No return order did not breach father’s human rights
By:0 commentsMarch 12, 2018
I’ve written here several times now about European Court of Human Rights (ECHR) cases in which a parent has complained about the failure of a country’s courts to secure the return of an abducted child under the Hague Convention. For example, there was the case of the father whose rights were breached by the failure of the Slovakian courts to enforce a return order, and the case of the mother whose rights were breached by the failure of the Polish courts to enforce return orders made in Ireland. When I first saw the recent case of Royer v Hungary I thought I was in for more of the same. However, it turned out to be something a little different.
In fact, it seems to me that the father’s application in Royer v Hungary was pretty well doomed from the outset, as he was not complaining about a failure to enforce, or a failure to deal with the case, but rather about the fact that the Hungarian court decided not to order a return, a decision it was perfectly entitled to make.
Briefly, the facts of the case were that the father is French and the mother is Hungarian. They met in 2003 and in 2009 the mother moved to France to live with the father. Their son was born in October 2013. However, the relationship soon broke down and on 4 January 2014 the mother returned to Hungary with the child, without the prior knowledge or authorisation of the father. The mother and the child continue to live in Hungary.
The father issued proceedings in the French court. The court found that the child had been illegally taken from France, and granted the father sole custody, with the mother being allowed supervised contact for two hours every other Saturday. However, the father did not commence proceedings for the summary return of the child under the Hague Convention on Child Abduction until nearly a year after the abduction.
The mother raised an Article 13(b) defence to the application. As regular readers may know, Article 13(b) of the Convention provides that the court of the state that is requested to order the return (i.e. the state to which the child has been abducted) is not bound to order the return of the child if it is established that “there is 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.”
The Hungarian court found the defence to be made out. It concluded that if the child (who was still being breastfed) were returned to France, he would be placed in uncertain circumstances, only seeing his mother every second week for a couple of hours. Further the father, on his own submission, would be away from home a lot (presumably at work), during which time the father suggested that the child should be looked after by the father’s sister. Further to that, it was noted that the father had lodged his application almost a year after the abduction and that, although he had visited Hungary on a number of occasions, he had not been in contact with the child. For these reasons the Hungarian court dismissed the father’s request, under Article 13(b).
There were further proceedings in Hungary after this, but they did not essentially alter the position. The Hungarian courts refused to order the return of the child. The father therefore made his application to the ECHR, alleging that the failure of the Hungarian courts to order a return breached his right to respect for his private and family life, under Article 8 of the European Convention on Human Rights.
The ECHR held that there has been no violation of Article 8. Quite simply, the Hungarian court had correctly applied the relevant principles, had properly examined the allegation of grave risk, and had come to a reasoned decision based upon its findings. It was quite entitled to find that ordering the return of the child to France would have only caused him psychological trauma. The ECHR cannot question the assessment of the domestic authorities, unless there is clear evidence of arbitrariness. There was no such evidence here. On the contrary, the Hungarian court examined the case and gave judgments that paid particular consideration to the principle of the paramount interests of the child.
You can read the full report of Royer v Hungary here.
Photo of the Danube river in Hungary by Achim Raschka / CC-BY-SA-3.0 via Wikipedia
March 12, 2018
Categories: Children and divorce