Jurisprudence
Jurisprudence in the cases of PARENTAL child abduction:
CASE 1
R.S. v. POLAND (Application no. 63777/09), of July 21, 2015:
Two Polish nationals living in Switzerland, with two children of Swedish-Polish nationality divorce and the mother asks the father’s consent to go to Poland on holiday. The father gives this.
However, the mother decides to stay in Poland from where she initiates divorce proceedings and a procedure to obtain temporary custody of the children during divorce proceedings – all without notifying the father.
The Polish judicial system grants the father custody of the child without taking into account the law of the place of habitual residence of the child which is Switzerland.
After the decision brought by the Polish courts, the father placed an application for violation of Article 8 of the Hague Convention before the ECHR.
The latter recognizes a violation of the said article, and consequently of the right to respect a father’s right to a family life, thus Poland’s decision was overturned and asked to compensate the father for moral and pecuniary damage for non-respect of the right to private and family life.
IT should be noted that not all the judges tasked with making this decision agreed with it. Indeed, two of them considered that, in view of the facts presented regarding the behaviour of the father to the mother, it was seen as justified that the latter wished to start a new life in Poland. Indeed, the latter had placed constraints on the wife’s financial ability to provide food, asked her to leave the family home and left her with only 9000 Swiss francs to live on.
Consequently, we note here that the European Court did not take into account the facts of the case but focused on the wording under Article 8 of the European Convention on Human Rights, which is linked to the Convention of the Hague.
—> http://hudoc.echr.coe.int/fre?i=001-156261
CASE 2
CASE B. v. BELGIUM (Application no. 4320/11) of 19 November 2012:
An American-Belgian parents of a child with dual nationality separate following domestic violence suffered by the mother during her pregnancy.
Subsequently, the father wishes to obtain sole custody of the child. At the same time, criminal proceedings are initiated against the mother for social fraud.
Following a period of mediation organized by the American judicial system, joint custody is awarded to both parents who were also legally prevented from leaving the territory with the child without official written consent of the other parent.
Even so the mother left US territory, taking the child, without paternal authorization and the American court therefore awarded sole custody to the father.
ON entry into Belgium, the mother initiates proceedings to obtain sole custody of the child and child maintenance.
Meanwhile, the father lodged a request with his central authorities in line with the Hague Convention.
The Belgian state prosecution service refused to return the child, a legal procedure was initiated in the court of first instance, where it was accepted that the child could stay with his mother because of limited contact she had had with his father even when she was in the United States. Instead, the father was given specific visitation rights.
As a result of this, an appeal was submitted to the court who reversed the decision of first instance which meant that the child was required to return to the United States.
Following this, the mother applied for an injunction to the Court of Cassation, a court whose role is to interpret law, but the latter first requested the opinion of the European Court of Human Rights. During this period, the father tried to abduct the child from school and to bring her back to the United States. Consequently, the Court prohibited the father from taking the child out of the country.
It should be noted that in reaching their decision, reference was made to Article 8 of the European Convention on Human Rights and Article 13 of the Hague Convention in order to render a decision.
Based on the length of time spent in the other country and the strong ties between mother and child, the court declared that in the best interests of the child, it should not be returned to the United States. Therefore, the Court of Appeal did not rule in accordance with Article 8 of the European Convention on Human Rights and, consequently, a decision made by the Court of Cassation could not be rendered without infringing the said article in that in the light of Article 13 b) of the Hague Convention, thus contravening the decision-making process established by Article 8.
—> http://hudoc.echr.coe.int/fre?i=001-112087
CASE 3
SERGHIDES v. POLAND (Application no. 31515/04) of November 2, 2010 (final version February 2, 2011):
An Anglo-Polish couple, with one child, living in London, divorced. Following this, the child went to live with his mother who undertook not to leave British territory without the formal consent of the judge and/or the father.
However, she prevented the father from seeing his child and he initiated proceedings with the court to enforce his visitation rights. When the judge ordered the mother to let the father exercise these, the latter left the country with the child and went to Poland. The Supreme / HIGH Court in London then ordered the immediate return of the child to the United Kingdom. This was refused by the Polish District Court on the grounds that the return of the child could expose it to psychological or physical harm and place the mother in an intolerable situation within the meaning of Article 13 of the Hague Convention.
There followed an appeal for the case to go to the regional court. The latter quashed the decision and sent the case back to the Supreme Court for reconsideration arguing that the court had only taken the mother’s interests into account. The District Court again seised again dismissed the application on the ground that the applicant could not rely on a right of custody in respect of the child because of the nullity of his marriage under British law. The father appealed again and the regional court ordered the immediate return of the child to the United Kingdom. Although the mother did not wish to return to the United Kingdom or she where she would/could face criminal proceedings, it was decided that this should not be an obstacle to the return of the child.
Following this decision, the mother changed address without informing either the judge or the father and initiated counter proceedings. The latter, therefore, engaged a private detective agency to bring his child home.
The child and mother were found. Having been reunited with his daughter, the father wished to return to the United Kingdom; this was refused by the local authorities as it was viewed as illegal.
Following this, counter proceedings were initiated by the mother which led to the case being brought before a regional/county court, which overturned the ruling to return of the child to the United Kingdom on the grounds that the child had become integrated into her Polish circumstances. This decision was reached on the grounds that foster care and relations between father and child would suffer further following the latest events. Moreover, it was judged that the mother occupied a more important place in the life of the child compared to that held by the father.
The latter appealed again, but this time the regional court rejected the appeal and ruled as a last resort.
Consequently, the father brought the case before the European Court of Human Rights using Article 8 on the right to maintain and respect family life, declaring that the proceedings had been needlessly protracted in contrary to the provisions of the Hague Convention as well as Article 8 of the European Convention on Human Rights.
The Court stated that delays should not have impacted the final decision or its refusal to return the child to the UK and that it was the behavior of both parents that led to this solution. Consequently, the ECHR declared the application admissible in view of Article 8 of the European Convention on Human Rights which is linked to the Hague Convention. Nevertheless, it also declared that there had been no violation of Article 8 of the Convention.
—> http://hudoc.echr.coe.int/fre?i=001-101487
CASE 4
STOCHLAK v. POLAND (Application no. 38273/02) of September 22, 2009.
A Polish couple resident in Canada with a child holding dual Polish and Canadian nationality went to Poland on holiday as a family unit.
Once there, the mother stated that she no longer wished to return to Canada and wished to remain in Poland with their child. She, subsequently, abducted the child and went into hiding.
The father then applied to the Family Court, Ontario (Canada), for the return of the child; the Court ordered the return of the child, the latter being a Canadian resident.
Following this decision, and since the situation had not changed, he instituted legal proceedings with the Polish courts in order to have his daughter repatriated by invoking the Hague Convention of 25 October 1980. The latter ordered the return of the child to the father.
At the same time, the father initiated civil enforcement measures authorizing the bailiff’s office to recover the child, by force, if necessary. The court declared that the mother was legally obliged to return the child, and that, in the event of non-execution of this, the case would be brought before the bailiff to be enforced.
However, these steps could not be undertaken as the mother had gone into hiding and could not be located. Consequently, criminal proceedings in the Polish courts against the mother were launched
The child was found following an exhaustive search organized by a specially deployed police unit in Poland in conjunction with a team of private detectives. Following this, the child was returned to her father.
The European Court of Human Rights was then appealed to by the father on the grounds that the Polish authorities had not respected Article 8 of the European Convention on Human Rights relating to an individual’s right to respect in the maintenance and upholding of family life which, in this case, he argued had been compromised due to overly long procedures combined with the lack of measures taken by the authorities to secure open lines of communication between father and child. He maintained that schooling of the child in Poland contravened the values of the Hague Convention, which advocates rapid and effective steps to ensure the protection of the best interests of the child.
The Court therefore recognized that coercive measures could have been taken against the mother as well as sanctions as against her unlawful behaviour. Therefore, it was declared that the Polish State had violated Article 8 of the Convention and ordered it to pay financial compensation to the father for non-pecuniary damage.