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Case Name
Šneersone and Kampanella v. Italy (Application No 14737/09)
INCADAT reference
HC/E/LV 1152
Court
European Court of Human Rights
European Court of Human Rights (ECrtHR)
Françoise Tulkens (President); David Thór Björgvinsson, Dragoljub Popović, Giorgio Malinverni, András Sajó, Guido Raimondi, Paulo Pinto de Albuquerque (Judges); Stanley Naismith (Section Registrar)
States involved
ITALY
LATVIA
Decision
12 July 2012
Final
European Convention on Human Rights (ECHR) | Issues Relating to Return | Procedural Matters
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Bianchi v. Switzerland, no. 7548/04; Carlson v. Switzerland, no. 49492/06; Deak v. Romania and the United Kingdom, no. 19055/05, (2008) 47 E.H.R.R. 50; Dombo Beheer B.V. v. the Netherlands, A/274-A, (1994) 18 E.H.R.R. 213; Elsholz v. Germany, no. 25735/94, (2002) 34 E.H.R.R. 58; Eskinazi and Chelouche v. Turkey, no. 14600/05; Gnahoré v. France, no. 40031/98, (2002) 34 E.H.R.R. 38; Hokkanen v. Finland, A/299-A, (1995) 19 E.H.R.R. 139; Ignaccolo-Zenide v. Romania, no. 31679/96, (2001) 31 E.H.R.R. 7; Iosub Caras v. Romania, no. 7198/04, (2008) 47 E.H.R.R. 35; Kutzner v. Germany, no. 46544/99, (2002) 35 E.H.R.R. 25; Lipkowsky and McCormack v. Germany, no. 26755/10; Maire v. Portugal, no. 48206/99, (2006) 43 E.H.R.R. 13; Maršálek v. the Czech Republic, no. 8153/04; Maumousseau and Washington v. France no. 39388/05, (2010) 51 E.H.R.R. 35; Moretti and Benedetti v. Italy, no. 16318/07; Neulinger and Shuruk v. Switzerland, no. 41615/07, [2011] 1 F.L.R. 122; Raban v. Romania, no. 25437/08, [2011] 1 F.L.R. 1130; S.D., D.P. and A.T. v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996, unreported; Selmouni v. France, no. 25803/94, (2000) 29 E.H.R.R. 403; Streletz, Kessler and Krenz v. Germany, nos. 34044/96, 35532/97 and 44801/98, (2001) 33 E.H.R.R. 31; Tiemann v. France and Germany, nos. 47457/99 and 47458/99; Yakup Köse v. Turkey, no. 50177/99.
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INCADAT comment
Inter-Relationship with International / Regional Instruments and National Law
Brussels II a Regulation
European Court of Human Rights (ECrtHR) Judgments
Exceptions to Return
Economic Factors
Implementation & Application Issues
Undertakings
SUMMARY
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Facts
The mother's only income came from her family in Latvia. These payments ended in December 2005 leaving her with no means of supporting herself in Italy. As a result, she returned to Latvia with the child in April 2006. The father applied to the Rome Youth Court for interim sole custody and for the return of the child to Italy. The Court upheld the father's request and scheduled a hearing for 25 October 2006. Although the Court did not have jurisdiction to order the return of the child it held that he should reside with his father. The mother alleged that she was not notified of the hearing.
On 16 January 2007, the father commenced proceedings under the 1980 Hague Child Abduction Convention for the return of the child to Italy. The Latvian Central Authority held that this would not be in the child's best interests. He had settled in Latvia and his living conditions there were beneficial to his growth and development. Furthermore, the mother was providing for his emotional and physical development.
On 11 April 2007, the Latvian Court refused the father's application to return the child to Italy. It held that a defence under Article 13(1)(b) of the Hague Convention had been established. Financial constraints prevented the mother from accompanying the child back to Italy while the safeguards offered by Italy could not guarantee that the child would be protected from psychological harm arising from his separation from his mother. Consequently, Article 11(4) of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003) had not been fulfilled.
On 7 August 2007, the father applied to the Rome Youth Court under Article 11 of the Brussels IIa Regulation to issue an immediately enforceable decision ordering the return of the child to Italy. The Court found in his favour and considered the safeguards offered by the father to be adequate to protect the child from any risks arising from his return. The decision was upheld on appeal on 21 April 2008. On 15 October 2008 the Republic of Latvia brought an action against Italy before the European Commission in application of Article 227 of the Treaty Establishing the European Community. It alleged that the Rome Youth Court had failed to comply with the Brussels IIa Regulation by failing to hear either the mother or child as part of the proceedings and by ignoring the decisions of the Latvian courts.
The Commission rejected the claim. There was no indication that returning the child to live with his father in Italy would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Furthermore, the Italian Court had set out specific obligations on the father designed to protect the child from any risk of harm and to enable contact with both parents. Referring to case law of the European Court of Human Rights (Dombo Beheer B.V. v. the Netherlands, (1994) 18 E.H.R.R. 213), the Commission considered that the use of written proceedings was permissible as long as the principle of equality of arms was observed.
The Commission observed that the mother had been given an opportunity to submit written observations on equal grounds with the child's father and thus neither the Brussels IIa Regulation nor the UN Convention on the Rights of the Child had had been violated. Before the European Court of Human Rights, mother and child complained under Article 8 of the European Convention on Human Rights (ECHR) that the Italian courts' decisions ordering the child's return to Italy were contrary to his best interests as well as in violation of international and Latvian law. They further complained under Article 6 about the procedural fairness of decision-making in Italian courts. In particular, they were critical of the fact that the mother was not present at the hearing of the Rome Youth Court.
Ruling
Grounds
European Convention on Human Rights (ECHR)
The European Court of Human Rights noted that interference with the right to respect for family life had previously been found in Raban v. Romania, No 25437/08 [INCADAT Reference: HC/E/ 1330] where domestic measures hindered the mutual enjoyment by a parent and a child of each other's company. In the present case, the psychologists' reports indicated that the prospect of returning to Italy was causing the child psychological stress and anxiety.
The Court stated that, "[t]hat cannot but have a significant impact on the applicants' enjoyment of their family life". Furthermore, an order for return, even if it has not been enforced, in itself could constitute an interference with Article 8 of the ECHR (Neulinger and Shuruk v. Switzerland, No 41615/07 [INCADAT Reference: HC/E/ 1323] and Lipkowsky and McCormack v. Germany, No 26755/10). The Court concluded that the order of the Rome Youth Court to return the child to Italy constituted an interference with the applicants' right to respect for family life.
There were two issues before the Court. The first was whether this interference was "necessary in a democratic society" within the meaning of Article 8 of the ECHR. The second was whether the interference struck a fair and proportionate balance between the various interests at stake, namely those of the child, of the parents and of public order. The Court said that "[i]t is essential also to keep in mind that the Hague Convention is essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis".
The Court noted that it was not its task to take the place of the competent authorities in examining whether there would be a grave risk that the child would be exposed to psychological or physical harm, within the meaning of Article 13 of the Hague Convention, if he returned to Italy. However, it was competent to ascertain whether the Italian courts, in applying and interpreting the provisions of the Hague Convention and of the Brussels IIa Regulation, had secured the guarantees set forth in Article 8 of the ECHR, particularly taking into account the child's best interests.
The Court observed that the reasoning contained in the Italian courts' decisions of 21 April 2008 and 21 April 2009 was rather scant. Even if it accepted the Italian courts' theory that their role was limited by Article 11(4) of the Brussels IIa Regulation to assessing whether adequate arrangements had been made to secure the child's protection after his return to Italy from any identified risks within the meaning of Article 13(1)(b)of the Hague Convention, it could not fail to observe that the Italian courts had failed to address any risks that had been identified by the Latvian authorities.
In this the Court noted that the psychologists' reports relied upon by the Latvian authorities had not been considered. The psychologists had concluded that returning to Italy would cause the child psychological harm and interfere with his development. The Italian courts had also overlooked the fact that it was not financially viable for the mother to return with the child: she spoke no Italian and was virtually unemployable.
Other factors which should have been taken into account were that the child was settled in Latvia, had a strong emotional bond with his mother, had no common language with his father and had not seen him in over three years. Furthermore, the Italian courts had taken no steps to establish if the residence proposed by the father was a suitable home for a young child.
The Court found that the measures proposed by the Italian authorities to protect the child were inadequate, and the Court was unpersuaded the Italian courts sufficiently appreciated the seriousness of the difficulties which the child was likely to encounter in Italy. Allowing the mother to stay with the child for fifteen to thirty days during the first year and then for one summer month every other year, as had been proposed, was a manifestly inappropriate response to the psychological harm that would result from the sudden severance of the close bond between mother and child.
Immersing the child in a linguistically and culturally foreign environment could not in any way be compensated by attending kindergarten, a swimming pool and Russian language classes. The father's undertaking to ensure that the child received adequate psychological support was deemed to be laudable, but the Court held that such an external support could ever be considered as an equivalent alternative to psychological support that was intrinsic to strong, stable and undisturbed ties between a child and his mother.
Furthermore, the Italian courts had not considered alternative means of facilitating contact between father and child. Consequently, the interference with the applicants' right to respect for family life was not "necessary in a democratic society". Article 8 of the ECHR had been violated.
Damages
The Court awarded the applicants jointly 10,000 Euros in respect of non-pecuniary damage and 5,000 Euros in respect of costs and expenses.
Issues Relating to Return
See above.
Procedural Matters
The European Court of Human Rights held that the absence of the mother at the hearing before the Rome Youth Court did not violate Article 8 of the ECHR. The procedural fairness requirement of Article 8 was satisfied by the submission of detailed written statements by both the mother and the father before the two levels of Italian courts.
Author of the summary: Peter McEleavy
INCADAT comment
Brussels II a Regulation
The application of the 1980 Hague Convention within the Member States of the European Union (Denmark excepted) has been amended following the entry into force of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, see:
Affaire C-195/08 PPU Rinau v. Rinau, [2008] ECR I 5271 [2008] 2 FLR 1495 [Référence INCADAT : HC/E/ 987];
Affaire C 403/09 PPU Detiček v. Sgueglia, [Référence INCADAT : HC/E/ 1327].
The Hague Convention remains the primary tool to combat child abductions within the European Union but its operation has been fine tuned.
An autonomous EU definition of ‘rights of custody' has been adopted: Article 2(9) of the Brussels II a Regulation, which is essentially the same as that found in Article 5 a) of the Hague Child Abduction Convention. There is equally an EU formula for determining the wrongfulness of a removal or retention: Article 2(11) of the Regulation. The latter embodies the key elements of Article 3 of the Convention, but adds an explanation as to the joint exercise of custody rights, an explanation which accords with international case law.
See: Case C-400/10 PPU J Mc.B. v. L.E, [INCADAT cite: HC/E/ 1104].
Of greater significance is Article 11 of the Brussels II a Regulation.
Article 11(2) of the Brussels II a Regulation requires that when applying Articles 12 and 13 of the 1980 Hague Convention that the child is given the opportunity to be heard during the proceedings, unless this appears inappropriate having regard to his age or degree of maturity.
This obligation has led to a realignment in judicial practice in England, see:
Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 A.C. 619 [INCADAT cite: HC/E/UKe 880] where Baroness Hale noted that the reform would lead to children being heard more frequently in Hague cases than had hitherto happened.
Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72, [INCADAT cite: HC/E/UKe 901]
The Court of Appeal endorsed the suggestion by Baroness Hale that the requirement under the Brussels II a Regulation to ascertain the views of children of sufficient age of maturity was not restricted to intra-European Community cases of child abduction, but was a principle of universal application.
Article 11(3) of the Brussels II a Regulation requires Convention proceedings to be dealt with within 6 weeks.
Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996, [INCADAT cite: HC/E/UKe 931]
Thorpe LJ held that this extended to appeal hearings and as such recommended that applications for permission to appeal should be made directly to the trial judge and that the normal 21 day period for lodging a notice of appeal should be restricted.
Article 11(4) of the Brussels II a Regulation provides that the return of a child cannot be refused under Article 13(1) b) of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his return.
Cases in which reliance has been placed on Article 11(4) of the Brussels II a Regulation to make a return order include:
France
CA Bordeaux, 19 janvier 2007, No 06/002739 [INCADAT cite: HC/E/FR 947];
CA Paris 15 février 2007 [INCADAT cite: HC/E/FR 979].
The relevant protection was found not to exist, leading to a non-return order being made, in:
CA Aix-en-Provence, 30 novembre 2006, N° RG 06/03661 [INCADAT cite: HC/E/FR 717].
The most notable element of Article 11 is the new mechanism which is now applied where a non-return order is made on the basis of Article 13. This allows the authorities in the State of the child's habitual residence to rule on whether the child should be sent back notwithstanding the non-return order. If a subsequent return order is made under Article 11(7) of the Regulation, and is certified by the issuing judge, then it will be automatically enforceable in the State of refuge and all other EU-Member States.
Article 11(7) Brussels II a Regulation - Return Order Granted:
Re A. (Custody Decision after Maltese Non-return Order: Brussels II Revised) [2006] EWHC 3397 (Fam.), [2007] 1 FLR 1923 [INCADAT cite: HC/E/UKe 883]
Article 11(7) Brussels II a Regulation - Return Order Refused:
Re A. H.A. v. M.B. (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam), [2008] 1 FLR 289, [INCADAT cite: HC/E/UKe 930].
The CJEU has ruled that a subsequent return order does not have to be a final order for custody:
Case C-211/10 PPU Povse v. Alpago, [INCADAT cite: HC/E/ 1328].
In this case it was further held that the enforcement of a return order cannot be refused as a result of a change of circumstances. Such a change must be raised before the competent court in the Member State of origin.
Furthermore abducting parents may not seek to subvert the deterrent effect of Council Regulation 2201/2003 in seeking to obtain provisional measures to prevent the enforcement of a custody order aimed at securing the return of an abducted child:
Case C 403/09 PPU Detiček v. Sgueglia, [INCADAT cite: HC/E/ 1327].
For academic commentary on the new EU regime see:
P. McEleavy ‘The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?' [2005] Journal of Private International Law 5 - 34.
Economic Factors
Article 13(1)(b) and Economic Factors
There are many examples, from a broad range of Contracting States, where courts have declined to uphold the Article 13(1)(b) exception where it has been argued that the taking parent (and hence the children) would be placed in a difficult financial situation were a return order to be made.
Australia
Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT Reference: HC/E/AU 293]
The fact that the mother could not accompany the child to England for financial reasons or otherwise was no reason for non-compliance with the clear obligation that rests upon the Australian courts under the terms of the Convention.
Canada
Y.D. v. J.B. [1996] R.D.F. 753 (Que. C.A.) [INCADAT Reference: HC/E/CA 369]
Financial weakness was not a valid reason for refusing to return a child. The Court stated: "The signatories to the Convention did not have in mind the protection of children of well-off parents only, leaving exposed and incapable of applying for the return of a wrongfully removed child the parent without wealth whose child was so abducted."
France
CA Lyon, 19 septembre 2011, No de RG 11/02919 [INCADAT Reference: HC/E/FR 1168]
The existence of more favourable living conditions in France could not be taken into consideration.
Germany
7 UF 39/99, Oberlandesgericht Bamberg [INCADAT Reference: HC/E/DE 821]
New Zealand
K.M.A. v. Secretary for Justice [2007] NZFLR 891 [INCADAT Reference: HC/E/NZ 1118]
Financial hardship was not proven on the facts; moreover, the Court of Appeal considered it most unlikely that the Australian authorities would not provide some form of special financial and legal assistance, if required.
United Kingdom - England and Wales
In early case law, the Court of Appeal repeatedly rejected arguments that economic factors could justify finding the existence of an intolerable situation for the purposes of Article 13(1)(b).
Re A. (Minors) (Abduction: Custody Rights) [1992] Fam 106 [INCADAT Reference: HC/E/UKe 48]
In this case, the court decided that dependency on State benefits cannot be said in itself to constitute an intolerable situation.
B. v. B. (Abduction: Custody Rights) [1993] Fam 32, [1993] 2 All ER 144, [1993] 1 FLR 238, [1993] Fam Law 198 [INCADAT Reference: HC/E/UKe 10]
In this case, it was said that inadequate housing / financial circumstances did not prevent return.
Re M. (Abduction: Undertakings) [1995] 1 FLR 1021 [INCADAT Reference: HC/E/UKe 20]
The Court suggested that the exception might be established were young children to be left homeless, and without recourse to State benefits. However, to be dependent on Israeli State benefits, or English State benefits, could not be said to constitute an intolerable situation.
United Kingdom - Scotland
Starr v. Starr, 1999 SLT 335 [INCADAT Reference: HC/E/UKs 195]
IGR, Petitioner [2011] CSOH 208 [INCADAT Reference: HC/E/UKs 1154]
Switzerland
5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]
Zimbabwe
Secretary For Justice v. Parker 1999 (2) ZLR 400 (H) [INCADAT Reference: HC/E/ZW 340]
There are some examples where courts have placed emphasis on the financial circumstances (or accommodation arrangements) that a child / abductor would face, in deciding whether or not to make a return order:
Australia
Harris v. Harris [2010] FamCAFC 221 [INCADAT Reference: HC/E/AU 1119]
The financially precarious position in which the mother would find herself were a return order to be made was a relevant consideration in the making of a non-return order.
France
CA Paris, 13 avril 2012, No de RG 12/0617 [INCADAT Reference : HC/E/FR 1189]
In this case, inadequate housing was a relevant factor in the consideration of a non-return order.
Netherlands
De directie Preventie, optredend voor zichzelf en namens Y (de vader /the father) against X (de moeder/ the mother) (7 February 2001, ELRO nr.AA9851 Zaaknr:813-H-00) [INCADAT Reference: HC/E/NL 314]
In this case, financial circumstances were a relevant factor in the consideration of a non-return order.
United Kingdom - Scotland
C. v. C. 2003 S.L.T. 793 [INCADAT Reference : HC/E/UKs 998]
An example where financial circumstances did lead to a non-return order being made.
A, Petitioner [2011] CSOH 215, 2012 S.L.T. 370 [INCADAT Reference: HC/E/UKs 1153]
In this case, adequate accommodation and financial support were relevant factors in the consideration of a non-return order.
European Court of Human Rights (ECrtHR)
Šneersone and Kampanella v. Italy (Application No 14737/09) [INCADAT Reference: HC/E/ 1152]
The ECrtHR, in finding that there had been a breach of Article 8 of the European Convention on Human Rights (ECHR) in the return of a child from Latvia to Italy, noted that the Italian courts exercising their powers under the Brussels IIa Regulation, had overlooked the fact that it was not financially viable for the mother to return with the child: she spoke no Italian and was virtually unemployable.
(Author: Peter McEleavy, April 2013)
European Court of Human Rights (ECrtHR) Judgments
Undertakings
Preparation of INCADAT case law analysis in progress.