHR took two years and four months to decide the case.

34 Judge Pinto de Albuquerque in his concurring opinion claims that the majority has not really changed the Neulinger approach (n 39 of his opinion).

35 In this respect [118] of the majority's opinion is disappointingly simplistic in asserting that: ‘the Court reiterates that while Article 11 of the said Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for’.

36 See Walker, L and Beaumont, P, ‘Shifting the Balance Achieved by the Abduction Convention’ (2011) 7 JPrivIntL 231, 237–9Google Scholar; Judge Pinto de Albuquerque, in the text of his concurring opinion after n 9 and after n 27; P Beaumont (n 33) 102.

37 Judge Pinto de Albuquerque agrees with the majority that there has been a violation of art 8 but disagrees with the new approach. Instead he still endorses the requirement for an in-depth examination set out in Neulinger. (X v Latvia (App No 27853/09) ECHR 26 November 2013; see the ‘Conclusion’ of the opinion).

38 See X v Latvia (App No 27853/09) ECHR 26 November 2013, [107], where the requirement is considered to be a procedural obligation to make an assessment of the exceptions.

39 For example see MR v Estonia where a return was ordered and there was no violation of art 8 because the harm would only occur on separation. See also In the Matter of S (a child) [2012] UKSC 10 where the harm to the mother would affect the child and place him in an intolerable situation, and P Beaumont and L Walker (n 24) 19–26.

40 X v Latvia (App No 27853/09) ECHR 26 November 2013, [1]–[12].

41 X v Latvia (App No 27853/09) ECHR 26 November 2013, [7].

42 ibid.

43 See X v Latvia (App No 27853/09) ECHR 26 November 2013, [117]. It was also stated that the Latvian courts should carry out ‘meaningful checks’ [116] despite the fact that the submissions of criminal convictions and ill-treatment were wholly unsubstantiated.

44 X v Latvia (App No 27853/09) ECHR 26 November 2013, [117].

45 See Beaumont, P and McEleavy, P, The Hague Convention on International Child Abduction (OUP 1999) 172–6Google Scholar; K Trimmings (n 6) 116–28, R Schuz, (n 3) 354–69 and INCADAT, <http://www.incadat.com/index.cfm?act=search.result&actie=search&lng=1&sl=2>.

46 X v Latvia (App No 27853/09) ECHR 26 November 2013, [9]–[10].

47 Some examples of cases where the child was not returned because there was a risk to the mother on return are: State Central Authority v Ardito, 20 October 1997, N.P. v A.B.P., [1999] R.D.F. 38 (Que. C.A.) and In the Matter of S (a child) [2012] UKSC 10. For further examples of case law on art 13(1)(b) see <http://www.incadat.com/index.cfm?act=text.text&lng=1>.

48 It is clear from art 13 of the Convention, and confirmed in para 114 of the Pérez-Vera Report (n 3), that the burden of proof lies on the person or body opposing the return.

49 The risk that ECtHR case law in this area will not be followed by the UK Supreme Court, seen in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144 [22]–[27] and In the Matter of S (a child) [2012] UKSC 10; [2012] 2 AC 257 [37]–[38], should disappear. The UK courts simply have to take account of decisions of the ECtHR, they do not have to follow them (Human Rights Act 1998, section 2); however, given that the UK courts were so against the decision given in Neulinger, it is questionable why the UK did not intervene in X v Latvia and have a dialogue with the ECtHR on the issue, rather than just ignoring the problem (see above n 25).

50 See the dissenting opinion in the chamber decision X v Latvia (App No 27853/09) ECHR 13 December 2011: ‘the majority has substituted its assessment concerning the best interests of the child for the assessment of the national courts in their reasoned and non-arbitrary judgments, but without having had … the benefit of direct contact with the parties concerned or with the evidence examined in the proceedings. In our opinion, the majority has assumed a function going beyond the competence of this Court’. (Judges Myjer and López Garcia). A similar point is made by the dissenting judges in Blaga v Romania (App No 54443/10) ECHR 1 July 2014 in which the majority decided that the national court had violated Art 8 ECHR by upholding the children's objections to return under Art 13(2) of the Hague Convention. Over intrusiveness by the ECHR in the opposite direction to the majority in X v Latvia.

51 (App No 14737/09) ECHR 12 July 2011. For a brief comment on the case see C Simmonds, ‘European Case Law Update: Šneersone and Kampanella v Italy (App No 14737/09) (Judgment of 12 July 2011) [2011] ECHR 1107’ [2011] IFL; and R Bailey-Harris, ‘Case Reports: Abduction: Human Rights: Sneersone and Kampanella v Italy (App No 14737/09)’ [2011] FamLaw 1188–1189.

52 For a brief analysis of this exception, with references to more detailed writings, see R Schuz (n 3) 23–5.

53 (App No 14737/09) ECHR 12 July 2011, [7].

54 ibid.

55 ibid [8].

56 ibid [9].

57 ibid [10].

58 ibid [11].

59 ibid.

60 ibid [12].

61 ibid.

62 ibid [14].

63 ibid [15].

64 ibid [17].

65 ibid [18].

66 ibid [18].

67 ibid.

68 ibid [19].

69 ibid [20].

70 ibid [22].

71 ibid [23].

72 ibid.

73 ibid [24].

74 ibid [25].

75 ibid [28].

76 ibid.

77 ibid.

78 ibid [28].

79 ibid.

80 ibid.

81 ibid [30].

82 ibid.

83 ibid [31].

84 ibid.

85 ibid [32].

86 ibid [37].

87 ibid [38].

88 ibid.

89 ibid [39].

90 ibid.

91 ibid [41].

92 ibid [42]. This seems like a fair conclusion in the present case, as the child was only four at the time, and was not heard by the Latvian courts either. However, compare this with C-491/10 PPU Aguirre Zarraga [2010] ECR I-14247, where the child was nine and a half and the German courts had refused to return the child on the basis of art 13(2) of the 1980 Convention. See L Walker and P Beaumont (n 36) 240–3.

93 (App No 14737/09) ECHR 12 July 2011, [43].

94 ibid.

95 United Nations Convention on the Rights of the Child 1989 (hereafter: ‘UNCRC’).

96 (App No 14737/09) ECHR 12 July 2011, [44].

97 ibid.

98 ibid.

99 ibid, [1].

100 ibid [54].

101 (App No 41615/07) ECHR, 6 July 2010 discussed above at n 7–11.

102 ibid [91].

103 ibid.

104 ibid [93].

105 ibid.

106 ibid.

107 ibid.

108 ibid [94].

109 ibid.

110 ibid.

111 ibid.

112 ibid [95].

113 ibid.

114 ibid.

115 ibid [95].

116 ibid [96].

117 ibid.

118 ibid [98].

119 ibid.

120 See [92] of the Šneersone judgment. See also Mole, N, ‘The complex and evolving relationship between the European Union and the European Convention on Human Rights’ (2012) 4 EHRLR 363–8Google Scholar.

121 Some guidance as to how that discretion should be exercised is given by the Commission Practice Guide for the application of the new Brussels II Regulation at 41, see <http://ec.europa.eu/civiljustice/publications/docs/guide_new_brussels_ii_en.pdf>.

The Practice Guide encourages the judge in the court of habitual residence to contact the judge or judges in the country where the child is to ‘be able properly to take account of the reasons for and the evidence underlying the decision on non-return’. The Guide also encourages the courts of origin to accept that the abducting parent and child will often not be willing to travel to the country of origin for a hearing and therefore to make use of the Taking of Evidence Regulation (1206/2001) to hear the abducting parent and child in the country of refuge.

122 Although no appeal is allowed against the issuing of a certificate by the court of origin, art 43(2) of Brussels II bis, this does not prevent an appeal against the underlying art 11(8) return order (see Advocate General Sharpston in her opinion in Case C-211/10 PPU Povse [2010] ECR I-6673 at [91]) nor does it prevent the appropriate court in the country of origin from quashing or suspending the enforcement of the return order granted under art 11(8) of Brussels IIa because of a change of circumstances, see Case C-211/10 PPU Povse [2010] ECR I-6673 [81] of the judgment and [97] and [125] of AG Sharpston's opinion.

123 A Schulz (n 12) 46.

124 See N Lowe (n 12) 178.

125 Marko had been in Latvia for almost four years at the time the ECtHR decision was given. A return to Italy at this stage would be entirely inconsistent with the summary return procedure under the 1980 Convention and it is hard to believe how it could be in the best interests of the child.

126 See Beaumont (n 33) 47–50.

127 By the time the case was resolved by the ECtHR, the child had been in the state of refuge (Switzerland) for five years, and almost three years elapsed between the date of the return order and the date of the decision of the ECtHR. Given the passage of time, the Court held, by sixteen votes to one that, in the event of the enforcement of the return order, there would be a violation of art 8 ECHR in respect of the mother and the child. Decision of the Grand Chamber in Neulinger v Switzerland, (App No 41615/07) ECHR, 6 July 2010.

128 A Schulz (n 12) 47.

129 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (App No 45036/98) ECHR, 30 June 2005.

130 Michaud v France (App No 12323/11) ECHR, 6 December 2012 [103].

131 Kuhnert, K, ‘Bosphorus – Double Standards in European Union Human Rights Protection?’ (2006) 2 Utrecht Law Review 177 and 188CrossRefGoogle Scholar; Craig, P and De Búrca, G, ‘EU Law’ (5th edn, Oxford University Press 2011) 404Google Scholar at least in relation to what should happen after the EU accedes to the ECHR.

132 Povse v Austria (App No 3890/11) ECHR, 18 June 2013 [77].

133 ibid [4].

134 ibid. Under art 317 of the Italian Civil Code, unmarried parents have joint custody of their children.

135 ibid [5].

136 ibid [7].

137 ibid [10].

138 ibid [15].

139 ibid [20].

140 ibid [28].

141 ibid [26].

142 ibid [27].

143 ibid [29].

144 ibid [30].

145 ibid [31]. (For the CJEU ruling see C-211/10 PPU [2010] ECR I-6673).

146 Povse (ECHR) [32].

147 ibid [35].

148 ibid [46].

149 ibid [47].

150 ibid [50].

151 ibid [51].

152 For a critique of the length of time taken by the ECtHR to deal with child abduction cases and the impossibility of making that Convention work properly when judicial decision-making takes years see Beaumont (n 33) 79–80.

153 Povse (ECHR) [70]–[74].

154 ibid [89].

155 ibid [77].

156 ibid [78].

157 For an example of a case where the presumption does not apply because EU law leaves discretion to a Member State that enables it to avoid a violation of the ECHR, see the judgment of the Grand Chamber in MSS v Belgium and Greece (App No 30696/09) ECHR 21 January 2011, [338]–[340].

158 Povse v Austria [79].

159 ibid [80].

160 ibid [81].

161 ibid.

162 ibid [82].

163 [50]. See Schuz (n 3) 47–9. Although in most cases return orders are complied with without the need to rely on coercive measures, a significant number of States do allow physical force to remove the child.

164 Brussels IIa, art 47(1).

165 P Craig and G De Búrca (n 131) ch 8.

166 Schuz (n 3) 48 and the 1980 Convention Guide to Good Practice, Part IV, Enforcement (HCCH 2010) especially 1.5–1.9, available at <http://www.hcch.net/upload/guide28enf-e.pdf>.

167 ‘Enforcement of Orders Made under the 1980 Convention—A Comparative Legal Study’, drawn up by Andrea Schulz, First Secretary (Preliminary Document No 6 of 2006) Part I, <http://www.hcch.net/upload/wop/abd_pd06e2006.pdf>.

168 Cavani v Hungary (App No 5493/13) 28 October 2014 [52][59].

169 Povse v Austria [87].

170 ibid [64].

171 If the appeal failed in the Italian courts, the applicants would be able to lodge an application with the ECtHR against Italy, see Šneersone and Kampanella v Italy (App No 1437/09) ECtHR, 12 July 2011 discussed above.

172 Case C-491/10 PPU Zarraga v Pelz [2010] ECR I-14247 [69].