ECtHR Rules on Return of a Child to Her Country of Origin under the Hague Abduction Convention
On 26 November 2013, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of X v. Latvia (application no. 27853/09).
The case concerned the procedure for the return of a child to Australia, her country of origin, which she had left with her mother at the age of three years and five months, in application of the Hague Convention on the Civil Aspects of International Child Abduction, and the mother’s complaint that the Latvian courts’ decision ordering that return had breached her right to respect for her family life within the meaning of Article 8 of the European Convention on Human Rights (ECHR).
The Court considered that the ECHR and the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 had to be applied in a combined and harmonious manner, and that the best interests of the child had to be the primary consideration. In the present case, it considered that the Latvian courts had not complied with the procedural requirements of Article 8, in that they had refused to take into consideration an arguable allegation of a “serious risk” to the child in the event of her return to Australia.
It may be worth noting that since the case concerned the relationship between Australia (as requesting State) and Latvia (as requested State), the special regime applying between member States of the EU bound by the Brussels IIbis Regulation was inapplicable. This explains that the obligations that Article 8 of the ECHR implies for the requesting State applied in this case, contrary to what was the case in Povse v Austria, where the incidence of the Brussels IIbis Regulation was at stake.
H/T: Patrick Kinsch
Gilles, thanks for your ever-active participation on this blog! I want to take issue with the last statement that you make, concerning the distinction between the Hague Child Abduction Convention and Brussels IIbis. According to my understanding Art. 8 ECHR would also apply to intra-EU abductions. This case concerned the obligations of Latvia, an EU Member State. The obligation to respect Art. 8 applies to all Council of Europe States (and thus to all EU Member States), irrespective of who the requesting State in the abduction case is. It would not make sense if Art. 8 ECHR were to apply when children are abducted from outside the EU to EU States but not when they are abducted from one EU to another EU State. The European Court of Human Rights does not draw this distinction in paragraph 106 when it sets the conditions for the co-existence between the ECHR and the Hague Child Abduction Convention.
The Judgment in Povse concerns a different question, namely when the requested (EU) State (Austria in this case) refused return and the requesting (EU) State (Italy in this case) subsequently issued an order that implies return, on the basis of Art. 11,8 Brussels IIbis. The fact that the latter judgment implying return is immediately enforceable without exequatur proceedings being required (and thus without any scrutiny), does not deprive the mother of her legal protection and her guaranteed right under Art. 8 ECHR. She had sufficient legal protection and could have appealed the Italian decision in Italy.
You are right of course, Ms Kruger, but there is (under a combination of the ECtHR’s holdings in Povse and in X v. Latvia) a difference in the obligations of a requested court. In an extra-EU context (X v. Latvia), or in an intra-EU context where no immediately enforceable return order has been issued under Art. 11(8) Brussels IIbis, the requested court itself will be under an obligation to protect the mother’s – at least procedural – rights under Art. 8. It is these obligations of the requested court that no longer apply in a Povse-like context where, as you correctly state, the protection of the right to family life is entirely the responsibility of the requesting court.
Thank you for your response, Professor Kinsch. Indeed, in the Povse-context the court that was initially requested (Austrian court) no longer has an obligation of protection, but must accept the immediate enforceability of the judgment by the court of the previous habitual residence of the child (Italian court). However, the requested court (Austrian) would at the previous step (the return proceedings) have had the same obligation under Article 8 of the ECHR as the requested court would in an extra-EU abduction, such as the X v Latvia scenario.