CASE

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Case Name

B. c. Belgique (Requête No 4320/11)

INCADAT reference

HC/E/BE 1171

Court

Name

Cour européenne des droits de l'homme

Level

European Court of Human Rights (ECrtHR)

Judge(s)
Danutė Jočienė (présidente); Françoise Tulkens, Isabelle Berro-Lefèvre, András Sajó, Işıl Karakaş, Paulo Pinto de Albuquerque, Helen Keller (juges); Stanley Naismith (greffier de section)

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

BELGIUM

Decision

Date

10 July 2012

Status

Subject to appeal

Grounds

European Convention on Human Rights (ECHR) | Procedural Matters

Order

-

HC article(s) Considered

13(1)(a) 13(1)(b) 13(2) 13(3) 26

HC article(s) Relied Upon

-

Other provisions
European Convention on Human Rights, United Nations Convention of the Rights of the Child of 20 November 1989
Authorities | Cases referred to
Keegan c. Irlande, 26 mai 1994, série A No 290; Neulinger et Shuruk, [GC], No 41615/07, CEDH 2010; Maumousseau et Washington c. France, No 39388/05, 6 décembre 2007; Šneersone et Kampanella c. Italie, No 14737/09, 12 juillet 2011; Raban c. Roumanie, No 25437/08, 26 octobre 2010; Elsholz c. Allemagne [GC], No 25735/94, CEDH 2000 VIII, Maršálek c. République tchèque, No 8153/04, 4 avril 2006; Lipkowsky et McCormack c. Allemagne (déc.), No 26755/10, 18 janvier 2011; Karrer c. Roumanie, No 16965/10, 21 février 2012; M.R. et L.R. c. Estonie (déc., No 13420/12, 15 mai 2012); Affaires citées dans les opinions séparées : Loizidou c. Turquie, arrêt du 18 décembre 1996, No. 15318/89 ; Al-Adsani c. Royaume-Uni, arrêt [GC] du 21 novembre 2001, No. 35763/97 ; Streletz, Kessler et Krenz c. Allemagne arrêt [GC] du 22 mars 2001, No. 34044/96, 35532/97 et 44801/98 ; Golder c. Royaume-Uni, arrêt du 21 février 1975, No. 4451/70 ; Matthews c. Royaume-Uni, arrêt [GC] du 18 février 1999, No. 24833/94, §§ 29, 32-34 ; Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi c. Irlande, arrêt (GC) du 30 juin 2005, No. 45036/98, §§ 154-157; Iglesias Gil et A.U.I c. Espagne, No 56673/00, § 51, CEDH 2003-V; Ignaccolo-Zenide c. Roumanie, No 31679/96, CEDH 2000-I; Maire c. Portugal, No 48206/99, CEDH 2003-VII; Maumousseau et Washington c. France No 39388/05, 6 décembre 2007 ; Neulinger et Shuruk c. Suisse, [GC] No 41615/07, CEDH 2010 ; Raban c. Roumanie, No 25437/08, 26 octobre 2010 ; Sneesone et Kampanella c. Italie, No 14737/09, 12 juillet 2011; X c. Lettonie, No 27853/09, 13 décembre 2011 (renvoyé en Grande Chambre).

INCADAT comment

Inter-Relationship with International / Regional Instruments and National Law

European Convention of Human Rights (ECHR)
European Court of Human Rights (ECrtHR) Judgments

Exceptions to Return

Protection of Human rights & Fundamental Freedoms
Protection of Human rights & Fundamental Freedoms

SUMMARY

Summary available in EN | FR

Facts

The case concerned a child born in the United States of America in 2003. During her early pregnancy, the mother had been beaten by the father, who wanted her to have an abortion. The parents argued over the child's custody for years. The child lived with her mother until 2007. In 2008, an alternating-custody agreement between the parents was approved by a court.

The father moved, but refused to notify his new address to the mother. In September 2008, the mother obtained an emergency temporary order restraining the father from any contact with the child until the father's hearing or for no more than 15 days, but the father obtained cancellation of that measure the next month, despite the report of a psychologist having monitored the child for months, according to whom the judges' decisions were not in the child's interest.

In late October, the mother left the United States of America with the child and moved to Belgium (her country of origin). On 24 December 2008, a U.S. Court found that the child had been abducted, ordered the mother's arrest and awarded sole custody of the child to the father.

On 8 March 2010, the Belgian Court trying the return application, following the Public Prosecutor's Office's opinion, held that the child's return to the United States of America could not be justified under Article 13 of the 1980 Hague Child Abduction Convention (the "Hague Convention") on the grounds that "the child's return would expose her to risks all the greater since the father has obtained sole custody of the child".

On 23 December 2010, the Court of Appeal decided not to follow the Public Prosecutor's Office's recommendation that the child's return would place her in an intolerable situation, and ordered the mother to return her daughter to the United States of America within a month.

On the basis in particular of infringement of her right to family life as secured by Article 8 of the ECHR and relying on the case-law of the European Court of Human Rights (ECrtHR) as laid down in Neulinger and Shuruk v. Switzerland [INCADAT Reference: HC/E/1323], the mother appealed to the Belgian Supreme Court on 12 January 2011.

On 14 March 2011, the father, assisted by five U.S. nationals, attempted to abduct the child as she was leaving school, but was prevented by the police. On 13 May 2011, a Court at First Instance confirmed the provisional injunction preventing the father from taking the child abroad after the attempted abduction. The father did not appeal.

On 10 November 2011, the Supreme Court dismissed the mother's appeal against the return order.

On 24 January 2012, the US Central Authority stated that the district attorney had sole discretion to determine whether criminal prosecution of the mother was appropriate. Such action would not prevent custody being awarded to the mother, but no assurances could be given to the Belgian authorities on this point.

Ruling

By five votes to two: infringement of Article 8 of the European Convention on Human Rights (ECHR); award of damages on the basis of Article 41 of the ECHR.

Grounds

European Convention on Human Rights (ECHR)

The Court found that for the mother and her daughter, "continuing to live together is a fundamental element that is obviously a matter of their family life within the meaning of Article 8" of the ECHR. There was no dispute that the child's return ordered by the Belgian courts was "interference" within the meaning of Article 8, and that the disputed measure was "in accordance with the law" within the meaning of the said Article. It was up to the Court, therefore, to determine whether the disputed measure had a legitimate purpose and whether it was necessary in a democratic society.

The Court reiterated the general principles applicable in this respect:
As regards international child abduction, "he obligations imposed on States by Article 8 ECHR should be interpreted in the light of the requirements imposed by the Hague Convention [...] [and] the International Convention on the rights of the child, with due regard to the different natures of those treaties."

"On the one hand, the New York Convention requires States parties to take action to fight wrongful removals and retentions of children abroad and such States are encouraged to enter into bilateral or multilateral agreements, or accede to existing agreements - including the Hague Convention. On the other hand, the concept of the "child's best interests", which lies at the core of the protection offered by the New York Convention, also plays a part in application of the Hague Convention, despite its essentially procedural nature".

The child's best interests should be evaluated case by case, with the domestic authorities having a measure of discretion, and the ECrtHR did not challenge the analysis of facts by the States unless it was manifestly arbitrary. "The crux in relation to Article 8 [ECHR was] determining whether the fair balance required between the competing interests involved - those of the child, those of both parents and those of the community - [had been] secured by the domestic courts, within the limits of their discretion", and the child's interest implies that family connections are maintained unless the family has been found to be unworthy of the child and also that the child's development in a healthy environment is secured.

The ECrtHR accordingly had to ascertain whether the domestic courts had conducted, within a reasonable time, an adequate evaluation of the practical implications of the child's return, by taking into consideration the evidence having appeared subsequent to the domestic rulings owing to the passage of time "including the duration of the proceedings before it".In the case in point, the mother and child complained that the local authorities had not reviewed the family situation in depth.

The Court observed that the domestic courts seized had not been unanimous. It added that before the Ghent Court of Appeal, both parties had been heard, and the Court of Appeal had "at its disposal psychological-examination reports for the child, provided to the Court by the mother, and a video recorded on the occasion of a meeting in Belgium between the child and father. The Court of Appeal [had] delivered a ruling justified at length, in which it [had] considered all the pleas raised by the parties".

The ECrtHR noted that "according to the psychological-examination reports at the Court of Appeal's disposal, the child's interest demanded not removing her from her mother". The Court had dismissed those reports because they had been "established unilaterally by the mother, and the video recorded on the occasion of the father-daughter meeting, even though not 'decisive', did not highlight any manifest problem between them".

According to the Court, "not crediting fully the psychological examinations discovered by either party was obviously consistent with the Court of Appeal's margin of discretion". It observed, however, that "the Court of Appeal had not sought to ascertain by itself, by means of other examinations it would have ordered and as recommended by the Public Prosecutor's Office, the reality of the risks mentioned in those reports of the child being exposed to an 'intolerable situation' [...] This is a failing of a procedural nature."

The ECrtHR noted that the Court of Appeal had worked simply from the finding that it was "most unlikely that the mother would return to the United States of America where she incurred a term of imprisonment and the loss of parental authority", and noted that the child, "who has dual nationality, had arrived [in Belgium] in October 2008 at the age of five and [had resided] there uninterruptedly since". The Court of Appeal had "contemplated this 'time' factor only from the procedural angle, finding that it would have been bound to take the child's settlement in Belgium into account only if the return application had been made after more than a year, which was not the case".

The ECrtHR observed, however, that a further 11 months had elapsed before the Supreme Court's ruling.

It accordingly considered "that the Court of Appeal was not in a position to determine, in a duly-informed manner, whether there was a risk within the meaning of Article 13(1)(b) of the Hague Convention and that the decision-making process under domestic law [had] not met the procedural requirements inherent in Article 8" of the ECHR. It deduced that there would be an infringement of Article 8 of the ECHR if the ruling ordering the child's return were enforced.

Concurring, Judges Tulkens and Keller detailed the scope of their vote supporting an infringement of the right to respect for family life if the decision ordering the second applicant's return was enforced.

They stated that the ECrtHR had "constantly stressed that the European Convention on Human Rights should not be interpreted in isolation, but consistently with the general principles of public international law and that account should be taken of 'any relevant rule of international law applicable to the relationship between the parties', and in particular those relating to international protection for human rights".

This idea implied that "ratification of an international treaty does not exempt the States parties from their duties under the Convention", that the various obligations to which States are subject should be harmonised, and that "the duties arising out of an international organisation apply if it offers protection of fundamental rights equivalent to that secured by the Convention".

Admittedly, the Hague Convention was of a "rather procedural nature", whereas Article 8 of the ECHR required a substantive approach. However, Articles 12 and 13 of the Hague Convention offered an opportunity to harmonise the different obligations. Nevertheless, application of the Hague Convention was a matter solely of the States parties' responsibility, whereas the ECrtHR reviewed compliance with the ECHR. The ECrtHR accordingly assisted, in a way, the effectiveness and efficiency of the Hague Convention.

The Hague Convention could not apply "in mechanical fashion". There were "limits to the obligation to cooperate, which is not absolute and may not be overriding in all circumstances", in particular with respect to Article 13 of the Hague Convention.

In exercising its review, the Court was not empowered "to rule on the child's best interest, and even less to substitute its own view of the child's interest for that of the domestic courts. On the other hand, the Court's role [was] to ascertain whether, in the application and interpretation of the Hague Convention, the domestic courts [had] complied with all the safeguards under Article 8" of the ECHR.

In the case in point, the domestic courts had not conducted, within a reasonable time, an adequate review of the practical implications of the return for the child. First, the domestic courts to which the matter had been referred were split. Without explanation, the Court of Appeal did not go along with the view of the Public Prosecutor's Office which, suspecting a risk of "intolerable situation", had recommended further enquiries and had spoken against return.

Next, even though it was obviously within the Court of Appeal's discretion not to credit fully the psychological reports discovered by one of the parties, it did not seek to ascertain by itself the reality of the risks, stressed in those reports, of the child being exposed to an "intolerable situation".

They stressed that "the approach based on the decision-making process can make referral to the discretion meaningful by adding a precaution to it: before relying, on the merits, on the State's appraisals, it will have to be ascertained whether, in methodological and formal terms, they multiplied the chances of reaching the 'right decision', while listening, fairly and impartially, to all the relevant interests".

They recognised, however, that this "approach could admittedly have limitations" connected with the fact that the Hague Convention relies on the twofold requirement of return of the child as soon as possible and cooperation among domestic authorities. Thus, "[if] either of those requirements [was] not met, application of the Hague Convention [became] problematic. The longer the child stays in one country, the better settled and the deeper its roots there.

The less substantial the information provided by the authorities regarding the risk involved in a child's return, the less significant the review of the return ruling. In [such] circumstances, the protection secured by the Hague Convention and Article 8 of the ECHR could no longer be regarded as being equivalent. [...] And eventually, the Court might be bound to ascertain the measures' consistency with all the obligations under Article 8". Judges Berro-Lefèvre and Karakaş stated a dissenting opinion.

On the footing that "in all the cases that the Court [had] had to deal with in matters of child abduction, it [had] constantly taken care to reiterate, as general principles applicable in such matters, that the obligations imposed on the States by Article 8 are to be interpreted in the light of the requirements of the Hague Convention on the Civil Aspects of International Child Abduction and those of the International Convention on the Rights of the Child", and that "the child's best interest [was] primarily a matter for the domestic authorities to appraise", the judges considered that the role of the ECrtHR was to ascertain whether the decision-making process leading to the interference measures was fair, and complied with the interests protected by Article 8 of the ECHR.

In the case in point, the Ghent Court of Appeal had delivered a judgment justified at length, in which it had considered all the pleas raised by the parties. Taking into account the psychological reports discovered by the mother, the Court of Appeal had considered that they needed to be put into perspective with the recent findings relating to contacts between the father and daughter during the period of the trial before it. Finally, it had taken into consideration the removal of the mother in the event of return to the United States of America, stating that the latter's assertion of impossibility of reaching a suitable arrangement in court or otherwise was purely speculative.

Yet "although it had recognised its review's comprehensive nature, the majority [of the ECrtHR] went on to criticise the [Belgian] court's approach", "finding that the Court at First Instance had ruled otherwise, that the Court of Appeal did not order further examinations, did not consider the impossibility of the mother's return to the United States of America, nor take the time factor into account to investigate in further depth the practical implications of return". They noted that "the majority censure[d] the Ghent Court of Appeal for failing to take the 'time' factor into account, while requiring it to appoint further experts, which would inevitably have extended the duration of proceedings substantially."

"Thereby, and inconsistently with the general principles it had been careful to point out, [...] the majority clearly substitute[d] its own findings regarding the best interests of the child for those of the Court of Appeal, and in sum, acted as a Court in the fourth instance."

Judges Berro-Lefèvre and Karakaş were of the view that "the meticulous and detailed reasoning of the Ghent Court of Appeal which, to repeat once again, was based on a direct review of the facts of the matter, [could] not be regarded as inadequate or arbitrary solely because we, judging in Strasbourg, acting on an undeveloped case, are of a different view regarding the conclusions drawn by that court from each plea set out before it", adding that, unfortunately, "our feeling is that the conclusion of infringement based on the exceptional situation of the Swiss case is becoming the rule, in that disregarding the opposite view of domestic courts about the absence of grave risk in the event of the child's return, the Court tends, as a result solely of the passage of time, and substituting for those courts, to sanction unlawful behaviour", and pointed out that "the policy underlying the Hague Convention lies in fighting the multiplication of international child abductions.

The point, once the conditions for application of that Convention are met, is to return to the statu quo ante as soon as possible in order to avoid the legal consolidation of initially-unlawful factual situations, and to leave the issues relating to custody and parental authority for the domestic courts at the location of the child's habitual residence.

Requiring of the domestic courts a review in depth of the whole family's situation in each such case is pointless; there would no longer be any difference between return proceedings based on that Convention (which demand some swiftness) and proceedings 'on the merits' relating to custody or rights of access and accommodation.

Such an approach would void the Hague Convention, an instrument of international law from which the Court should draw inspiration to interpret Article 8 of the Convention, of both its substance and its primary purpose, which explains why the exceptions to the child's return should be interpreted narrowly. [...] It seems essential for us to stress that the danger referred to under Article 13 of that Convention should not consist only of the separation from the parent having committed the wrongful removal or retention".

They accordingly concluded, in the light of these explanations, that in their view there was no infringement of Article 8 of the ECHR.

Procedural Matters

Considering that the connection between the infringement of Article 8 of the ECHR and the intangible damage alleged by the parties was sufficiently proven as regards the daughter, the ECrtHR awarded 5,000 Euros in respect of the intangible damage suffered by the child. On the other hand, the Court dismissed the mother's claim for just satisfaction, on the grounds in particular that she had not been parted from her daughter. It awarded 1,500 Euros to the mother as costs and expenses.

Author of the summary: Aude Fiorini

INCADAT comment

European Court of Human Rights (ECrtHR) Judgments

Protection of Human rights & Fundamental Freedoms

Preparation of INCADAT commentary in progress.

Faits

L'affaire concernait une enfant née aux États-Unis d'Amérique en 2003. En début de grossesse, la mère avait été battue par le père qui lui avait demandé d'avorter. Les parents se disputèrent la garde de l'enfant pendant des années. L'enfant vécut avec sa mère jusqu'en 2007. En 2008, un accord de garde alternée entre les parents fut homologué par le tribunal.

Le père déménagea mais refusa de communiquer sa nouvelle adresse à la mère. En septembre 2008, la mère obtint une mesure provisoire urgente interdisant au père tout contact avec l'enfant jusqu'à l'audition du père ou pendant 15 jours maximum, mais le père obtint le mois suivant l'annulation de cette mesure, en dépit d'un rapport établi par un psychologue qui avait suivi l'enfant pendant des mois et selon lequel les décisions prises par les juges n'étaient pas dans l'intérêt de l'enfant.

Fin octobre, la mère quitta les États-Unis d'Amérique avec l'enfant et s'installa en Belgique (d'où elle était originaire). Le 24 décembre 2008, une juridiction américaine constata l'enlèvement de l'enfant, ordonna l'arrestation de la mère et accorda la garde exclusive de l'enfant au père.

Le 8 mars 2010, le Tribunal belge saisi de la demande de retour, suivant les conclusions du Ministère public, décida que le retour de l'enfant aux États-Unis d'Amérique ne pouvait se justifier en raison de l'article 13 la Convention de la Haye de 1980 sur l'enlèvement d'enfants (« la Convention de la Haye ») au motif que « le renvoi de l'enfant l'exposerait à des dangers d'autant plus que le père s'est vu reconnaitre la garde exclusive de l'enfant ».

Le 23 décembre 2010, la Cour d'appel décida de ne pas suivre les recommandations du Ministère public en vertu desquelles le retour placerait l'enfant dans une situation intolérable et ordonna à la mère de ramener sa fille aux États-Unis d'Amérique dans un délai d'un mois.

Tirant notamment grief de la violation de son droit à la vie familiale tel que garanti par l'article 8 de la CEDH et s'appuyant sur la jurisprudence de la Cour européenne des droits de l'homme (CourEDH) telle qu'énoncée dans Neulinger et Shuruk c. Suisse [Référence INCADAT : HC/E/ 1323] la mère se pourvut en cassation le 12 janvier 2011.

Le 14 mars 2011, le père, aidé de cinq personnes de nationalité américaine, tenta d'enlever l'enfant à la sortie de l'école mais la police s'interposa. Le 13 mai 2011, un tribunal de première instance confirma l'interdiction provisoire qui avait été faite au père de sortir l'enfant du territoire suite à la tentative d'enlèvement. Le père ne déposa pas de recours.

Le 10 novembre 2011, la Cour de cassation rejeta le pourvoi introduit par la mère contre l'ordonnance de retour.

Le 24 janvier 2012, l'Autorité centrale américaine indiqua que, s'agissant des poursuites pénales auxquelles la mère pourrait être exposées, seul le procureur pouvait décider de leur opportunité. De telles poursuites ne s'opposaient pas à ce que la garde soit confiée à la mère mais aucune garantie ne pouvait être donnée sur ce point aux autorités belges.

Dispositif

Par cinq voix contre deux : violation de l'article 8 de la Convention européenne des Droits de l'Homme (CEDH) ; allocation de dommages-intérêts sur le fondement de l'article 41 de la CEDH.

Motifs

Convention européenne des droits de l’homme (CEDH)

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Questions procédurales


Estimant que le lien entre la violation de l'article 8 de la CEDH et le préjudice moral allégué par les parties était suffisamment établi en ce qui concerne la fille, la CourEDH octroya 5,000 euros au titre du dommage moral subi par l'enfant. En revanche, la Cour rejeta la demande de satisfaction équitable de la mère, notamment vu qu'elle n'avait pas été séparée de sa fille. Elle accorda 1,500 euros à la mère au titre des frais et dépens.

Auteur du résumé : Aude Fiorini

Commentaire INCADAT

Jurisprudence de la Cour européenne des Droits de l'Homme (CourEDH)

Sauvegarde des droits de l'homme et des libertés fondamentales

Résumé INCADAT en cours de préparation.