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ECtHR rules on duty to carry out ‘in-depth examination’ in Hague Convention child abduction cases

reunite intervenes to assist the Court in X v Latvia

The European Court of Human Rights has delivered a Grand Chamber judgment in the case of X v Latvia in which reunite International Child Abduction Centre intervened.

The case concerned the application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and its compatibility with the provisions of Article 8 of the European Convention on Human Rights (ECHR). 
In 2008 a Latvian Court ordered the return of a child to Australia, finding that the child's removal to Latvia had been wrongful under the principles of the 1980 Hague Convention.  Following the return of the child, and in a judgment delivered in November 2011, the Chamber of the ECtHR concluded that there had been a violation of Article 8 of the ECHR as "the Latvian courts' approach in granting the return order lacked in-depth examination of the entire family situation and of a whole series of factors...". 

In this subsequent appeal, reunite assisted the Grand Chamber in considering the general approach taken to the examination and subsequent determination of the welfare of an individual child in international child abduction cases. 

An increasing number of cases under the 1980 Hague Convention are coming before the ECtHR and reunite held concerns that some aspects of the Court's jurisprudence were being applied inappropriately and in a manner which was inconsistent with the principles of the 1980 Hague Convention.  In particular, reunite was concerned that the operation of the 1980 Hague Convention as an effective instrument to achieve the speedy, summary return of abducted children to their countries of habitual residence risked being undermined if a wide-ranging welfare inquiry had to be made in each case before such a return could be contemplated.  

The President of the ECtHR authorised reunite to provide written submissions as independent third parties in the case before the Grand Chamber.  reunite was one of three interveners, and the sole non-governmental organisation to intervene, and in its submissions it invited the Court to make clear that the "in-depth examination" in the context of a 1980 Hague Convention case is only that which is required to ensure that the return complies with the ECHR, and that the task of undertaking a full assessment of the child's interests is reserved for the Courts of the child's habitual residence following a return.

The Grand Chamber said on this point:

"[T]he Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child's return, the courts must not only consider arguable allegations of a "grave risk" for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington v. France, no. 39388/05, 6 December 2007), is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it.

"Furthermore, as the Preamble to the Hague Convention provides for children's return "to the State of their habitual residence", the courts must satisfy themselves that adequate safeguards are convincingly provided in that country, and, in the event of a known risk, that tangible protection measures are put in place." [107-108]

Following the judgment, Alison Shalaby, reunite's Chief Executive Officer, said:

"We are grateful to the European Court of Human Rights for affording us the opportunity to contribute submissions and provide assistance in this case. We believe that the 1980 Hague Convention must remain an effective international instrument, ensuring that children who have been abducted are promptly returned to their country of habitual residence, and it is important that any guidance to its proper interpretation is clear to those who have to apply it, or who are subject to it. reunite will consider this important judgment and will make further comment in a later press release." 

reunite was represented in the European Court of Human Rights by Henry Setright QC of 4 Paper Buildings, Edward Devereux of Harcourt Chambers, Michael Gration also of 4 Paper Buildings, Nuala Mole of The AIRE Centre, and Anne-Marie Hutchinson OBE and Carolina Marin Pedreno of Dawson Cornwell, all of whom acted pro bono in this matter.

The judgment is here.