Jurisprudence in parental child abduction cases

Case 1 — R.S. v. Poland

R.S. v. Poland (Application no. 63777/09), 21 July 2015

Two Polish nationals living in Switzerland, with two children of Swedish-Polish nationality, divorced. The mother asked the father for permission to travel to Poland on holiday, and the father agreed.

However, the mother decided to remain in Poland, where she initiated divorce proceedings and proceedings to obtain temporary custody of the children for the duration of the divorce proceedings, without notifying the father.

The Polish courts granted custody of the children without taking into account the law of the children’s place of habitual residence, namely Swiss law.

After exhausting the available remedies before the Polish courts, the father lodged an application before the European Court of Human Rights, alleging a violation of Article 8 of the European Convention on Human Rights.

The Court found a violation of that article and, consequently, of the father’s right to respect for his family life. It ordered Poland to compensate the father for non-pecuniary and pecuniary damage resulting from the failure to respect his right to private and family life.

It should be noted that not all the judges who examined the case agreed with this decision. Two of them considered that, in view of the facts presented and the father’s conduct towards the mother, it was understandable that the mother had wished to begin a new life in Poland. In particular, the father had restricted his wife’s financial means, asked her to leave the family home, and left her with only 9,000 Swiss francs to live on.

Accordingly, the European Court focused not on a reassessment of the facts as such, but on the situation under Article 8 of the European Convention on Human Rights, interpreted in connection with the Hague Convention.

HUDOC: hudoc.echr.coe.int/fre?i=001-156261

Case 2 — B. v. Belgium

B. v. Belgium (Application no. 4320/11), 19 November 2012

An American-Belgian couple, parents of a child with dual nationality, separated following domestic violence suffered by the mother during her pregnancy.

The father subsequently sought sole custody of the child. At the same time, criminal proceedings were initiated against the mother for social fraud.

Following a period of mediation organised by the American judicial system, joint custody was awarded to both parents. The parents were also prohibited from leaving the territory with the child without the official written consent of the other parent.

Nevertheless, the mother left the United States with the child without the father’s authorisation. The American court therefore issued a decision granting sole custody to the father.

Upon her arrival in Belgium, the mother initiated proceedings to obtain sole custody of the child and child maintenance.

At the same time, the father lodged an application with the central authorities under the Hague Convention.

The Belgian public prosecutor’s office refused to return the child. Judicial proceedings were then brought before the court of first instance, which held that the child could remain with the mother because of the limited contact the child had had with the father, even while in the United States. The father was instead granted specific visitation rights.

An appeal was subsequently lodged, and the court of appeal reversed the first-instance decision, meaning that the child was to be returned to the United States.

The mother then brought the case before the Court of Cassation, whose role is to interpret the law. The Court of Cassation first requested an opinion from the European Court of Human Rights. During that period, the father attempted to abduct the child from school and take her back to the United States. Consequently, the Court prohibited the father from taking the child out of the country.

In reaching its decision, the Court relied on Article 8 of the European Convention on Human Rights and Article 13 of the Hague Convention.

Having regard to the length of time spent in the other country and to the strong ties between mother and child, the Court held that the child’s best interests did not allow for her return to the United States. The Court held that the court of appeal had not ruled in accordance with Article 8 of the European Convention on Human Rights. Consequently, a decision of the Court of Cassation following the same approach could not be given without violating that article, since the situation had not been examined in the light of Article 13(1)(b) of the Hague Convention, thereby contravening the decision-making process required by Article 8.

HUDOC: hudoc.echr.coe.int/fre?i=001-112087

Case 3 — Serghides v. Poland

Serghides v. Poland (Application no. 31515/04), 2 November 2010, final on 2 February 2011

An Anglo-Polish couple living in London and having one child divorced. Following the divorce, the child lived with her mother, who undertook not to leave British territory without the formal consent of the judge and/or the father.

However, the mother prevented the father from seeing his child. The father therefore brought proceedings before the court to enforce his visitation rights. When the judge ordered the mother to allow the father to exercise those rights, the mother left the country with the child and went to Poland. The High Court in London then ordered the immediate return of the child to the United Kingdom.

The Polish district court refused the return on the ground that the child’s return could expose her to psychological or physical harm, or place the mother in an intolerable situation within the meaning of Article 13 of the Hague Convention.

An appeal was then brought before the regional court. The regional court quashed the decision and remitted the case for reconsideration, holding that the district court had taken only the mother’s interests into account. The district court, seised again, dismissed the application once more on the ground that the applicant could not rely on custody rights in respect of the child because his marriage was null under British law. The father appealed again, and the regional court ordered the immediate return of the child to the United Kingdom, holding that the mother’s unwillingness to return to the United Kingdom, where she could face criminal proceedings, should not constitute an obstacle to the child’s return.

Following that decision, the mother changed address without informing either the judge or the father and initiated proceedings challenging the decision. The father therefore hired a private detective agency to bring his child home.

The child and her mother were found. Once reunited with his daughter, the father wished to return to the United Kingdom; the local authorities refused, considering such action to be unlawful.

The proceedings initiated by the mother then led to the matter being brought before a district court, which refused the child’s return to the United Kingdom on the ground that the child had become integrated into her new environment in Poland. The court also considered that relations between father and child would be made more difficult following the latest events, and that the mother occupied a more important place in the child’s life than the father.

The father appealed again, but this time the regional court dismissed the appeal and ruled at final instance.

The father consequently brought the case before the European Court of Human Rights, relying on Article 8 concerning the right to respect for family life. He argued that the proceedings had lasted excessively long, contrary to the provisions of the Hague Convention and Article 8 of the European Convention on Human Rights.

The Court held that the delays had not affected the final decisions refusing the return of the child to the United Kingdom, and that it was rather the conduct of both parents that had led to that outcome. The ECHR declared the application admissible under Article 8 of the European Convention on Human Rights, which is interpreted in connection with the Hague Convention, but held that there had been no violation of Article 8 of the Convention.

HUDOC: hudoc.echr.coe.int/fre?i=001-101487

Case 4 — Stochlak v. Poland

Stochlak v. Poland (Application no. 38273/02), 22 September 2009

A Polish couple residing in Canada, parents of a child holding both Polish and Canadian nationality, travelled to Poland on holiday with their child.

Once in Poland, the mother stated that she no longer wished to return to Canada and that she wanted to live in Poland with the child. She then abducted the child and went into hiding.

The father applied to the Family Court in Ontario, Canada, for the return of the child. The court ordered the child’s return, as the child was resident in Canada.

Since the situation did not change following that decision, the father brought proceedings before the Polish courts to have his daughter returned, invoking the Hague Convention of 25 October 1980. The Polish courts ordered that the child be returned to the father.

At the same time, the father initiated civil enforcement proceedings so that a bailiff would be authorised to recover the child by force, if necessary. The court held that the mother was legally obliged to return the child and that, in the event of non-compliance, the matter would be referred to the bailiff for enforcement. However, those steps could not be carried out because the mother had hidden the child and could not be located.

This gave rise to criminal proceedings against the mother before the Polish courts.

The child was found following searches organised by a specialised unit in Poland and by a team of private detectives. The child was then returned to her father.

The father subsequently brought the case before the European Court of Human Rights, alleging that the Polish authorities had failed to respect Article 8 of the European Convention on Human Rights, concerning the right to respect for family life. He relied on the excessive length of the proceedings and the authorities’ lack of action to facilitate contact between father and child and to ensure the child’s schooling in Poland. He argued that this was contrary to the values of the Hague Convention, which requires rapid and effective measures to protect the best interests of the child.

The Court held that coercive measures could have been taken against the mother, as well as sanctions in response to unlawful conduct. It therefore held that the Polish State had violated Article 8 of the Convention and ordered it to pay the father financial compensation for non-pecuniary damage.

HUDOC: hudoc.echr.coe.int/fre?i=001-94079

Article 1 of the Hague Convention of 25 October 1980

The objects of the present Convention are:

to secure the prompt return of children wrongfully removed to or retained in any Contracting State;
to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.