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.
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.
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.