Applications lodged by the parent whose child had been abducted by the other parent
II. RELEVANT INTERNATIONAL AND DOMESTIC LAW A. International law 56. Article 11 of the Convention on the Rights of the Child of 20 November 1989, which was ratified by France on 7 August 1990 and by Portugal on 21 September 1990, requires States Parties to “ take measures to combat the illicit transfer and non-return of children abroad ”. For that purpose, States “shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements”. 57. The relevant provisions of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which was ratified by Portugal on 29 September 1983 and by France on 16 September 1982, provide : Article 1 “The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Article 2 “ Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available. ” Article 3 “The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 6 “ A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. ... ” Article 7 “Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures: (a) to discover the whereabouts of a child who has been wrongfully removed or retained; (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) to exchange, where desirable, information relating to the social background of the child; (e) to provide information of a general character as to the law of their State in connection with the application of the Convention; (f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access; (g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; (i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ... ” Article 12 “Where a child has been wrongfully removed or retained ... and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ...” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) 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 judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child ’ s habitual residence.” 58. The relevant provisions of the Convention on Judicial Cooperation between France and Portugal for the Protection of Minors of 20 July 1983 provide : Article 18 – Right of action “1. Where the voluntary return of the child is refused, Central Authorities shall refer the case without delay, through the intermediary of the court prosecution service, to the appropriate judicial authorities to secure either the enforcement in the requested State of the enforceable decisions taken in the requesting State, or a ruling on the application for the child ’ s return. 2. The case may also be referred to the judicial authorities by the interested party. 3. Enforcement of decisions shall be sought from the court within whose jurisdiction the minor is located or presumed to be located.” Article 19 – Protective procedure for restoring the status quo “1. The court of the State to or in which the child has been removed or wrongfully retained shall order, as a protective measure, the child ’ s immediate return unless the person who removed or retained the child establishes that : (a) more than one year has elapsed between the removal or retention and the making of an application to the judicial authorities of the State where the child is located; or (b) at the time of the alleged violation the person to whom custody had been awarded before such removal was not exercising his right of custody of the child either effectively or in good faith; or (c) the child ’ s return would seriously jeopardise its health or safety owing to the occurrence of an exceptional event since the award of custody. 2. In assessing the circumstances listed above, the judicial authorities of the requested State shall take direct account of the law and judicial decisions of the State where the child is habitually resident. They shall take into consideration the information provided by the Central Authority of the State where the child is habitually resident concerning the legislation on custody in that State and concerning the child ’ s social background. 3. A decision on the child ’ s return shall not affect the merits of the custody issue. ... ” Article 20 – Variation of custody rights “Where a court in the State to or in which the child has been removed or wrongfully retained finds that one of the exceptions listed in paragraphs 1 (b) or (c) of the preceding Article applies, it may rule on the merits of custody on the expiry of a period of one year after the child ’ s removal or retention provided that the child has settled in its new environment.” B. Domestic law 59. Section 191 of the Minors Act adopted by Legislative Decree no. 314/78 of 27 October 1978 provides, inter alia : “ ( 1 ) If the minor has left his parents ’ house or the house provided for him by his parents or if he has been removed from it or if he is not in the custody of the person or institution to which legal custody has been awarded, an application for his return shall be made to the court with jurisdiction over the area where the minor is located. ( 2 ) If proceedings are brought, the guardian and the person who cared for or retained the minor shall be summoned to make submissions in reply within a period of five days. ... ( 4 ) If there are no submissions in reply, or if such submissions are manifestly ill - founded, the court shall order the child ’ s return and indicate where it is to take place; the court shall order such return only where it considers it necessary; the person concerned shall be served with the order so as to be able to effect the return in accordance with its terms, on penalty of being prosecuted for non-compliance with a legal order. ... ” 60. Under Article 348 of the Criminal Code, non-compliance with a legal order is punishable by a term of imprisonment of up to one year or by a fine not exceeding 12 0 day -fines. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 61. The applicant complained of failure to act and negligence on the part of the Portuguese authorities in enforcing the judicial decisions awarding him custody of his child. 62. The Court considers that this case must be examined under Article 8 of the Convention, which provides : “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Submissions of the parties 63. The applicant submitted that the Portuguese authorities had not done all that they could to enforce the decisions of the French courts. He stressed that he had provided all the necessary information at the appropriate time for Julien and his mother to be located, and that they had not been found because of inexplicable negligence on the part of the Oeiras District Court. 64. The applicant considered that this situation had detrimentally affected his private life and had been particularly harmful to the child himself who, according to the information on file, had remained for a long time without social security cover and without going to school. 65. The Government did not deny that Article 8 applied to the circumstances of the case but considered that there had not been any violation. They submitted that States enjoyed a margin of appreciation which allowed them to select on a case-by-case basis the course of action best designed to meet their positive obligations. The Government maintained that the Portuguese authorities had taken every possible step to ensure compliance with the decisions of the French courts regarding the custody of the child. 66. The Government considered that the course of the proceedings showed that the Portuguese authorities – the prosecution service, the courts, and the IRS as the Central Authority – had conducted themselves properly throughout. The difficulties encountered in locating the minor had been due to the mother ’ s lack of cooperation. 67. With regard to the events of April 1999, the Government submitted that it would not have been possible for the 27 April 1999 warrant to allow forced entry into the home in question. They observed that such a power could have been conferred only as part of criminal, rather than civil, proceedings. The Government submitted that, in circumstances such as those prevailing at the time, a forced entry by the authorities into the home in question would have surely entitled the owners to counter- allege that their rights under Article 8 of the Convention had been violated. B. The Court ’ s assessment 68. The Court notes that it is accepted that the tie between the applicant and his son comes within the scope of family life within the meaning of Article 8 of the Convention. That Article is therefore applicable to the situation of which the applicant complained. 69. That being so, what must be determined is whether there has been a failure to respect the applicant ’ s and his son Julien ’ s family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There are in addition positive obligations inherent in effective “respect” for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation ( see Keegan v. Ireland, judgment of 26 May 1994, Series A no. 290, p. 19, § 49). 70. In relation to the State ’ s obligation to take positive measures, the Court has repeatedly held that Article 8 includes a parent ’ s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to take such measures (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I, and Nuutinen v. Finland, no. 32842 /96, § 127, ECHR 2000- VIII). 71. However, the national authorities ’ obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with a child who has lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. While national authorities must do their utmost to facilitate such cooperation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. In a situation where contact between parent and child might jeopardise such interests or infringe such rights, the national authorities are under a duty to ensure that a fair balance is struck between them ( see Ignaccolo-Zenide, cited above, § 94). 72. Lastly, the Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights ( see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 -XI ). The Court considers that the positive obligations that Article 8 of the Convention lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction ( see Ignaccolo-Zenide, cited above, § 95) and the Convention on the Rights of the Child of 20 November 1989. 73. What is decisive in this case is whether the Portuguese authorities took all the necessary steps that could reasonably be demanded of them to facilitate the enforcement of the decision of the French courts granting the applicant sole custody of and parental responsibility for his child ( see Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 22, § 58). 74. It must be reiterated that in a case of this kind the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the award of parental responsibility, including the enforcement of the final decision, require urgent handling as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with it. The Hague Convention recognises this fact because it provides for a whole series of measures to ensure the immediate return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any failure to act for more than six weeks may give rise to a request for a statement of reasons for the delay. 75. On the date of the request transmitted by the French Central Authority to its Portuguese counterpart, 5 June 1997, there is no doubt that Julien had been wrongfully removed. The prosecution service subsequently, about forty days after that date, lodged an application for his judicial return with the Oeiras District Court. That court then made several attempts to discover S.C. ’ s whereabouts, but without success. While no significant delay due to failure to act can be attributed to the authorities in charge of the case during this initial stage in the proceedings, the Court finds it difficult to understand why those authorities were unable to compel S.C. to appear, particularly since she had been located at the address given by the applicant ( see paragraphs 20 and 45 above) in different proceedings brought before another division of the same court. Lastly, the Court notes that the Oeiras District Court finally decided on 15 June 1999 that S.C. had to be regarded as having been properly summoned to appear because she had already intervened in the proceedings on 2 July 1998. An explanation may be in order as to why one whole year had to elapse after the latter date before such a decision was taken. The Government have not given one. Julien was finally located by the police only on 14 December 2001, in other words four years and six months after the request sent by the French Central Authority to the IRS. 76. The Court acknowledges that these difficulties are, as submitted by the Government, essentially due to the mother ’ s behaviour. It stresses however that the appropriate authorities should then have imposed adequate sanctions in respect of the mother ’ s lack of cooperation. Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the children live. Even if the domestic legal order did not allow for the imposition of effective sanctions, the Court considers that each Contracting State must equip itself with an adequate and sufficient legal arsenal to ensure compliance with the positive obligations imposed on it by Article 8 of the Convention and the other international agreements it has chosen to ratify. 77. It should not be forgotten that the interests of the child are paramount in such a case, which is why the Portuguese authorities may be right in considering that parental responsibility must now be granted to the mother. In its request of 21 December 2001, the prosecution service gave the integration of the child into his new environment as its reason for seeking a variation of the 19 February 1998 judgment of the Besançon tribunal de grande instance. However, the fact remains that the considerable length of time it took for Julien to be located placed the applicant in an unfavourable position, particularly with the child being so young. 78. Having regard to the foregoing, and notwithstanding the respondent State ’ s margin of appreciation in the matter, the Court concludes that the Portuguese authorities failed to make adequate and effective efforts to enforce the applicant ’ s right to the return of his child and thereby breached his right to respect for his family life as guaranteed by Article 8 of the Convention. 79. There has accordingly been a violation of that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 80. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 81. The applicant claimed 45,734.71 euros (EUR) for non-pecuniary damage. The Government considered that amount excessive. 82. The Court considers that the applicant effectively sustained non-pecuniary damage which calls for pecuniary compensation. Having regard to the circumstances of the case and making its assessment on an equitable basis as required by Article 41, it awards him EUR 20, 000 under this head. B. Costs and expenses 83. The applicant also claimed the reimbursement of an amount of EUR 14,353.1 7 which he broke down as follows: (a) EUR 3,728.90 for expenses incurred by the applicant himself on travel to Portugal; (b) EUR 10,624.27 for legal fees, including EUR 2,370 in respect of the lawyer who represented him in Strasbourg. 84. The Government submitted that only the costs and expenses incurred in the proceedings before the Court could be reimbursed. As to quantum, it left it to the discretion of the Court. 85. The Court notes that costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and are also reasonable as to quantum ( see Iatridis v. Greece (just satisfaction), [GC], no. 31107/96, § 54, ECHR 2000-XI). Moreover, legal costs are only recoverable in so far as they relate to the violation found ( see Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, p. 21, § 66). 86. The Court considers that the expenses incurred both in Portugal and in Strasbourg to prevent or remedy the situation which the Court has found to be contrary to Article 8 of the Convention were necessarily incurred and should be reimbursed up to a reasonable level. However, the costs incurred in the proceedings in the French courts do not relate directly to the violation found and should not therefore be reimbursed. The Court considers it reasonable to award the applicant EUR 6,100 under this head. C. Default interest 87. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 8 of the Convention, finding that the Portuguese authorities had not made adequate and effective efforts to enforce the applicant’s right to the return of his child. The Court reiterated in particular that in cases of this kind the adequacy of a measure was to be judged by the swiftness of its implementation. Custody proceedings required urgent handling as the passage of time could have irremediable consequences for relations between the child and the parent from whom he or she was separated. Here, the Court accepted that the difficulties in ascertaining the child’s whereabouts had been chiefly due to the conduct of the child’s mother, but considered that the authorities should have taken appropriate measures to punish her lack of cooperation. The lengthy period that had elapsed before the child had been found had created a factual situation that was unfavourable to the applicant, particularly in view of the child’s tender age.