- See P Beaumont and P McEleavy, The Hague Convention on International Child Abduction (Oxford University Press, 1999), ch 14, INCADAT (www.incadat.com) and the recent example of the US Supreme Court in Abbott v Abbott, 130 SCt 1983 (2010).
- Neulinger and Shuruk v Switzerland (App no 41615/07) ECHR 6 July 2010, para 139.
- In proceedings relating to EC Regulation No 2201/2003 which modifies the Abduction Convention in relations between EU Member States.
- 4 Art 6(2) Consolidated Version of the Treaty on the European Union.
- P Beaumont, “The Jurisprudence of the European Court of Human Rights and the European Court of Justice on the Hague Convention on International Child Abduction” (2008) 335 Hague Recueil des cours 12; A Schulz, “The 1980 Hague Child Abduction Convention and the European Convention on Human Rights” (2002) 12 Transnational Law and Contemporary Problems 355; L Walker, “The Impact of the Hague Abduction Convention on the Rights of the Family in the Case-law of the European Court of Human Rights and the UN Human Rights Committee: The Danger of Neulinger” (2010) 6 Journal of Private International Law 649.
- Neulinger, supra n 2.
- See Walker, supra n 5, 665–73.
- Ibid, 671. See also Jackson J in DT v LBT [2010] EWHC 3177 (Fam), at appendix 3.
- Raban v Romania (App no 25437/08) ECHR 26 October 2010.
- Ibid, para 38.
- Ibid, para 7.
- Ibid, para 9.
- For a comprehensive analysis of the Article, see Beaumont and McEleavy, supra n 1, ch 6.
- Raban, supra n 9, para 34, emphasis added. It is unclear from the facts available whether there was consent only for six months (the length of the ticket) or for an open-ended period as the ECtHR suggested (until the fi nancial situation of the father improved).
- See P (A Child) [2004] EWCA Civ 971: “[W]e have decided that consent does not fall to be considered for the purpose of establishing the wrongfulness of the removal or a breach of rights of custody pursuant to Article 3 but only for the purpose of invoking an exercise of the court's discretion pursuant to Article 13” (para 22). See also paras 28–33; however, this inter-pretation is not the consensus in all Contracting States, infra n 17. The explanatory report, E Perez-Vera, “Explanatory Report on the Hague Convention on the Civil Aspects of International Child Abduction, 1980“, Acts and Documents of the XIVth Session of the Hague Conference on Private International Law, Vol III, 426, 444–49, mainly deals with the issue of custody and whether the custody rights were actually exercised prior to the removal, which they clearly were in Raban. It is unclear from the Report whether consent is covered by Art 3 but since this is not confirmed it would suggest not as the Report is generally very comprehensive.
- However, it could also have been argued that the children's habitual residence had changed during the six months that they were resident in Romania. This was not a factor that arose in the proceedings. If the children's habitual residence had changed, then the retention would not have been wrongful. The case-law is split on this in relation to open-ended moves, see INCA-DAT, supra n 1. In Cameron v Cameron 1996 SC 17, where the initial agreement of the parents that the children should move with the father to France was for at least six months, it was considered that the children had become habitually resident in France after the first three months. However, a longer-term approach to habitual residence based on “centre of interests” is preferred by the ECJ in Mercredi, Case C-497/10 PPU Mercredi v Chaffe, 22 December 2010, see paras 47–49.
- See INCADAT, supra n 1. Several courts have treated consent as an aspect of Art 3, eg Australia, France, Canada, Switzerland, Scotland and England. In particular see In re P-J (Children) (Abduction: Consent) [2010] 1 WLR 1237, 1252–61, where there is a long discussion on how consent should be treated. Justice Wilson agrees with the approach taken in P (A Child) supra n 15, 1259, which appears to be the majority view across the Contracting States.
- See Carlson v Switzerland (App no 49492/06) ECHR 6 February 2009.
- Carlson is referred to briefly in Raban at para 28(iii).
- See Monory v Romania and Hungary (App no 71099/01) ECHR 5 April 2005, where the Court was meticulous in its efforts to interpret Art 3 of the Abduction Convention correctly. In reaching its decision the Court looked at the explanatory report as well as the established practice under the Convention (see para 81). This treatment is in stark contrast to the offhand manner in which the Convention was applied in Raban.
- Raban, supra n 9, para 38, see infra at notes 32–36. It is considered that the ECtHR has to set out a general standard on how to interpret the Abduction Convention in order to establish whether there has been a breach of fundamental rights under Art 8 by the national court in their own interpretation. However, the English Court of Appeal in KA, TB v SE [2011] EWCA Civ 361, questions whether the ECtHR “can contribute to the interpretation of the Hague Convention. That is the function of the courts that apply the Convention when deciding applications for return orders” (para 70 per Thorpe LJ). See also Aitken LJ at paras 100–03, “Nor…can it be the function of the ECtHR to interpret the provisions of the Hague Convention” (para 101) and Black LJ at para 125.
- Raban, supra n 9.
- The Court noted that “the children were born and raised in Israel, which should therefore be regarded as their ‘habitual residence’ for the purposes of the Hague Convention” (Raban, supra n 9, para 34). Had the issue been raised by the mother, the habitual residence of the children might not have been a clear-cut issue given the diverse interpretations of the concept in the case-law, see supra n 16.
- Raban, supra n 9, para 38.
- Abduction Convention, Article 13(b).
- Mr Justice Jackson does not believe that this is an obligation on the courts of refuge in “each and every case” because “to do so would defeat the very purpose of the Convention” (at paras [14] and [15] of Appendix 3 in DT v LBT [2010] EWHC 3177 (Fam)). He also decided that he did not need to follow Neulinger at para [16] of the Appendix as it does not represent the ECtHR's “clear and consistent jurisprudence”. In the latest case KA, TB, supra n 21, the English Court of Appeal comprehensively analyses Neulinger and Raban. The judges consider that the formula in Neulinger is applicable but that it does not actually change the interpretation and application of the Abduction Convention in any way (see para 125). It is considered that when evaluating the defence the Court must “weigh the immediate and not the ultimate best interests of the child” (Thorpe LJ para 69, repeated by Aitken LJ para 109). It is also stated that “The circumstances of the particular case have to be investigated ('in concreto' as the ECtHR puts it) but that investigation will always be circumscribed by the fact that its focus is on the determination of whether the familiar exceptions…in the Hague Convention are established” (Black LJ, para 124). It is believed that this is the correct approach. However, it is unclear whether other Contracting States will also interpret Neulinger and Raban in this manner. The decisions of the ECtHR could easily lead to uncertainty. The Court of Appeal in paras 37–40 per Thorpe LJ notes an admissibility decision in Van den Berg and Sarri v The Netherlands (7239/08) 2 November 2010, and the repetition of the requirement to give an in-depth examination of the entire family situation.
- See Art 19 of the Abduction Convention.
- Raban, supra n 9, para 28.
- Ibid, para 28(viii).
- Ibid. See n 26.
- Walker, supra n 5, 667. See also the opinion of Justice Jackson, supra n 26.
- Beaumont, supra n 5, 102. In relation to the origins of the ECtHR's new general principle of law, see Aitken LJ in KA, TB supra n 21, paras 105–07. He shows how a general statement of fact in Maumousseau was corrupted in Neulinger into this general principle of law which has since been repeated in the subsequent case of Raban and the admissibility decision in Van den Berg, supra n 26.
- Raban, supra n 9, paras 19 and 37.
- He was informed of his wife's intentions on 3 November 2006 and he fi led a request on 8 November.
- Art 16 of the Abduction Convention. See Iosub Caras v Romania (App no 7198/04) ECHR 27 July 2006, where the Court stated that the failure of the authorities to defer the custody proceedings “deprived the Hague Convention of its very purpose” (para 36). See also Beaumont, supra n 5, 66–67 and Walker, supra n 5, 662–63.
- Raban, supra n 9, para 12.
- See supra n 16.
- It should be noted that the District Court in Romania had concluded that the retention was wrongful under Art 3 of the Hague Convention because “at the time of retention the father had lawful custody rights” (para 10). The court also dismissed the defence raised under Article 13(b) because the risk of terrorist attacks “had not proved an obstacle to the family living in Israel for more than fi ve years prior to the children's removal” (para 10). Therefore the District Court considered that the children should be returned to Israel within three weeks of the judgment becoming final.
- See INCADAT, supra n 1, “treatment of confl ict situations” in particular the English judgment in Re S (A Child) (Abduction: Grave Risk of Harm) [2002] EWCA Civ 908, and the US judgment in Silverman v Silverman 312 F3d 914 (8th Cir 2002), both on the return of children to Israel.
- In particular, see Monory, supra n 20.
- See the press release of 28 April 2011 at http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=71760677&skin=hudoc-pr-en&action=request.
- C-491/10 PPU Joseba Andoni Aguirre Zarraga v Simone Pelz, 22 December 2010, para 37. Art 24 of the Charter of Fundamental Rights states: “The rights of the child 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
- Aguirre Zarraga, supra n 42, paras 18–20.
- Ibid, para 21.
- Ibid, para 22.
- Ibid, para 23.
- Ibid, para 24.
- Even in Art 13(2) cases, courts in many parts of Europe have at least heard the views of children younger than ten and they have been upheld in some cases (see INCADAT, supra n 1, on requisite age and degree of maturity). See also the recent case Re W (Minors) [2010] EWCA Civ 520, in which the views of siblings aged eight and not quite six were upheld.
- Aguirre Zarraga, supra n 42, para 26.
- Ibid, para 28.
- Ibid, para 28.
- See Case C-195/08 Rinau, 11 July 2008; C-211/10 Povse v Alpago, 3 May 2010; and Walker supra n 5, 667–68.
- Aguirre Zarraga, supra n 42, para 32.
- Ibid, para 34.
- Ibid, para 36.
- 56 See paras 58 and 59 of his opinion.
- 57 Para 87 of his opinion.
- Regulation No 1206/2001.
- 59 Para 76 of his opinion.
- See eg Foyle Health and Social Services Trust v EC and Anor [2006] IEHC 448, where the use of Art 20 is questionable. However, this possibility does not exist in the UK because Art 20 is not considered as having separate domestic effect. See Aitken LJ in KA, TB, supra n 21 para 112.
- “[T]he court of the Member State of origin must, in so far as possible and always taking into consideration the child's best interests, use all means available to it under national law as well as the specifi c instruments of international judicial cooperation, including, when appropriate, those provided for by Regulation No 1206/2001” (Aguirre Zarraga, supra n 42, para 67).
- Ibid, para 48.
- Ibid, para 49.
- Ibid, para 51.
- Art 6 ECHR, which is now a general principle of EU law (see Art 6(3) Consolidated Version of the Treaty on the European Union).
- Aguirre Zarraga, supra n 42, para 72.
- In Case C-211/10 PPU Povse v Alpago, 1 July 2010 the ECJ stated that no plea can be raised before the state of refuge challenging the enforcement of the judgment because “the rules of law of that State govern solely matters of procedure, as provided for in Article 47(1) of the Regulation, namely the arrangements for enforcement of the judgment” (para 75). However, see P McEleavy, “The New Child Abduction Regime in the European Union: Symbiotic Relationship or Forced Partnership” (2005) 1 Journal of Private International Law 5, 33, who considers that “actual” enforcement is a matter for national law under Art 47. Consequently the German authorities may not be obliged to return Andrea to Spain against her will.
- The Court has consistently noted that it will give a ruling on what the referring court considers necessary to decide the case before that court and not on hypothetical questions (eg as to what another court in the EU should or should not do): see eg Case C-169/07 Hartlauer Han-delsgesellschaft mbH v Wiener Landesregierung and Oberösterreichische Landesregierung [2009] ECR I-1721, in which the Grand Chamber said: “25. The Court can refuse to give a preliminary ruling on a question submitted by a national court only where, in particular, it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical (Case C-308/06 Intertanko and Others [2008] ECR I-4057, para 32 and the case-law cited).”
- Art 12(2) of the Convention on the Rights of the Child (all Member States of the EU are party to this instrument). The Advocate General's view that the German appeal court would constitute an “appropriate body” to hear the child for the purposes of the decision of the Spanish court is surely wrong. The Spanish court would not appear to be in a position to make a different decision on whether the child was of suffi cient age and maturity to have her views taken into account from that of the German appeal court without hearing the child for itself.
- Art 12(1) of the Convention on the Rights of the Child.
- In Aguirre Zarraga the ECJ acknowledges that the Member State of origin should only issue a certificate if the child was given the opportunity to be heard (para 52). The ECJ goes on to say that this is the “minimum content required in the judgment on the basis of which the certificate…is to be issued” (para 53). This would suggest that a state cannot issue a certificate without giving a genuine opportunity for the child to be heard. The ECJ then states that “hearing the child cannot constitute a necessary obligation” (para 64). When making this statement the ECJ makes no distinction relating to the age or the maturity of the child. It can be argued that in this case that the ECJ implied Andrea should have been heard. This is because it is stated that the Spanish court considered that it was necessary “to hear Andrea personally” (para 22). The ECJ then says that “where the court decides to hear the child”, then the state of origin must find a method “to offer the child a genuine and effective opportunity to express his or her views” (para 66). However, at no point does the ECJ explicitly state that the Spanish courts have breached Andrea's fundamental right to be heard and not complied with the minimum requirements in Art 42(2)(a). McEleavy, supra n 67, 31, considers that “it is essential that the child and the parties be given an opportunity to be heard” (usually through the Taking of Evidence Regulation 1206/2001).
- Art 6(3) Consolidated Version of the Treaty on the European Union.
- See Case C-540/03 Parliament v Council [2006] ECR I-5769, para 37.
- McEleavy, supra n 67, 31, where he describes the system of allowing the state of origin to override the state of refuge as a “dangerous precedent”.
- Aguirre Zarraga, supra n 42, para 51.
- Ibid, para 70, emphasis added.
- Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council [2008] ECR I-6351. See also B Kunoy and A Dawes, “Plate Tectonics in Luxembourg: The Ménage à Trois Between EC Law, International Law and the European Convention on Human Rights Following the UN Sanctions Cases” (2009) 46 Common Market Law Review 73.
- Kadi, ibid, para 353.
- In contrast to the opinion of the Advocate General, it is considered that the Spanish court could not rely on the hearing of the child by the German appeal court as an “indirect” way of hearing the child itself. In Kadi, the ECJ was considering the right to a fair trial as protected by Art 6 of the ECHR, rather than the rights under the Charter of Fundamental Rights. It has been considered that the Charter contains principles as well as rights. Rights create a directly enforceable right for individuals but principles, in contrast, can only be made enforceable through legislation. In the UK some consider that Art 24 of the Charter, set out supra n 42, is only a principle; however, if that is true the wording in Recital 33 of Brussels IIa “[i]n particular, it seeks to ensure respect for the fundamental rights of the child as set out in Article 24 of the Charter”, suggests that the Regulation is enforcing the rights in Art 24. Realistically, states should not be able to hide behind such an argument as the right of the child to be heard is binding on all Member States through Art 12 of the CRC in any case, supra n 67 and 72. In fact in Re W (Minors), supra n 48, the judge chose to refer to the CRC to support his argument rather than the Charter. The ECJ would be justified in taking the right of the child to be heard in Brussels IIa cases beyond the requirement in Art 24 of the Charter to the requirement in Art 12 of the UN Convention on the Rights of the Child on the basis that the latter standard is the general principle of EU law.
- Aguirre Zarraga, supra n 42, para 69.
- EC Regulation No 2201/2003, Art11(3).
- Art 6(3) Consolidated Version of the Treaty on the European Union.
- Art 6(2) Consolidated Version of the Treaty on the European Union.
Journal of Private International Law
Volume 7, 2011 - Issue 2