Outcome of the case:
FOR THESE REASONS, THE COURT
1. Holds, by nine votes to eight, that there has been a violation of Article 8 of the Convention;
2. Holds, by ten votes to seven,
(a) that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into Latvian lati at the rate applicable on the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
3. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
CONCURRING OPINION OF JUDGE PINTO DE ALBUQUERQUE
International parental child abduction is again on the agenda of the Grand Chamber. Three years after having laid down its own standard in Neulinger and Shuruk, the Grand Chamber has been called upon to review it, in the context of the same sources of international family law and international human rights law. In other words, the major question put to this Grand Chamber is the theoretical and practical sustainability of its own very recent case-law.
I agree with the finding of a violation of Article 8 of the Convention, but disagree with the equivocal principles set out by the majority in paragraphs 105-08 and its insufficient assessment of the facts of the case. My opinion is divided into three parts. The first part will address the assessment required under the European Convention on Human Rights of return orders in international child-abduction cases and the much-proclaimed need for a review of the Neulinger and Shuruk standard. The second part will examine the nature of the mechanism established by the Hague Convention on the Civil Aspects of International Civil Abduction and its articulation with the Convention. Finally, in the third part the Convention standard will be applied to the facts of this case, taking into special consideration the inchoate nature of the alleged “right to custody” of the left-behind parent at the moment of removal.
Return orders in international parental child-abduction cases under the Convention
Article 8 of the Convention imposes positive obligations on the Contracting Parties to reunite a parent with his or her child, when the latter has been wrongfully removed to or retained in a foreign country by the other parent, and namely to take effective action to enforce a return order in respect of the abducted child to his or her country of habitual residence, to grant a return order or even to bring a return action on behalf of the left-behind parent in the country of habitual residence. These positive obligations must be interpreted in the light of the Hague Convention, all the more so where the respondent State is also a party to that instrument. Thus, the Court has committed itself to the Hague Convention’s philosophy of restoring the child’s situation as it existed before the abduction took place. Accordingly, the court in the host country must order the child’s return to his or her country of habitual residence, except when one of the grounds for refusal of return provided for in Articles 13 and 20 of the Hague Convention exists, whilst the court in the country of habitual residence has sole competence in deciding on the merits of the custody dispute. Although return proceedings are urgent and return orders are to be rapidly enforced, the granting of return orders in international child-abduction cases requires a detailed or in-depth assessment of the entire family situation by the court in the host country in the specific context of the return application. When the decision-making process of the court in the host country or the resulting assessment is deficient, the granting of a return order under the Hague Convention may violate the Convention, since the interference with the child’s right to family life with the abducting parent may not be necessary in a democratic society.
That being said, the detailed examination of the child’s situation clearly does not replace custody proceedings in the State from which the child was abducted, since the court in the host country is not supposed to proceed to an ex officio, free-standing evaluation of the overall merits of the case, based on the assessment of the situation of the child and his or her family and the present and future social and cultural environment. Only those issues directly related to the child’s abduction raised by the return application may be addressed by the court in the host country, and then only in so far as they relate to the urgent and provisional decision on the child’s immediate future. This was and remains the Neulinger and Shuruk test. No less, no more. The detailed examination by the court in the host country does not imply any change of jurisdiction over parental responsibility, which remains in the State of the child’s habitual residence. Hence, Neulinger and Shuruk did not level the basic difference, enshrined in Article 19 of the Hague Convention, between Hague return proceedings and custody proceedings.
The articulation between the Convention and the Hague Convention
The Hague Convention aims at combating international child abduction by the father or the mother through a mixed mechanism of intergovernmental and judicial cooperation. Whenever a child under the age of 16 is unlawfully removed from his or her country of habitual residence by one of the parents, the Hague mechanism purports to restore, as soon as possible, the status quo prior to the removal. Three objective conditions are required to establish the unlawfulness of the removal: (1) the existence of custodial rights in respect of the left-behind parent immediately prior to the removal; (2) the effective exercise of these rights prior to the removal; and (3) the determination of the child’s habitual residence at the time of removal. No additional subjective element, such as the mens rea of the abducting parent, is required. In these circumstances, the child’s return to the country of habitual residence is to be ordered by the court in the host country. The return application may be rejected if one of the three conditions referred to above for application of the Hague Convention is not met. The application may also be rejected if the left-behind parent consented to removal or subsequently acquiesces to the removal, or if certain circumstances related to the child’s welfare exist, namely if (1) there is a grave risk that the child’s return would expose him or her to physical or psychological danger or otherwise place the child in an intolerable situation; (2) a child who has attained a certain degree of maturity objects; (3) the child has settled in the host country and a year has elapsed between the removal and the commencement of the judicial return proceedings; or (4) the fundamental principles of the requested State relating to the protection of the child’s human rights would not permit it.
Since the Hague Convention terminology is to be interpreted with regard to its autonomous nature and in the light of its objectives, custodial rights may include rights referred to by the national legislation of the country of habitual residence under a different terminology, and do not necessarily equate to rights referred to as “custody rights” by the law of any particular country. For instance, an unmarried parent who in fact takes care of the child may nonetheless be denied custodial rights. The evaluation of legal and factual issues, such as rights of custody and habitual residence or allegations of grave risk of harm, is a matter for the court or other competent authority deciding upon the return application. Other than as provided for by Article 30 of the Hague Convention, each Contracting Party to the Hague Convention determines its own rules of evidence in return proceedings. The burden of proof in the case in chief for return is on the left-behind parent and in respect of the defences to return it is on the abducting parent; in some countries, however, different burdens of proof are required depending upon the defence proffered. Although the evidence admitted in return proceedings is not bound by strict criteria, the taking and admission of evidence should be governed by the necessity for speed and the importance of limiting the enquiry to the matters in dispute which are directly relevant to the issue of return.
In view of the lack of any precise regulations on the enforcement procedure in the Hague Convention, the child’s return may be ordered to the courts, the central authority or other authorities of the country of habitual residence, or even to the left-behind parent or a third person, the child sometimes being still accompanied by and under the care and control of the abducting parent until the authorities of that State rule otherwise. The return order may be made in conjunction with some protective measures, such as stipulations, conditions or undertakings, as long as they are limited in scope (that is to say, do not intrude on custody issues to be determined by the courts of the State of habitual residence) and duration (that is to say, they remain in effect only until such time as a court in the country of habitual residence has taken any measures required by the situation).
Hence, the Hague Convention is basically a jurisdiction-selection treaty, but it is not blind to substantive welfare issues concerning the individual child involved, since it imposes an assessment of that child’s best interests in Article 13 and of his or her human rights in Article 20. Only an over-simplistic view of the Hague Convention’s general public-order purposes and tangible effects on the life of the individual abducted child and his or her parents could support the assertion that this is a merely procedural text. The opposite conclusion is also imposed by the almost universal ratification of the United Nations Convention on the Rights of the Child, which reflects the international consensus on the principle of the paramountcy of the child’s interest in all proceedings concerning him or her and on the perspective that every child should be viewed as a subject of rights and not merely as an object of rights. Moreover, the sociological shift from a non-custodial abductor to a custodial abductor, who is usually the primary caregiver, warrants a more individualised, fact-sensitive determination of these cases in the light of a purposive and evolutive approach to the Hague defence clauses.
Against this background, the question of the articulation between the Hague Convention and the Convention becomes crucial. The human rights protection mechanisms established by these two international treaties clearly overlap, at least with regard to the defences foreseen in Articles 13 and 20 of the Hague Convention. Ultimately, both Conventions provide for the restoration of the status quo in international abduction cases, in harmony with the child’s best interests and human rights. The problem lies mainly with the alleged “exceptional nature” of the Hague Convention provisions regarding the defences to return and their restrictive interpretation. Between the Scylla of a minimalist and automatic application of the Hague defences to return, which would render them void of any substantive content, and the Charybdis of creating a new, free-standing defence of the child’s best interests, overlapping the merits of the custody dispute, the Court has resisted both dangers and chosen the middle solution, which is that the Hague Convention defences to return exhaustively determine what is in the best interests of the child. However, these defences do include the human rights of the child. And they are to be taken seriously.
In assessing return orders in international child-abduction cases, the Court’s remit is limited to the child’s welfare-based defences to return in the Hague Convention. The detailed, in-depth examination under the Convention may not, and need not, be wider. It suffices that the available defences to return be interpreted in the light of present-day social conditions, and namely of the sociological trends ascertained in recent years. That was the Grand Chamber’s purpose three years ago: Neulinger and Shuruk was a call for an evolutive and purposive interpretation of the Hague Convention.
Hence, the Court must confine itself to examining whether the courts in the host country acted in conformity with the Convention, but it may also enter into the question of whether the Hague Convention was properly interpreted and applied, especially when its interpretation ignores present-day social conditions and its application empties the text of much of its useful effect or even prejudices its ultimate purposes. Under the Convention, the abduction of a child triggers the application of a rebuttable presumption that it is in the best interests of the child to be returned as soon as possible to the country of habitual residence. That presumption must be applied unless there are reasonable grounds to believe that the human rights of the child, including his or her Article 8 rights, would be endangered in the event of return. In order to rebut the said presumption, the applicant must have alleged and proved that giving effect to the presumption would conflict with the child’s human rights, namely with his or her right to family life, and the court of the host country must be satisfied that this is the case.
While it is axiomatic that “restrictions” to human rights must be interpreted narrowly, defences to return are not, technically speaking, “restrictions” to any specific human right. Such defences are, in the light of the Convention, mere grounds for rebuttal of a presumption, and they are not necessarily subject to a restrictive interpretation. Thus, in the event of contradictory evaluations of the child’s situation, resulting from the confrontation between a restrictive interpretation of the Hague Convention and a purposive and evolutive interpretation of the same text in the light of the Convention, the latter should prevail over the former. Although in virtually all cases the Convention and the Hague Convention march hand in hand, when they do not, it is up to the Convention to guide the way.
The practical effect of this line of reasoning is that, ultimately, the Court has the final word on the assessment of the best interests and the human rights of the abducted child in Europe, be this prior to the execution of the return order or even after its execution. This line of reasoning also impacts on the remit of the courts in the host country in assessing return applications, in so far as they must examine the situation of the child and the family in accordance with the Convention. In Europe, the judge in the host country has to interpret Articles 12, 13 and 20 of the Hague Convention in the light of the Convention and the Court’s case-law. Such analysis is particularly important in cases of return to States which are not under the jurisdiction of the Court, where the parties will be unable subsequently to bring complaints to the Court if their rights in the country of habitual residence are breached.
In an international mechanism that has no oversight body to ensure the uniformity of the interpretation and implementation of the Contracting Parties’ obligations and to sanction recalcitrant States accordingly, there is a real risk that the legislation implementing the Hague Convention and the case-law of domestic courts applying it are very different from one Contracting Party to another. Reality has proved this risk to be very real. The bitter consequence of this institutional weakness is clear to see: there is little room for progress where such wide discrepancies occur in the functioning of the international mechanism and national authorities are free to give foreign precedent little weight, or no weight at all, for the purpose of interpreting the Hague Convention. In the absence of any meaningful supranational review of the way in which the Contracting States implement, interpret and apply the Hague Convention, courts of Contracting States do as they please, sometimes ostensibly and one-sidedly ruling in favour of the national party. This inherent weakness in the Hague mechanism is magnified by the ambiguous and undefined legal terminology utilised in the Hague Convention and the lack of procedural rules on the conduct of judicial return proceedings, such as on evidentiary hearing, discovery, burden of proof, appeals, stay of orders pending appeals and interim measures. The damaging effect of differing, contradictory and confusing national case-law is further amplified by the fact that the enforcement stage of the return order is not regulated at all in the Hague Convention, and more specifically no legal basis is provided for stipulations, conditions or undertakings imposed on the parties or a system of judicial cooperation for the implementation of “mirror orders”.
In this context, the fact that the Court is competent to ascertain whether in applying the Hague Convention the domestic courts secured the human rights set forth in the Convention diminishes the risk of divergent case-law. Moreover, the temptation of forum shopping is excluded in a system of human rights protection where all national courts are subject to scrutiny by an international court, which ensures that there is no unjustified interpretation in favour of the abducting parent. Thus, progress in the protection of the child’s rights, comity among States and cooperation in cross-border child abduction is furthered by the uniform application of the Hague Convention obligations interpreted in the light of the Convention, at least among the Contracting Parties to the Convention.
In spite of some systemic shortcomings, the Hague Convention has proved to be a crucial instrument in helping to resolve the drama of cross-border parental child abduction. Its positive legacy is undeniable and should be preserved and fostered. Nevertheless, both the universal acknowledgment of the paramountcy of the child’s best interests as a principle of international customary and treaty law, and not a mere “social paradigm”, and the consolidation of a new sociological pattern of the abducting parent now call for a purposive and evolutive interpretation of the Hague Convention, which is first and foremost mirrored in the construction of the defences to return in the light of the child’s real situation and his or her immediate future. A restrictive reading of the defences, based on an outdated, unilateral and over-simplistic assumption in favour of the left-behind parent and which ignores the real situation of the child and his or her family and envisages a mere “punitive” approach to the abducting parent’s conduct, would defeat the ultimate purposes of the Hague Convention, especially in the case of abduction by the child’s primary caregiver. Such a construction of the Hague Convention would be at odds with the human rights and especially the Article 8 rights of the abducted child in Hague return proceedings, respect for which undeniably merges into the best interests of the child, without evidently ignoring the urgent, summary and provisional nature of the Hague remedy.
The application of the European standard to the facts of the case
It is established that the Latvian courts omitted to consider properly the psychological situation of the child, the child’s welfare situation in Australia, and the future relationship between the mother and the child were the child to be returned to Australia. In the light of Neulinger and Shuruk, these deficiencies in the national proceedings alone would have sufficed to find a violation under Article 8, since they did not comply with the “in-depth” or, in the Grand Chamber’s new jargon, “effective” examination required by Article 8. In practical terms, the Grand Chamber applied once again the Neulinger and Shuruk test.
The Latvian courts’ superficial, hands-off handling of the child’s situation was rightly criticised by the Grand Chamber. Having on the one hand taken into consideration the psychologist’s report presented by the mother for the purpose of having execution of the return order stayed pending the appeal, but having on the other hand ignored that same report in rendering the appeal judgment, the domestic courts not only contradicted themselves, but failed to consider effectively the report’s conclusions as to the serious risks associated with the child’s return, and this on the basis of the wrongful argument that the psychologist’s report could not serve as evidence to rule out the child’s return. The traumatising manner in which the Riga Regional Court’s decision was executed and the far-reaching limitations imposed on the mother’s access to her daughter by the clearly punitive decision of the Australian family court were additional and regrettable consequences of the Latvian courts’ inadequate handling of the case, which failed to prepare the child’s physical return and to examine whether effective safeguards of the child’s rights were in place in Australia and if the mother was in a position to maintain contact with her child in the event of a return, and, if appropriate, to make such a return contingent upon adequate undertakings, stipulations or orders with a view to not hindering or significantly restricting the mother’s contact with the child.
Worse still, the Latvian courts accepted a decision by the Australian court establishing joint parental responsibility of the applicant and T. with effect from E.’s birth, in spite of the fact that the applicant and T. were not married to each other, the child’s birth certificate did not name the father and the child was born while the mother was still married to another man. The Australian decision was taken after the removal of the child from Australian territory and with retroactive effect. It appears from the case file that the Australian decision was based on photographs, e-mail printouts and the sole testimony of T. No paternity tests were performed. No witnesses heard. In other words, the Latvian domestic courts did not even consider if the conditions for the application of the Hague Convention had been met, namely if they were dealing with a child abduction in the sense of the Hague Convention.
In reality, it is obvious that the facts of the case at hand do not amount to a child abduction, since T. had no parental rights whatsoever, let alone custodial rights, “immediately before the removal” of the child from Australia, as Article 3 a) of the Hague Convention requires. Officially the applicant was a single mother and the child had no registered father when they both left Australia on 17 July 2008. From the very day of the child’s birth until the day she left Australia, T. not only failed to officially recognise his fatherhood, but even denied his paternity before the Australian public authorities. T. only applied for, and gained, “custodial rights” after the removal of the child, which means that at the time of the removal the mother was de jure the sole person with parental responsibility, including custodial rights, over the child. The Australian court’s decision of 6 November 2008 could not be construed in such a way as to circumvent the time requirement of Article 3 a) of the Hague Convention and to substantiate ex post facto an otherwise unfounded return claim.
Taking human rights seriously requires that the Hague Convention operates not only in the best interests of children and the long-term, general objective of preventing international child abduction, but also in the short-term, best interests of each individual child who is subject to Hague return proceedings. Justice for children, even summary and provisional justice, can only be done with a view to the entirety of the very tangible case at hand, that is to say, of the actual circumstances of each child involved. Only an in-depth or “effective” evaluation of the child’s situation in the specific context of the return application can provide such justice. In layman’s terms, Neulinger and Shuruk is alive and well. It was and remains a decision laying down valid legal principles, not an ephemeral and capricious act of “judicial compassion”.
In the specific case at hand, the domestic courts not only forwent an in-depth or “effective” evaluation of the child’s situation, but even failed to check the conditions of applicability of the Hague Convention in the first place. There was simply no legal basis for the interference with the applicant’s right to family life with her child, the removal of the child from Latvia being the only unlawful abduction in this case. Therefore, I find a violation of Article 8 of the Convention.
JOINT DISSENTING OPINION OF JUDGES BRATZA, VAJIĆ, HAJIYEV, ŠIKUTA, HIRVELÄ, NICOLAOU, RAIMONDI AND NUSSBERGER
1. We regret that we are unable to agree with the view of the majority of the Court that the applicant’s rights under Article 8 of the Convention were violated in the present case.
2. We should make it clear at the outset that our difference of opinion with the majority relates not to the general principles to be applied in cases of child abduction covered by the Hague Convention, on which we are in full agreement with the other judges of the Court. In particular, we agree that, despite the undeniable impact that return of the child may have on the rights of the child and parents, Article 8 does not call for an in-depth examination by the judicial or other authorities of the requested State of the entire family situation of the child in question. We further agree that the Article nevertheless imposes on the national authorities of that State, when examining a case under Article 13 (b) of the Hague Convention, to consider arguable claims of a “grave risk” for the child in the event of his or her return and, where such a claim is found not to be established, to make a ruling giving sufficient reasons for rejecting it.
3. Where we part company with the majority is on the question whether, in rejecting the applicant’s claim in the present case and ordering the return of her child to Australia, the national courts of Latvia sufficiently complied with those procedural requirements.
4. We note that the Latvian courts, at first instance and on appeal, were unanimous as to the response to be given to the application for return of the child lodged by the child’s father.
In a reasoned judgment of 19 November 2008, the District Court, after a hearing attended by both parents, held that the Hague Convention was applicable and granted T.’s application, ordering the child’s immediate return to Australia. The court rejected the applicant’s claim under Article 13 of the Hague Convention, holding, on the basis of photographs and copies of e-mails between the applicant and T.’s relatives, that T. had cared for the child prior to her departure for Latvia. While noting that witness statements referred to arguments between the parties and to the fact that T. had behaved irascibly towards the applicant and the child, it held that this did not enable it to conclude that T. had not taken care of the child. The court dismissed the applicant’s claim that the child’s return posed a risk of psychological harm to E. as unsubstantiated and as being based on an unfounded assumption.
5. On 26 January 2009 the Riga Regional Court upheld that decision, after a hearing at which both parents were again present and legally represented.
In support of her claim that her daughter’s return to Australia would expose her to psychological harm, the applicant submitted for the first time a certificate, prepared at her request by a psychologist, which stated, inter alia, that, given the child’s young age, an immediate separation from her mother was to be ruled out, “otherwise the child [was] likely to suffer psychological trauma, in that her sense of security and self-confidence could be affected”.
She further claimed that T. had ill-treated her and the child and that he was liable to a prison sentence in Australia in respect of criminal charges brought against him.
6. Central to the majority’s view that the Regional Court was in breach of its procedural obligations under Article 8 is the contention that the court refused to take into account the applicant’s claim, which is said to have been supported by the certificate and by the witness statements, that the child’s return to Australia would expose her to a “grave risk” of harm.
7. We are unable to accept this view, which does not in our opinion do justice to the decision or reasoning of the national courts. As to the certificate, we note that the opinion of the psychologist was confined to the harm to the child which would flow from an immediate separation from her mother. The certificate did not directly address the question of the child’s return or suggest that it would be in any way harmful if E. were to return to Australia accompanied by her mother. The Regional Court did not refuse or fail to take the certificate into account. On the contrary, it emphasised that the certificate concerned only the issue of the separation of mother and child, which was a matter relating to custody rights which fell to be determined not by the Latvian courts as the courts of the requested State, but exclusively by the Australian courts. Having regard to the certificate’s contents, we see no justification for the view expressed in the judgment that the Regional Court should have gone further by submitting the document for cross-examination, still less that it should have ordered a second expert opinion of its own motion.
8. As to the allegations made by the applicant against T., the Regional Court expressly examined the applicant’s claims but dismissed them on the grounds that “no evidence [had] been submitted which could, even indirectly, support the allegations”. 9. It is argued in the judgment that the Regional Court should have done more to examine whether it was feasible for the applicant to return to Australia with the child or whether the return of the child would inevitably have resulted in her separation from her mother. We do not share this view. There was clearly no legal impediment to the return of the applicant; she had not only lived in Australia for several years but had acquired Australian citizenship in 2007. Further, there was nothing in the Regional Court’s judgment which affected her right to retain custody of the child and to accompany her back to Australia. Moreover, it does not appear that she argued before the Regional Court that, for reasons of personal safety or otherwise, she could not under any circumstances contemplate returning to Australia. Certainly, she had alleged that T. had ill-treated her and the child but, as noted above, this allegation was rejected by the court as wholly unsubstantiated. Moreover, the court went on to observe that there were no grounds for doubting the quality of the welfare and social protection provided to children in Australia, given that, according to a sworn affidavit, Australian legislation provided for the security of children and their protection against ill-treatment within the family. We note, in conclusion, that despite her claim before the Regional Court that she had no ties in Australia and that were she to return there she would be unemployed and would have no income, it appears that the applicant has in fact returned to live in Australia, where she has found accommodation and is in employment.
10. We are similarly unpersuaded by the argument implicit in the judgment that the Latvian courts should have taken the initiative by requesting further information from the Australian authorities about T.’s criminal profile, previous convictions and the charges of corruption allegedly brought against him. In proceedings under Article 13 of the Hague Convention, the burden lies on the party to adduce evidence to substantiate a claim of “grave risk” if the child were to be returned. As found by the Latvian courts, the applicant failed to adduce any evidence to support such a claim, even indirectly.
11. While the reasons given by the Latvian courts for ordering the return of E. were succinctly expressed, we consider, contrary to the view of the majority, that they adequately responded to the applicant’s arguments and that the examination of the claims made by the applicant satisfied the procedural requirements imposed on them by Article 8 of the Convention.
12. In view of this conclusion, all but Judge Bratza would have refused an award of costs; having regard to the fact that the applicant’s claim was in the event successful, Judge Bratza voted in favour of the grant of her costs.
97. The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13, first paragraph, (b)). The Court further notes that the European Union subscribes to the same philosophy, in the framework of a system involving only European Union member States and based on a principle of mutual trust. The Brussels II bis Regulation, whose rules on child abduction supplement those already laid down in the Hague Convention, likewise refers in its Preamble to the best interests of the child (see paragraph 42 above), while Article 24 § 2 of the Charter of Fundamental Rights emphasises that in all actions relating to children the child’s best interests must be a primary consideration (see paragraph 41 above).