A few weeks ago, the Grand Chamber issued its judgment in the case of X. v Latvia (appl.no 27853/09) on child abduction by one of the parents. The judgment relates amongst other to the "best interests of the child". I am happy to present a guest post by two experts, Christina Jeppesen de Boer and Merel Jonker, colleagues here at Utrecht University and connected to UCERF, the Utrecht Centre for European Research into Family Law. This is their commentary on the case:
Does
the European Court of Human Rights get it “right” or “wrong”
in international child abduction?
Christina
G. Jeppesen de Boer and Merel Jonker
Following
the judgments of the European Court of Human Rights (ECtHR) in Neulinger and Shuruk v. Switzerland (841615/07), Sneersone and
Campanella v. Italy (14737/09) and the earlier Chamber judgment of the Court in X v. Latvia, all cases concerning an application from an “abducting”
mother, the final verdict of the Grand Chamber in X v. Latvia was
awaited with much interest. There seems to be broad consensus that
the ECtHR is getting it “wrong” in international child abduction
cases. At least this seemed so in many contributions of this summer’s
2nd International Family Law and Practice Conference 2013, at London Metropolitan University.
All
the above-mentioned cases concerned a primary carer, a mother’s abduction
of the child to her place of origin following a divorce or
relationship breakup. In all cases, the national courts had ordered
the return of the child (in some cases only after lengthy procedures
at the appellate stage) and the application concerned the question
whether these return orders infringed the mother’s and the child’s
right to respect for family life. In all cases the ECtHR (eventually)
found an infringement of article 8 European Convention on Human
Rights (ECHR) based upon a too mechanical or not sufficiently detailed assertion of
the child’s interests.
Critics
of these decisions argue that the ECtHR does not pay due consideration to
the main purpose of the Hague Convention, the purpose being the
immediate return of the child subject to specified exceptions that
have been construed narrowly in case law. The principle of immediate
return is based upon the principle that the court of the jurisdiction
from which the child was abducted (the habitual residence) is better
suited to assess which custody situation and possible relocation is
in the best interest of the child.
Facts
The
facts of X v. Latvia were the following: the mother, originally
Latvian, had settled in Australia where she gave birth to a child in
2005. At the time of giving birth, the mother was still married to another
man than the father of the child. However, paternity (of any father)
was initially not established. The mother lived together with the
father, however, formally the father rented accommodation with the
mother who received single-parent benefits. The mother acquired
Australian nationality in 2007. The relationship between the mother
and the father deteriorated and in 2008 she left Australia for Latvia
taking the child, aged three years and five months, with her.
Subsequently,
the father submitted an application to the Australian Family Court to
establish parental rights in respect of the child and applied for the
return of the child under the Hague Convention. The Family Court
established his paternity on the basis of facts supplied by the
father (no DNA testing). It is further established that the mother
and father had had joint parental responsibility for their child
since birth (retroactively) in a decision dated 6 November 2008. The
mother had been invited to attend the hearing in person or to follow
the hearing by telephone but had not done so. She also did not appeal
the decision.
The
request for the return of the child is received by the Latvian
Central Authority in September 2008. The return request made by the
Australian Central Authority was accompanied by an affidavit
certifying, without prejudice to the issue of paternity (the decision
by the Australian Family Court had not been given yet) that on the
date the mother left Australia with the child, the father had
exercised joint parental responsibility over the child.
The
return request is heard in Latvia in two instances (district and
regional court) with the father being present for the proceedings.
Before the Latvian courts, the mother argued that the father did not
have “custody” rights as he had not sought to have his paternity
established prior to her departure from Australia. She further,
amongst others, argued that the father had acted abusively, that the
child was connected to Latvia and she also produced (at the appellate
stage) a certificate from a psychologist stating that the child would
suffer trauma if separated from the mother. In short, the Latvian
courts ordered the return of the child thereby refusing to review
Australian law concerning the custody rights of the father and
further dismissing the arguments raised by the mother considering
these to pertain to the merits of the custody issue which is for the
court of the habitual residence to decide (the Australian Family
Court). Following an “abduction” of the child in Latvia by the
father, the Latvian Central Authority assisted the father in
supplying information that authorized his right to return to
Australia with his daughter. The mother then brought an application
against Latvia before the ECtHR alleging an infringement of article 8
of the ECHR.
Comments
In our
opinion there are three intrinsically relevant issues in this case.
The first is the relationship between the Hague Convention and the
ECHR (1). The second is the understanding of the requirement of the
best interests of the child such as enshrined in article 3 of the UN
Convention on the Rights of the Child (2). A third essential issue in
this case concerns the question whether, in fact, there was a
wrongful removal contravening custody rights given the fact that the
mother was the sole legal parent at the time of the “abduction”.
This last issue will not be dealt with in this case note.
(1)
The first inherent issue concerns the relationship between the ECHR
and the Hague Convention as a matter of hierarchy of conventions –
does one of these conventions take precedence? The ECtHR found that
the relationship between the two conventions involves “a combined
and harmonious application” (para. 94) of both conventions. Article 8
of the European Convention on Human Rights is to be “interpreted in
the light of the requirements of the Hague Convention” but also in
the light of the Convention on the Rights of the Child, 1989 (CRC),
(para. 93). The Court also held that “consideration of international provisions
should not result in conflict or opposition (…) provided that the
Court is able to perform its task in full”, i.e. to ascertain
whether the requirements of the ECHR have been observed.
Consequently, the Court stressed the harmony of conventions, yet also
the obligation to ascertain independently the rights inherent to the
ECHR. Although not stated directly this does involve precedence of
the ECHR when the issue concerns the application of the Hague
Convention by an ECHR member state. The concurring opinion of judge
Pinto de Albuquerque is more direct as precedence is presumed (“the
latter should prevail over the former”, para. 43 of the judgment). In
our opinion the ECHR must have precedence, if one accepts that human
rights are fundamental rights,
the content being evolutive.
(2) An
understanding of the child’s best interests – an understanding of
these interests as relating to what is generally thought to be best
for children as a group and the understanding of the requirement that
a decision is in the (primary or paramount) interest of an individual
child. The Hague Convention may be viewed to operate primarily on the
understanding of what is best for children as a group. The
assumptions being that the operation of the convention may prevent
child abduction in the first place and that secondly the court of the
child’s habitual residence is better suited to assess the interest
of the individual child with respect to custody, care and possible
relocation. The main exception to returning the child being narrowly
construed to “grave risk” (article 13(b)). The understanding of
what is best for children as a group may be viewed as a legal
construction which may prove distant
from the reality of the individual child, for example, in situations
where the “abductor” is the primary carer who is unable or
unwilling to return with the child. At this point it must be kept in
mind that at the time of the draft of the Hague Convention, the issue
was more the abduction by the other non-custodial parent. Since then
underlying changes in national laws; the increasing allocation of custody
rights to both parents also after divorce and for unmarried parents,
even if one parent is obviously “a primary carer”, all lead to
concerns with respect to the narrow exception which in most cases
will result in a return order. Is the exception too narrow? Should
the welfare of an individual child be subsumed under the generally
constructed welfare of children?
The
dividing line between that which is considered to be best for
children as a group and in the primary interest of an individual
child is not clear from the CRC itself. The principle enshrined in
article 3 relates to both contexts (CRC General Comment No.
14(2013), IV, A(b) and (c)). Nonetheless, the interests of an
individual child cannot (necessarily) be understood “as being the
same as those of children in general”. Article 3(1) requires that
“the best interests of a child must be assessed individually”
(CRC General Comment IV A(c)). When it comes to custody decisions the
CRC comment stresses a best interest’s principle of the particular
(individual) child stating explicitly that it is contrary to those
interests “if the law automatically gives parental responsibilities
to either or both parents”. Yet with respect to the Hague
Convention no distinction is made, this convention is endorsed as a
facilitator of the child’s best interests (CRC General Comment No.
14(2013), V, 1(c), No. 67/68). Consequently, the dividing line
between an understanding of the best interest’s principle in
relation to children as a group and the individual child is unclear.
In our opinion the lack of clarity undermines any substantive content
of this principle.
We
therefore believe that the ECtHR got it “right” in this case by
stressing the assessment in relation to an individual
child rather than paying “lip
service” to the Hague Convention. This Convention may be viewed to
provide a “greater good”, yet it cannot ignore the reality of the
individual child in view of the fact that at times primary carers
can also be the main abductors.
