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Facilitating the Return of Abducted Children - The judgment of the European Court of Human Rights

Esther Lieu, a Pupil at Coram Chambers, and Adam Weiss, Legal Director, The AIRE Centre, explain the ECtHR's recent decision in Raw v France which considered, amongst other matters, the enforcement of court orders and the circumstances in which a parent could represent their children in Strasbourg proceedings.

Esther Lieu, Barrister, Queen Square Chambers, and Adam Weiss, Legal Director, The AIRE Centre. The applicants were represented by The AIRE Centre in the proceedings.

On the 7th March the European Court of Human Rights delivered its Chamber judgment in the case of Raw v France (Application No. 10131/11) [Please note that at present their is only available a French version of the judgment.]. The Court found a violation of Article 8 of the European Convention of Human Rights by the French authorities for not taking the necessary measures in order to facilitate the return of children who were wrongfully retained in France by their father.

Facts of the Case
The applicants in the case were Samantha Raw (a British National) who lodged the application in her own name and on behalf of her younger son 'A' and her daughter (from another relationship) 'C' following the wrongful retention of her two sons 'D' and 'A' in France by their father after the Christmas holidays. Mrs Raw had also made the application in the name of her eldest son D; however D turned 18 during the currency of the proceedings and in the absence of his signed consent to the application being pursued the court found his mother could not act on his behalf.

On 2 February 2009 the French courts ordered the return of D and A, an order which was upheld by the Poitiers Court of Appeal on 16 April 2009. In June 2009, the order remaining unenforced, the French local authorities arranged a meeting between the boys and their mother. The meeting was highly distressing for all the parties with the boys clearly expressing their resistance to being reunited with their mother and D being physically violent towards her.

The mother did not have any more contact with the boys until 9 December 2010 when A covertly contacted his mother and asked that she come to France and secretly bring him back to the UK, where he has lived with his mother and half-sister C ever since.

The Court confirmed that Mrs Raw was entitled to make the application in the names of all three of her children (until D turned 18), notwithstanding the fact that she shared parental authority with the father and that she was in effect making an application against the father. 

Having found that the applicants (including C who had not been unlawfully retained) were victims (Article 34 ECHR), that they had exhausted domestic remedies (Article 35(1)) and that their rights under Article 8 were engaged, the Court found that the French authorities had breached Article 8. 

The Court acknowledged that the French authorities had responded swiftly once proceedings under the Hague Convention on the Civil Aspect of International Child Abduction had been issued and that it was right for the French authorities to first satisfy themselves that the return of the children would not put them at any risk (Article 13 of the Hague Convention) before ordering their return. The Court recognised that there were instances during the proceedings when the return of the children would not have been appropriate such as after the failed reunification attempt in June 2009 and that it would not have been appropriate for the French police authorities to use force against the children.

Nonetheless the Court considered that the French authorities disengaged from the matter, instead of taking the necessary measures to ensure the return of the children.   The Court recognised that the children's attitude towards the prospect of returning to the UK to live with their mother was a problem, but found that this was not determinative.   The Court reiterated its prior case law that the passage of time alone could not be allowed to determine what the future relations between a parent and her children would be.  The Court awarded the applicants €5,000 for non-pecuniary damage.

The Separate Representation of the Child
The Court considered in some length the right of a parent to issue an application on behalf of their child: notwithstanding their conclusion that the first applicant was so entitled, the scope of the Court's consideration and the observations of the appended opinions suggest that such a right should not necessarily be taken as read. Three key issues emerge: whether the parent bringing the application holds sole or shared parental authority in respect of the child; the age and opinions of the child; and the nature of the alleged violation.

Status of parental authority
The French Government in Raw argued that the first applicant was prevented from unilaterally lodging an application on behalf of a child while sharing parental authority with the father. The Court, noting that under French law the parents continued to share parental authority following their divorce, held that could not render her application inadmissible.  The Court considered its previous case law, in which a left-behind parent in a child abduction situation was able to act on behalf of her child when she had sole parental responsibility (A.U.I. v Spain, Application no. 56673/00); a biological mother was allowed to act on behalf of her child despite being stripped of parental authority (Scozzari et Giunta c. Italie, No 39221/98); and a mother was allowed to act in her daughter's name despite ongoing disputed custody proceedings (Diamante et Pelliccioni v San Marino, No. 32250/08). 

Age and opinion of the child
The Court concluded that the boys' objections to being returned were 'not necessarily immutable' to ordering the return. It must be right that the age of the child in question is relevant, but how relevant remains unclear. In Iglesias Gil and A.U.I. v Spain the opinion of the 14 month-old child as to the application being taken on his behalf was not a relevant consideration. In Raw, having never actively agreed to the application being issued in his name (and by his conduct, actively resisted it), D was dropped from the proceedings when he turned 18.

The nature of the violation
The Court in Raw reflected that where one parent is bringing an application on behalf of a child in circumstances where the other parent (who may also hold parental authority) is seen as the 'opposition', there is a real danger of the child being 'instrumentalised' (a term also used by the French Government) by the proceedings.

Judge Nussberger in her opinion, reflected that:

"It does not seem justifiable to me to apply this approach [allowing a parent to issue an application on behalf of their child] in cases of removing a child, particularly where the child has explicitly expressed his opinion and he is in disagreement with the parent who is asking to represent him. In theory in such cases the father as much as the mother, each with contradictory positions, could ask to represent the child. Such a situation is neither in the best interests of the child not in the interests of a just and fair Court procedure." [para 6 of her opinion].

Judge Nussberger suggests that the default position should be that no parent has the right to lodge an application in their child's name unless a competent national authority deems that it would be in the child's best interests for the parent to be granted permission to do so. Taking this one step further – and perhaps to be left for another article – would be the suggestion of appointing someone akin to a Children's Guardian in such disputes.

Taking Coercive Action Against the Abducting Parent
While the Court had already had ample opportunity to develop its case law in the area of wrongful removal or retention of children, this case adds an important commentary on States' obligations to enforce orders to return children to the jurisdiction in which they are habitually resident.  The Court was careful not to suggest that the French authorities should have taken coercive measures against the children.  That would be contrary to their best interests.  The Court seems to suggest very clearly that such measures should have been used against the father.  It was unclear what kinds of coercive measures they had in mind (e.g. heavy fines or detention), but it seems that the appropriate approach to enforcement under Article 8 is to target the abducting parent, as opposed to the children themselves.  It might have been hoped that the Court would say more about non-coercive measures that could have been taken in respect of the children, such as appropriate psychological or social interventions to make them less resistant to returning.  The fact that A clandestinely contacted his mother and arranged his escape from his father's home suggests that better intervention would have detected that he wished to come back to England. 

In referring to the boys' objections, noting the absence of D's consent to the proceedings, and commenting on the risk of children being 'instrumentalised' by their parents in such situations, the Court appears to feel, at the lowest, some discomfort with its own conclusions. This is further reflected by its minimal award of damages, the minimal majority (5-2) that found in favour of the violation and the detail in two of the opinions.