European Court of Human Rights
European Court of Human Rights (ECrtHR)
UNITED STATES OF AMERICA
11 June 2013
Subject to appeal
European Convention on Human Rights (ECHR) | Procedural Matters
Article 8 of the ECHR- Right to Private and Family Life:
The Court observed that the father's complaint related "in essence to the non-enforcement of his access rights during summer vacations to be exercised in the USA and their subsequent limitation to the territory of Hungary until the child's sixteenth birthday".
The Hungarian Government argued "that the State authorities had complied with their positive obligations under Article 8" of the ECHR. In this it submitted that: the mother's objection to access abroad was because she feared the father would not return the child to Hungary; the father should have secured the recognition and enforcement of the final custody order in the United States of America; the initiation of criminal proceedings against the mother constituted an obstacle to the summer access visits; "the Hungarian authorities had acted diligently and accomplished all their duties provided under the law in order to enforce the domestic court's decision", imposing procedural fines and ordering the mother to reimburse the father's travel costs.
The ECrtHR reviewed the application of Article 8 of the ECHR, and as regards the State's obligation to take positive measures, it recalled "that in cases concerning the implementation of the contact rights of one of the parents, Article 8 include[d] a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the authorities to facilitate such reunion.
In so far as the interests of the child so dictate, those authorities must do their utmost to preserve personal relations and, if and when appropriate, to "rebuild" the family". The Court further noted that "the State's obligation [was] not one of result, but of means".
Furthermore, "the adequacy of a measure [was] to be judged by the swiftness of its implementation, as the passage of time [could] have irremediable consequences for relations between the child and the [non-resident] parent". Although coercive measures were not desirable, the use of sanctions could not be ruled out in the event of unlawful behaviour by the parent with whom the children live.
The Court further reiterated that "active parental participation in proceedings concerning children [was] required under Article 8 of the Convention in order to ensure the protection of their interests, and that when an applicant applie[d] for enforcement of a court order, his conduct as well as that of the courts [was] a relevant factor to be considered".
The Court held that its task was "to consider whether the measures taken by the Hungarian authorities were adequate and effective, as could reasonably have been expected in the circumstances, in order to facilitate summer reunions between the [father] and his child".
The Court noted that whilst the Hungarian courts allowed the majority of the father's requests for injunctions, "this occurred mostly following a considerable lapse of time", (the final decision on the father's request concerning the missing visit of August 2008 was issued on 23 June 2010 and the one concerning the missing visit of July/August 2009 only on 14 July 2011). The Supreme Court's judgment on summer access was in force but not implemented for over four years.
The Court considered that "this delay proved decisive for the [father]'s future relations with his son and had a particular quality of irreversibility" - "the lapse of time in question led to the de facto determination of the matter, in that the Pest Central District Court eventually held that since the Supreme Court's judgment new circumstances had occurred and [the child] no longer considered his father as a member of his family and seemed to be unwilling to visit him in the USA".
The Court held that the "financial sanctions imposed on [the mother] were inadequate to improve the situation at hand and overcome the mother's lack of cooperation".
As regards the submission that there was a risk the child would not be returned from an access visit in the United States of America, the Court referred to the 2007 Supreme Court judgment, which had specifically allowed such access to take place and that it was in the child's best interests.
The Court accepted that "the passage of time [could] change the circumstances" and could lead to a "re-assessment of the child's ties to his parents and their environments respectively and the re-regulation of access arrangements".
The Court noted that decisions of the Hungarian courts "to the effect that the [father]'s access rights as regards summer vacations should be exercised in Hungary until the child's sixteenth birthday [could] be seen as reflecting this principle". However, the Court observed that the considerable time, during which the Supreme Court's "judgment remained unenforced, frustrated the [father]'s rights, and had the eventual effect that his son became alienated from him".
In the light of the above, the Court concluded that, "notwithstanding the margin of appreciation afforded to the State, the national authorities did not take all the steps which could be reasonably required to enforce the applicant's access rights". Therefore, there had been a violation of Article 8 of the ECHR.
The Court held that having regard to the finding relating to Article 8 it was not necessary to examine whether here had been a violation of Article 6(1) of the ECHR.
The Court awarded the father the sum of 12,500 Euros in non-pecuniary damage and the sum of 10,000 Euros covering costs under all heads, also having regard to the fact that the authorities repeatedly ordered the mother of the applicant's child to compensate him for the costs incurred by travelling in vain to Hungary.
Author of the Summary: Peter McEleavy
Article 21 has been subjected to varying interpretations. Contracting States favouring a literal interpretation have ruled that the provision does not establish a basis of jurisdiction for courts to intervene in access matters and is focussed on procedural assistance from the relevant Central Authority. Other Contracting States have allowed proceedings to be brought on the basis of Article 21 to give effect to existing access rights or even to create new access rights.
A literal interpretation of the provision has found favour in:
S. v. S., 25 May 1998, transcript (official translation), Regional civil court at Graz, [INCADAT cite: HC/E/AT 245];
2 UF 286/97, Oberlandesgericht Bamberg, [INCADAT cite: HC/E/DE 488];
United States of America
Bromley v. Bromley, 30 F. Supp. 2d 857, 860-61 (E.D. Pa. 1998). [INCADAT cite: HC/E/USf 223];
Teijeiro Fernandez v. Yeager, 121 F. Supp. 2d 1118, 1125 (W.D. Mich. 2000);
Janzik v. Schand, 22 November 2000, United States District Court for the Northern District of Illinois, Eastern Division, [INCADAT cite: HC/E/USf 463];
Wiggill v. Janicki, 262 F. Supp. 2d 687, 689 (S.D.W. Va. 2003);
Yi Ly v. Heu, 296 F. Supp. 2d 1009, 1011 (D. Minn. 2003);
In re Application of Adams ex. rel. Naik v. Naik, 363 F. Supp. 2d 1025, 1030 (N.D. Ill. 2005);
Wiezel v. Wiezel-Tyrnauer, 388 F. Supp. 2d 206 (S.D.N.Y. 2005), [INCADAT cite: HC/E/USf 828];
Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006), [INCADAT cite: HC/E/USf 827].
In Cantor, the only US appellate decision on Article 21, there was a dissenting judgment which found that the US implementing act did provide a jurisdictional basis for federal courts to hear an application with regard to an existing access right.
United Kingdom - England & Wales
In Re G. (A Minor) (Enforcement of Access Abroad)  Fam 216 [INCADAT cite: HC/E/UKs 110].
More recently however the English Court of Appeal has suggested that it might be prepared to consider a more permissive interpretation:
Hunter v. Murrow   2 F.L.R. 1119, [INCADAT cite: HC/E/UKe 809].
Baroness Hale has recommended the elaboration of a procedure whereby the facilitation of rights of access in the United Kingdom under Article 21 could be contemplated at the same time as the return of the child under Article 12:
Re D. (A Child) (Abduction: Rights of Custody)  UKHL 51[INCADAT cite: HC/E/UKe 880].
Arrondissement judiciaire I Courterlary-Moutier-La Neuveville (Suisse) 11 October 1999, N° C 99 4313 [INCADAT cite: HC/E/CH 454].
A more permissive interpretation of Article 21 has indeed been adopted elsewhere, see:
United Kingdom - Scotland
Donofrio v. Burrell, 2000 S.L.T. 1051 [INCADAT cite: HC/E/UKs 349].
Wider still is the interpretation adopted in New Zealand, see:
Gumbrell v. Jones  NZFLR 593 [INCADAT cite: HC/E/NZ 446].
The position in Australia has evolved in the light of statutory reforms.
Initially a State Central Authority could only apply for an order that was ‘necessary or appropriate to organise or secure the effective exercise of rights of access to a child in Australia', see:
Director-General, Department of Families Youth & Community Care v. Reissner  FamCA 1238, (1999) 25 Fam LR 330, [INCADAT cite: HC/E/AU 278].
Subsequently it acquired the power to initiate proceedings to establish access rights:
State Central Authority & Peddar  FamCA 519, [INCADAT cite: HC/E/AU 1107];
State Central Authority & Quang  FamCA 1038, [INCADAT cite: HC/E/AU 1106].
L'article 21 a fait l'objet d'interprétations divergentes. Les États contractants qui privilégient une interprétation littérale considèrent que cette disposition ne crée pas de compétence judiciaire en matière de droit de visite mais se limite à organiser une assistance procédurale de la part des Autorités centrales. D'autres États contractants autorisent l'introduction de procédures judiciaires sur le fondement de l'article 21 en vue de donner effet à un droit de visite préalablement reconnu voire de reconnaître un nouveau droit de visite.
États préférant une interprétation littérale de l'article 21 :
S. v. S., 25 May 1998, transcript (official translation), Regional civil court at Graz, [Référence INCADAT: HC/E/AT 245].
2 UF 286/97, Oberlandesgericht Bamberg, [Référence INCADAT : HC/E/DE 488].
Bromley v. Bromley, 30 F. Supp. 2d 857, 860-61 (E.D. Pa. 1998), [Référence INCADAT : HC/E/USf 223] ;
Teijeiro Fernandez v. Yeager, 121 F. Supp. 2d 1118, 1125 (W.D. Mich. 2000) ;
Janzik v. Schand, 22 November 2000, United States District Court for the Northern District of Illinois, Eastern Division, [Référence INCADAT : HC/E/USf 463] ;
Wiggill v. Janicki, 262 F. Supp. 2d 687, 689 (S.D.W. Va. 2003) ;
Yi Ly v. Heu, 296 F. Supp. 2d 1009, 1011 (D. Minn. 2003) ;
In re Application of Adams ex. rel. Naik v. Naik, 363 F. Supp. 2d 1025, 1030 (N.D. Ill. 2005) ;
Wiezel v. Wiezel-Tyrnauer, 388 F. Supp. 2d 206 (S.D.N.Y. 2005), [Référence INCADAT : HC/E/USf @828@] ;
Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006), [Référence INCADAT : HC/E/USf @827@].
Cette décision est la seule rendue par une juridiction d'appel aux États-Unis d'Amérique concernant l'article 21, mais avec une opinion dissidente selon laquelle la loi mettant en œuvre la Convention en droit américain donne compétence aux juridictions fédérales pour connaître d'une demande concernant l'exercice d'un droit de visite préexistant.
Royaume-Uni - Angleterre et Pays de Galles
In Re G. (A Minor) (Enforcement of Access Abroad)  Fam 216 [Référence INCADAT : HC/E/UKs 110]
Plus récemment, la Cour d'appel anglaise a suggéré dans Hunter v. Murrow  EWCA Civ 976, [Référence INCADAT : HC/E/UKe 809], qu'elle n'était pas imperméable à l'idée de privilégier une interprétation plus large similaire à celle suivie dans d'autres États :
Quoique le juge Hale ait recommandé l'élaboration d'une procédure qui permettrait de faciliter le droit de visite au Royaume-Uni en application de l'article 21 en même temps que d'organiser le retour de l'enfant en application de l'article 12 :
Re D. (A Child) (Abduction: Rights of Custody)  UKHL 51 [Référence INCADAT : HC/E/UKe 880].
Arrondissement judiciaire I Courterlary-Moutier-La Neuveville (Suisse) 11 Octobre 1999 , N° C 99 4313 [Référence INCADAT: HC/E/CH 454].
Une interprétation plus permissive de l'article 21 a été adoptée dans d'autres États :
Royaume-Uni - Écosse
Donofrio v. Burrell, 2000 S.L.T. 1051 [Référence INCADAT : HC/E/UKs 349].
Une interprétation encore plus large est privilégiée en Nouvelle-Zélande :
Gumbrell v. Jones  NZFLR 593 [Référence INCADAT : HC/E/NZ 446].
Director-General, Department of Families Youth & Community Care v. Reissner  FamCA 1238, (1999) 25 Fam LR 330 [Référence INCADAT : HC/E/AU 278].