Cour européenne des droits de l'homme
European Court of Human Rights (ECrtHR)
UNITED STATES OF AMERICA
10 July 2012
Subject to appeal
European Convention on Human Rights (ECHR) | Procedural Matters
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.
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
Preparation of INCADAT commentary in progress.
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
Résumé INCADAT en cours de préparation.