European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MAUMOUSSEAU AND WASHINGTON v. FRANCE - 39388/05 [2007] ECHR 1204 (6 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1204.html
Cite as: (2010) 51 EHRR 35, 51 EHRR 35, [2007] ECHR 1204
[New search] [Contents list] [Printable RTF version] [Help]
THIRD SECTION
CASE OF MAUMOUSSEAU AND WASHINGTON v. FRANCE
(Application no. 39388/05)
JUDGMENT
STRASBOURG
6 December 2007
This judgment is final but it may be subject to editorial revision.
In the case of Maumousseau and Washington v. France,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Boštjan
M. Zupančič,
President,
Corneliu
Bîrsan,
Jean-Paul
Costa,
Elisabet
Fura-Sandström,
Alvina
Gyulumyan,
Egbert
Myjer,
Isabelle
Berro-Lefèvre,
judges,
and
Santiago Quesada, Section
Registrar,
Having deliberated in private on 15 November 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
There appeared before the Court:
(a) for the Government
Ms Anne-Françoise
Tissier, Head of the Human Rights Section, Department of Legal
Affairs, Ministry of Foreign Affairs, Agent,
Ms Marie-Gabrielle
Merloz, Drafting Secretary, Human Rights Section
Department of
Legal Affairs, Ministry of Foreign Affairs, Counsel,
Mr François
Thomas, Deputy Head of Bureau for International Legal
Assistance in civil and commercial matters, Department of Civil
Affairs, Ministry of Justice, Counsel;
(b) for the applicants
Mr Jean
de Salve de Bruneton, member of the Conseil d'Etat and
Court of Cassation Bar, Counsel,
Ms Solange
Vigand, lawyer, Adviser.
The Court heard addresses by Mr de Salve de Bruneton and Ms Tissier and their replies to questions from judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
2. Proceedings under the Hague Convention on the Civil Aspects of International Child Abduction and the proceedings concerning Charlotte's placement in specialist care
(a) Judgment of the Draguignan tribunal de grande instance
“In the present case, in the light of the various attestations produced in the proceedings, both by Mr Washington and by [the applicant], there is no evidence of harmful conduct [on the part of the father] towards the child ... .
However, it has been established and is not disputed by Mr Washington that the child Charlotte, who was born on 14 August 2003 [sic] and who is therefore aged only three years and a few months, has lived throughout her infancy mainly in the company of her mother, especially as the latter was not employed while in the United States. Dr P., who was Charlotte's doctor from her birth until 10 March 2003, has moreover certified that the applicant herself brought the child to most of the consultations and did not miss any appointments.
The attestations produced in the proceedings in respect of Charlotte's life in France show that the mother/daughter relationship is extremely sound, as pointed out by Dr T., who reports that the child is not suffering from any psychological disturbance and has adapted well, particularly in her school life, as indicated by the attestation from the headmistress of the nursery school that [she] attends.
The applicant arranged for the child to undergo a psychological examination by Dr V. Concerning the relations that the child had developed emotionally with her parental figures, this clinical psychologist noted the very strong predominance of the mother figure:
The child's psychological, psycho-affective and cognitive development is healthy, and there is an excellent relationship, with sound emotional ties, between Charlotte and her mother, and also between the child and her maternal grandparents. It also appears that she refers to the father figure, that she may mention when prompted by the therapist, without expressing any affect.
Charlotte seems to be developing harmoniously, having found a balanced life with her mother and maternal grandparents, and does not seem to have been affected mentally by her separation from her father or her departure from the United States of America, where she was born. It would thus be harmful for this child if her points of reference were changed and she was placed in a situation where she became separated from her mother and her mother's family out of a concern for effective restoration of the father's role.
It transpires from the foregoing that, in view of Charlotte's infancy and her close relationship with her mother, in whose company she has always lived, both in the United States of America and since her arrival in France, her return would place her in an intolerable situation on account of the resulting separation from her mother, but also because of her removal from the environment to which she has adapted and her transfer to a new environment with her father in the State of her habitual residence, no concrete information having been forthcoming in this connection.
In these circumstances, and in accordance with Article 13 (b) of the Hague Convention, it is not appropriate to order Charlotte's return to the United States of America ... on account of a grave risk that she would be placed in an intolerable situation.”
(b) Judgment of the Aix-en-Provence Court of Appeal
“... [the first applicant] requested the benefit of the exception provided for in Article 13 (b) of the Hague Convention ...
It is not for the Court to assess the educative and affective capacities of each parent but to ascertain whether the parent who retains the child has adduced evidence to show that if returned the child would be exposed to real and immediate physical or psychological harm and would be placed in an intolerable situation before a decision on the merits is taken by the court of the place of habitual residence, it being understood that, in accordance with Article 19 of the Hague Convention, a decision under that Convention concerning the return of the child will not be a determination on the merits of any custody issue.
Ms Maumousseau has argued that the child should not be returned to the United States of America on child protection grounds, on account of the violent and alcoholic behaviour of Mr Washington who, she has also alleged, took drugs.
The attestations produced by Ms Maumousseau, issued by her parents, Mr and Mrs Louis, Mrs Musard, Mrs Bernard, Mrs Degeneve and Mrs Buckley, mainly relate to her own allegations, which she had imparted to them, about her husband's behaviour towards her. None of them provide evidence of any harmful attitude on the part of Mr Washington towards his daughter. He has himself produced various affidavits from work colleagues, friends of the couple and neighbours, testifying that he is a caring father, is not an alcoholic and does not take drugs. He has also produced the results of tests dated 9 March 2004 showing the absence of any trace of drugs.
The domestic incident report of 4 September 2002 from New York State, the medical certificates of 18 March 2003 and 20 November 2003 issued by Dr Broglio, that of 3 December 2003 by Dr Page, and the complaint for violence filed on 4 December 2003, do not relate to Charlotte Washington at all.
The only document concerning Charlotte is a child protection report filed on 2 October 2001 by the social services of Dutchess County, which noted a lack of supervision imputable to the child's mother following a fall by the child in the fire-escape stairwell. This incident shows that the New York State services are protective of the child's interests.
Ms Maumousseau has not shown that the child's return would be harmful for her on account of the father's behaviour. In fact, she had herself written to him on 4 May 2003 requesting that he send various belongings and objects for Charlotte and adding: “we hope you will come and see us soon and live with us”.
Ms Maumousseau argues that the child's return would place her daughter in an intolerable psychological situation on account of being separated from her mother after having adapted to her new life.
Charlotte, now three and a half years old, has been living with her mother and maternal grandparents for the past year. She has settled well in the village life, has been attending nursery school since 3 September 2003 and takes gymnastics lessons.
The headmistress of the nursery school describes her as a well-behaved child who works well, plays with all her classmates, speaks fluent French, understands everything she is told and makes herself understood, has adapted perfectly to school, and shows much self-fulfilment and contentment.
Dr Torres Chavanier, a psychiatrist, certified on 9 December 2003 that she was a smiling and lively child with a very satisfactory psychomotor and intellectual development for her age and that she showed no signs of psychological disorder. He also pointed out that the mother-child relationship was very sound.
Mr Veschi, a clinical psychologist, certified that he had seen the child at the request of Ms Maumousseau and had drawn up an examination report dated 10 December 2003.
He noted the child's very strong emotional relationship with her mother and maternal grandparents, a very strong predominance of the mother figure reflected in her imaginative creations and in symbolic games, and her reference to the father figure without expressing any affect.
He concluded his report by stating that the child was in good psychological, psycho-affective and cognitive health, which was apparently developing harmoniously, that she seemed to have found a balanced life with her mother and maternal grandparents, and did not seem to have been affected mentally by her separation from her father or her departure from the United States of America, where she was born. He added that '[i]t would thus be harmful for this child if her points of reference were changed and she was placed in a situation where she became separated from her mother and her mother's family out of a concern for effective restoration of the father's role'.
The harm referred to in Article 13 (b) of the Hague Convention cannot be constituted solely by separation from the parent who acted unlawfully and created the risk.
The observations of the psychiatrist, psychologist and headmistress show that the child has the capacity to adapt to new circumstances.
Mr Washington has been employed by the company Verizon Communications, as a consultant since 1988, and as a video specialist since December 1999. In 2002 his monthly salary amount to 4,500 euros.
He has been a tenant in the same residence since June 2000, i.e. before Charlotte was born, renting a two-room apartment for a monthly rent of 1,009 dollars that he pays regularly.
His employer wrote to him on 18 February 2004 that he agreed to adapt his working hours so that he could work only two days a week when necessary, as the nature of his work allowed him to work outside the company's premises, whether at home or elsewhere.
Ms Maria Nagy, a graduate of a nursing school and a neighbour of Mr Washington, informed him in a letter of 6 February 2004 that she agreed to look after Charlotte, day or night, as required.
The head of the nursery section of a children's day care and learning centre in Wappingers Falls confirmed by a letter of 20 February 2004 that Charlotte had been admitted to it.
The affidavits and photographs produced by Mr Washington further show that he has the support of his family and friends.
The environment that Mr Washington would provide on his daughter's return, being the environment in which she lived from 14 August 2000 until her removal on 17 March 2003, does not indicate a risk of any harm that would place the child in an intolerable situation.
Ms Maumousseau alleged that there was a risk that she would no longer be allowed to travel freely to the United States.
She produced the form for entry into the United States that has to be filled in by non-immigrant visitors without a visa, showing that entry into the country may be refused to a person who has prevented a US citizen from exercising his or her custody rights.
A permanent resident card, valid from 21 June 2003 to 10 October 2013, was granted to Mrs Washington née Maumousseau on 3 October 2003, further to her application of 21 August 2000.
As a result, the US authorities cannot prevent her from returning to the United States where the family's habitual residence is located and where she will be able to assert her rights in the context of adversarial proceedings. The decisions concerning the exercise of parental authority are essentially temporary and may be modified to take the child's interest into account. The judge of the Dutchess County Family Court, New York State, moreover stipulates in his order of 24 February 2004 that 'the court reserves the right and retains jurisdiction to decide on the child's interest and will consider any new measures that may be taken by the two parties in accordance with this decree [sic]'.
Having regard to all of the foregoing elements, which are sufficient for adjudication without it being necessary to order any investigation, Mrs Washington née Maumousseau has not shown that there is a grave risk that Charlotte's return would expose her to physical or psychological harm or place her in an intolerable situation.
Consequently, it is appropriate to set aside the judgment appealed against and to order the child's prompt return to the place of her habitual residence, in accordance with Article 12 of the Hague Convention of 25 October 1980.”
(c) Charlotte's placement in specialist care
“It appears that Charlotte, who is almost four years old, is embroiled in a relentless conflict between her parents, before the courts and in the media, and this must be upsetting or disturbing for her. Charlotte may also feel and apprehend fear about the prospect of being separated for good from her father or mother. These conditions may particularly give rise to anxiety, suffering and worry for a little girl.”
“It transpires from the interim report issued by the department responsible for the investigation and educational guidance, from the representations of the parents and the child's ad hoc administrator, from the submissions of the parties and the public prosecutor, from the press articles in the case file, from correspondence and from judicial decisions, that the conflict between the parents reached a climax on 23 September 2004 in Les Adrets, inevitably causing this little girl psychological distress, fear, anxiety, terrors and confusion.
Charlotte was at the heart of a situation of severe and active physical and mental violence and witnessed serious clashes between adults of which she was the subject.
These circumstances have entail for this child a strong emotional condition that endangers her health and security.
The idea, for Charlotte, of being constantly reminded that she risks being permanently separated from her father or mother must inevitably have been strengthened on that occasion ...
Charlotte is living today in semi-clandestine conditions, deprived of contact with her father, the subject of concern among members of her family, and a hostage in the conflict between her parents, as enshrined in various decisions.
In order to give her some respite, some time to catch her breath and get on with her childhood, to distance her from the competition of which she is the target, with the risk of a psychological breakdown, it is appropriate to order that she be placed for a period of six months in specialist family care with the ADSEA for the département of Var.”
“The conflict over this child must have placed Charlotte in a situation of uncertainty, anxiety and suffering.
The present outcome of this conflict, namely Charlotte's separation from her mother, must have been very psychologically harmful for this four-year-old child who until then had benefited from the warm and orderly environment provided by the mother.
A whole sphere of her past life has thus disappeared – left behind in a few hours on the plane.
This wrench will take a long time to heal.
In this sense, Charlotte remains in a situation of danger in terms of her health, within the meaning of Article 375 of the Civil Code.
The fact that Charlotte lives with her father in the USA nevertheless precludes the continuation of any measure of support for the girl or her parents.
On that ground alone it is ordered that the educational assistance measure be discontinued.”
(d) Judgment of the Court of Cassation dismissing the first applicant's appeal against the judgment of the Aix-en-Provence Court of Appeal
“It is apparent from Article 13 (b) of the Hague Convention of 25 October 1980 that an exception to the child's prompt return may be allowed only if there is a grave risk of harm or of an intolerable situation. Under Article 3 § 1 of the New York Convention on the Rights of the Child – a provision which is directly applicable in the French courts – the best interests of the child must be a primary consideration in the assessment of the relevant circumstances.
Without having to deal with a mere argument, the Court of Appeal noted, in its discretion, after referring to the conditions of the child's life with her mother, that there was no evidence that the father had displayed a dangerous attitude towards his daughter, that it had been established that he was neither an alcoholic nor a drug addict, that the child's psychological condition was satisfactory, and that her father would offer her favourable living conditions in the United States, with the assistance of a nursing school graduate. These findings show that the child's best interests were taken into consideration by the Court of Appeal, which rightly concluded, without laying itself open to the complaints in the present appeal, that it was appropriate to order the child's prompt return in accordance with the Hague Convention.”
3. Divorce proceedings initiated by the first applicant in France
“The petitioner's claims, in the light of the evidence concerning the living conditions offered to the child, as noted by the judges of the Aix-en-Provence Court of Appeal, do not appear to be contrary to the child's interests. They must therefore be granted as to their principle.”
4. Custody proceedings in the United States
“In your interview of 14 October 2005 you expressed your fear that you would not be given leave to enter the United States and thus would not be able to visit your daughter Charlotte, since, on the United States immigration questionnaire that you would have to complete, you would be asked expressly if you had committed a wrongful child abduction.
The Ministry of Foreign Affairs is not in a position to give you an assurance that the United States authorities would allow you to enter their country.
I am able to inform you, however, that a representative of the United States Embassy in France, who was asked about this matter on the telephone, indicated that as you would be coming from a State which is a co-signatory with the United States of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, you should not be prevented from entering US territory.”
“Based on the foregoing, this Court will not consider granting the mother unsupervised visitation and will conduct no further hearings on the issues of custody and visitation unless and until all of the following things have taken place:
1. The mother must apply to the appropriate French courts and obtain the following results:
a. An order which vacates any orders which purport to grant custody of this child to the mother.
b. An order which unequivocally and irrevocably acknowledges that New York alone has exclusive subject matter jurisdiction over the issue of custody of this child so long as the father continues to be a resident of New York State.
c. An order registering and recognizing the New York order, granting the father full custody of the subject child, as the only valid order relating to the custody of this child.
d. ...
2. ...
3. Before any unsupervised visitation is granted, the mother must post a cash or surety bond in the amount of $25,000.00 ...
4. Any time the mother is exercising any form of visitation with the child, she must surrender her passport to the child's law guardian ...
5. ..., all visitation with the child shall be supervised and shall be confined to the area of Dutchess County, New York, unless prior court approval has been granted.
I realize these may seem like harsh conditions and restrictions. However, these conditions and restrictions are born of the extremely inappropriate conduct of the mother and the clear attitude and intentions of the French courts and authorities to favor the mother, ignoring applicable laws and international protocols relating to the issues involved in this case.
The mother shall have the right to apply to this court for a relaxation of the conditions outlined above upon notice to this court that the French order purporting to grant her custody of the child has been vacated and the order of this court has been registered and recognized in France as the only valid order ...”
“Dear Madam,
I have been informed by my counterpart in the United States that Mr Washington does not accept the offer of mediation that was made to him, since he cannot be certain of the mother's intentions, and this perhaps explains why you decided, at the same time as he was approached about a friendly settlement, to reactivate the criminal proceedings, of which I have been informed by the public prosecutor of Aix-en-Provence.
The terms of the US judgment being unequivocal, it seems pointless to bring any proceedings in the United States with a view to extending the contact between Charlotte and her mother before securing a change in the French decision concerning parental authority.
It is up to your client to lodge an application for that purpose with the family-affairs judge. The French Central Authority is quite prepared to confer once again with the US Central Authority in order to ascertain what assistance could be provided to Ms Maumousseau should she wish to bring proceedings in the United States for an extension of her access rights, as and when such proceedings are justified by new developments. ...”
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND DOMESTIC PRACTICE
1. Domestic law and the case-law of the Court of Cassation
“In all proceedings relating to him, a minor capable of discernment may, without prejudice to the provisions as to his intervention or consent, be heard by the court or, when his interests so require, a person appointed by the court for that purpose.
A minor shall be granted a hearing if he so requests. If a minor refuses a hearing, the court shall assess the merits of the refusal. He may be heard alone, with a lawyer or with a person of his choosing.
Where that choice does not appear to be consonant with the child's interests, the court may appoint another person.
The hearing of a minor does not confer on him the status of a party to the proceedings.
The court shall ensure that the minor has been informed of his right to be heard and to be assisted by a lawyer.”
“The harm or intolerable situation, within the meaning of [Article 13 (b) of the Convention of 25 October 1980], results as much from the further change in the removed child's current environment as from the environment that he will discover or rediscover in the State of his habitual residence.
Furthermore, after observing, in the light of the expert's report, that Fareed's separation from his mother, taking into account the child's tender age and the circumstances in which he had come to live exclusively with her for over a year, 'would be experienced by the child as the loss of a loved one', the Court of Appeal, exercising its power of discretion, held that for the time being his return to the United States of America would expose him to a grave risk of psychological harm. It therefore justified its decision in accordance with the law.”
In a judgment of 22 June 1999 the same Division dismissed an appeal on points of law as follows:
“The Court of Appeal, which rightly found, based on its own reasoning and that of the court below, that a grave risk of harm or of an intolerable situation – circumstances that under Article 13 (b) of the Hague Convention justify the retention of children who have been removed – might be entailed by a further change in the children's environment, decided in its discretion that separating a three-year-old child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation in view of their tender age.” (Court of Cassation, First Civil Division, 22 June 1999).
2. International law
(a) Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (ratified by France and the United States of America)
43 The relevant provisions read as follows:
“The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:”
Article 1
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
Article 3
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
Article 7
“Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures:
(a) to discover the whereabouts of a child who has been wrongfully removed or retained;
(b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
(c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
(d) to exchange, where desirable, information relating to the social background of the child;
(e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
(f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
(g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
(h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
(i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
Article 12
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith ...”
Article 13
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
Article 20
“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”
Article 21
“An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”
The Hague Convention was adopted on 24 October 1980 by the Fourteenth Session of the Hague Conference on Private International Law (the “Conference”), an intergovernmental organisation, in Plenary Session. In 1982 the Conference produced and published a final Explanatory Report on the Hague Convention to which the Court refers. The report was drafted by Mrs Élisa Pérez-Vera, Reporter to the organisation's First Commission, which had been responsible for preparing the Hague Convention; it is available on the Internet at http://hcch.e-vision.nl/upload/expl28.pdf. Paragraph 34 of the report reads as follows:
“... it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only so far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child's habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration.”
(b) Convention on the Rights of the Child of 20 November 1989 (ratified by France, but not by the United States of America)
44 The relevant provisions of the Convention on the Rights of the Child read as follows:
Preamble
“... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...”
Article 3 § 1
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Article 11
“1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad.
2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.”
Article 12
“1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
(c) Parliamentary Assembly of the Council of Europe
“a. Children must no longer be considered as parents' property, but must be recognised as individuals with their own rights and needs; ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3, 6 § 1 AND 8 OF THE CONVENTION, TAKEN TOGETHER
“1. Everyone has the right to respect for his private and family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The first applicant further argued that she had been deprived of her right of access to a court with full jurisdiction, as both the Court of Cassation and the Court of Appeal had accepted that a court hearing a request for a child's return under the Hague Convention had no authority to examine the situation as a whole in order to determine whether the return was in the child's best interests. She relied on Article 8 taken together with Article 6 § 1 of the Convention, of which the relevant part reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...”
She further alleged that the police intervention at Charlotte's nursery school on 23 September 2004 had constituted ill-treatment and would significantly affect her daughter psychologically. She relied on Article 8 taken together with Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
50 The Court further observes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It notes moreover that no other ground for declaring it inadmissible has been established. It should therefore be declared admissible.
B. The merits
The parties' submissions
(a) The Government
(b) The first applicant
2. The Court's assessment
(a) Reasons for the impugned order for the child's prompt return
As regards the obligations that Article 8 imposes on the Contracting States with respect to reuniting parents with their children, they must be interpreted in the light of the requirements of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (see Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, ECHR 2003 V, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, ECHR 2000 I) and with those of the Convention on the Rights of the Child of 20 November 1989 (see Maire, cited above, § 72).
71. The Court fails to see how the interpretation by the domestic courts of Article 13 (b) of the Hague Convention would necessarily be incompatible with the notion of the “child's best interests” embodied in the New York Convention. It considers, on this point, that it would be desirable if this notion of “best interests” could always be interpreted in a consistent manner, regardless of the international convention invoked. It notes, moreover, that the New York Convention obliges States Parties to take measures to combat the illicit transfer and non-return of children abroad and that these States are urged to enter into bilateral or multilateral agreements or accede to existing agreements – of which the Hague Convention is one (see paragraphs 43 and 44 above).
(b) Conditions of enforcement of the child's return
1. Principles established in the Court's case-law
2. Application of the above principles
84. In the present case, the Court considers that the obligation of swiftness in the implementation of the child's return, together with the mother's obstructive conduct, are factors that the domestic authorities had to take into account when deciding on concrete measures to ensure the effectiveness of the French judicial decision. The Court notes that Charlotte, following the delivery of the Court of Appeal's judgment of 13 May 2004, became untraceable, as her mother had hidden her whereabouts from the authorities to evade execution of the decision (see paragraph 20 above), thus showing the first applicant's total lack of cooperation with the French authorities. The circumstances of the police intervention at Charlotte's nursery school on 23 September 2004, albeit somewhat unclear, for the purposes of enforcing the judgment of 13 May 2004, were therefore the result of the first applicant's constant refusal to hand Charlotte over to her father voluntarily, despite a court order which had been enforceable for more than six months.
86 Consequently, there has been no breach of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
A. Admissibility
88 The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that no other ground for declaring it inadmissible has been established. It must therefore be declared admissible.
B. The merits
1. The parties' submissions
(a) The Government
(b) The first applicant
2. The Court's assessment
95. The Court first observes that the dispute relating to the merits of the custody and access rights is now a matter for the competent judicial authorities of the United States of America, where Charlotte had her habitual residence. It is not therefore the Court's task to address the determination of those rights because that country is not a party to the Convention and, furthermore, the application was lodged against France.
96. The Court reiterates, however, that where the courts of a State party to the Convention are required to enforce a judicial decision of the courts of a country that is not a party, the former must duly satisfy themselves that the proceedings before the latter fulfilled the guarantees of Article 6 of the Convention, such a review being especially necessary where the implications are of capital importance for the parties (see Pellegrini v. Italy, no. 30882/96, § 40, ECHR 2001 VIII).
97. In the present case, even supposing that the applicants' situation is comparable to that of Mrs Pellegrini, who was complaining about a declaration by the Italian courts that a judgment of the Vatican courts was enforceable, the Court notes that the first applicant did not raise a complaint of that nature before the domestic courts or in its own proceedings, on the grounds, firstly, that the proceedings before the competent authorities in the United States had been unfair and, secondly, that the French courts had failed in their duty to ensure, before ordering the child's return, that the first applicant had had a fair hearing in that country (see, mutatis mutandis, Eskinazi and Chelouche, cited above).
98. In any event, the Court, having regard to the material in the case file, has no evidence to suggest that the impugned foreign decisions – the New York State Family Court's orders of 15 September 2003 and 8 March 2004 – were given following proceedings that did not afford the essential guarantees of Article 6 of the Convention (contrast Pellegrini, cited above).
105 The Court, for all these reasons, finds that there has been no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT
Done in French, and notified in writing on 6 December 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Zupančič, joined by Judge Gyulumyan, is annexed to this judgment.
B.M.Z
S.Q.
DISSENTING OPINION OF JUDGE ZUPANČIČ, JOINED BY JUDGE GYULUMYAN
With regret, I feel compelled to file a dissenting opinion in this case because I disagree both with the position of the French Court of Cassation and with the majority's opinion.
To go immediately into medias res, I will refer to paragraph 69, third sentence, where the majority mention that the intent of the Hague Convention is simply to re-establish the status quo ante, in order to prevent the legal consolidation of a factual situation which has been illicit from the very beginning.
In private law we, indeed, adhere to the formula quod ab initio vitiosum est, tractu tempore convalesere non potest. The emphasis in the above-mentioned third sentence is clearly on the qualifier “as fast as possible” (in French: au plus vite). In child psychology it is well known that development takes place in the first six years and that, therefore, what happens in that period of life is determinative of much of the person's adult personality. Because of this crucial period in a child's life, it may well be true that what would have been good for the child yesterday is no longer going to be good for the child tomorrow. The passage of time, in that period of life, is constitutive of personality; the days, weeks, months and years which pass create new “restore points” in the future adult's personality.
The passage of time, in other words, is not simply the passage of time; one may well speak of the fundamental programming of personality. The above-mentioned private law maxim, according to which something that has been corrupt from the beginning is incapable of convalescing, should not apply in child custody matters. The events, among them childhood traumas, create situations in a tender child's psychology which will completely pervade its new development.
It is for that reason that I consider the third sentence in the majority's paragraph 69 as establishing the crucial perspective on the facts of this case.
The mother, who has wrongfully retained the child, admittedly, has illegally created that situation. The situation lasted for 19 months, during which the child was with her in France rather than in the State of New York. Nevertheless, this situation cannot be assessed from a formalistic point of view postulating, for example, that the initial illicit detainment should be seen as something which will contaminate the legal, moral, and above all psychological position of the mother vis-à-vis the child, the father and society at large. It would be inhuman, in any event, to maintain that the mother, who has always taken care of her little girl, would be to blame because she wants to retain the child – despite the opposition of the father and the two legal processes that the father's lawyers have set in motion. Moreover, there were reasons justifying the mother's wish to separate from the father. We will deal with these in the latter part of this dissenting opinion.
One cannot over-emphasise the fact that what has happened in this particular case is simply against the best interests of the child.
The over-reaching criterion of The Hague and New York Conventions – a criterion which ultimately supersedes all other determinative criteria – is precisely and always the “best interests of the child”. It follows logically that it is for each legal organ, including the court of last resort, to keep all other facts of the case in the perspective of its ultimate factual appreciation of what is in the best interest of the child.
On the face of this case, it is impossible to maintain that it would be in any way advantageous for the four-year-old Charlotte Washington to be torn from the hands of her mother by force and transported back to the State of New York into the hands of her father with whom she has not been in any meaningful contact for 19 months. No amount of legalistic acrobatics can overshadow this simple fact. The “best interests of the child” is the fundamental determinative criterion, a true questio facti, which must be assessed de novo by each court including the court of last resort. Even the European Court of Human Right cannot, in a similar case, escape this need for factual assessment.
The perspective in this case is, therefore, what is the prima facie nature of the situation. It is impossible to start from the premise, given precisely the best interests of the child, that the burden should be on the applicants to show that the snatching of the child by the French State from the mother is something which is not legitimate. The simple factual and psychological situation was such that the reverse ought to have been true, that is to say, that the burden ought to have been on the French State to show that it was, despite the passage of time, legitimate to snatch the child by crude police force, put her on an aeroplane and send her to the State of New York.
Here we come back to the third sentence in the majority's paragraph 69 which does admit that the passage of time is essential. It follows logically that the position of the majority is contradictio in adiecto in relation to the precise extent to which its own perspective, as well as the perspectives of the Hague and New York Conventions, do coincide with the criterion “as soon as possible” (au plus vite).
The majority then attempt to circumambulate the contradiction problem in paragraph 71:
“The Court fails to see how the interpretation by the domestic courts of Article 13 (b) of the Hague Convention would necessarily be incompatible with the notion of the 'child's best interests' embodied in the New York Convention”. (emphasis added)
Clearly, the logical misstep derives from the use of the word “necessarily”. The Hague Convention's provision 13 (b), which states:
Article 13
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: ...
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
is not “necessarily” incompatible with the best interests of the child – provided that the restitutio in integrum takes place in a matter of weeks (not months or years!) after the event.
Another logical mistake is made by the majority in paragraph 73, where we read that, according to the Court, to accept the arguments of the mother would undermine the Hague Convention's first objective, which is, according to the majority, to impede the retaining parent from legitimising a unilaterally created situation by the “mere” passage of time which, naturally, plays into his or her hands:
“73. In the Court's view, if the first applicant's arguments were to be accepted, both the substance and primary purpose of the Hague Convention, an international legal instrument in the light of which the Court applies Article 8 of the Convention, would be rendered meaningless, thus implying that the above-mentioned exceptions must be interpreted strictly (see, to this effect, the Explanatory Report on the Hague Convention, § 34, quoted in paragraph 43 above). The aim is indeed to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she unilaterally created.”
What the majority misunderstand here is evidently that the passage of time, whether licit or illicit, is determinative of the best interests of the child. There are plenty of instances of this in the Court's own inconsistent case-law, where decisions have been made to favour the retaining mother or to favour the foster parents after a certain period of time –, for the obvious reason that the child at a tender age who has been in a certain domestic setting in which he or she feels secure would be traumatised if he or she were to be displaced.
This is precisely what Article 13 (b) of the Hague Convention hints at. What counts, in other words, is the well-being of the child in the setting to which the child has not only become accustomed but which has structural influences on the development of his or her personality. To uproot the child in order to vindicate the abstract juridical goals such as announced in the above-quoted paragraphs of the majority, goes against most basic human good sense. In short, one need not be a child psychologist or paedopsychiatrist to understand that a child who has been with her mother all her life, once she has laid down her roots in the stable setting of a small French village, will be traumatised if those roots are cut and the child forcibly sent to the State of New York.
The crucial paragraphs of the majority's opinion, however, demonstrate the same illogicality as the “Court of Cassation's departure from precedent”. In both instances the abstract general prevention has prevailed over the best interests of the child. I asked the pertinent question during the public hearing and I received the answer that there had been no political pressure in order for this to happen. I hope this is true. It is nevertheless difficult to understand how the Court of Cassation could suddenly have begun to prefer the general preventive effect over the best interests of the child.
Be that as it may, the inherent logic of the situation is similar to that in Ignaccolo-Zenide v. Romania and in other similar cases, in which the Court has taken inconsistent positions sometimes approving the best interest of the child and sometimes insisting that the child ought to have been snatched from the parent in question (Nuutinen v. Finland). Given these inconsistencies, it is clear that the Grand Chamber of this Court should rule on the following question:
In situations where the passage of time has created the psychological constellation in which the child's best interest is no longer to be snatched and returned to the complaining parent, the best interests of the child – according to the Hague and New York Conventions – should prevail. Should the best interests of the child be subordinate to a strict formalistic logic given the illegal nature of the initial retention of the child?
Clearly, this question goes to the heart of both Conventions as well as to our own interpretation of Article 8 of the European Convention on Human Rights.
According to Article 43 of the European Convention on Human Rights, the request for referral to the Grand Chamber must be accepted “if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance”. Even if the case-law produced by the Chambers of the Court were completely consistent, which it is not, the question is of such general importance that it calls for the Grand Chamber's reassessment. The Chamber had in fact wished to have the case heard by the Grand Chamber under Article 30 § 1, because it considered that the case raised a serious problem affecting the interpretation of the Convention.
This proves that the Chamber itself, prior to the impediment set forth by the French Government, had considered that it would be necessary for the Grand Chamber to rule on a serious question affecting the interpretation of the Convention. Given that, under Article 30, the parties retain their right to object, a question might be raised as to whether this objection is not in itself incompatible with the purpose and intent of Article 30.
In this connection it is clear that individual parties to a dispute ought not to have a determinative power to influence who, the Chamber or the Grand Chamber, will rule on an important question concerning the interpretation of the Convention. The only way to make Article 30 in fine compatible with the rest of the norm in question is to postulate the possibility that subsequent to the Chamber's judgment there should be a request for referral to the Grand Chamber by one or both of the parties under Article 43 § 1. In a very real sense, therefore, paragraph 2 of Article 43 then binds the panel of five judges to accept this case for Grand Chamber proceedings, as this would have happened under Article 30 were it not for the objection of the French government. The intent of Article 30 in fine is that the Parties retain the possibility that the case as such, without any broad implications for the stare decisis, may first be adjudicated by the Chamber.
The procedure before the Chamber clearly functions here as an ante-chamber to the Grand Chamber.
In paragraph 84 the majority also emphasise the mother's total lack of cooperation, which in turn was supposed to justify the forceful intervention (snatching) by the police in Charlotte's kindergarten. An important aspect of this case derives from the cruel and draconian reactions of the Dutchess County Family Court in the State of New York. There the first instance judge Mr Damian J. Amodeo reacted by immediately depriving the French mother of her custody, which had initially been joint custody, and in fact putting her under suspicion of having kidnapped the child. Such kidnapping of course is a crime in the State of New York1 and would make the mother subject to arrest in the United States at the very port of entry, for example at JFK airport. If the mother wished to contest the decision of the local American judge, if she wanted to appear herself before the Dutchess County Family Court, she would at the very least risk visa refusal and possibly arrest. If she were arrested she would risk imprisonment. The arrest on the probable cause that she had committed a Class E Felony would be wholly within the discretion of the local police.
Moreover, to blame the mother for not having appeared in the Dutchess County Family Court in order to litigate the issue as to whether Charlotte would leave for the US from France is absurd and points to the revanchist attitude of the local American court. The legal reaction of this family judge does not inspire respect; it is an arrogant over-reaction which was later manifest in the draconian conditions which the same judge imposed in case the mother should wish to see the child. To lay down the conditions requiring a 25,000 USD deposit and the deposit of the passport, for the opportunity to see the child in the court's building for a period of half an hour in the presence of a policeman, – in the language of the American Supreme Court Justice Frankfurter – shocks the conscience. Such conditions are completely discriminatory, and this is easy to prove given that such conditions would never have been imposed on a United States citizen.
It is difficult to see how the French Court of Cassation could have overlooked the vindictive nature of the over-reaction of the local judge. This is all the more difficult to understand given that there were suspicions about the father's having inflicted domestic violence for which the local police had to be alerted and called in, as well as suspicions concerning drug abuse by him. It further borders on the absurd to place faith in the father's statement that during his absence for work in the State of New York the child would be taken care of by an unemployed nurse in the apartment building where the father lives.
Family law procedure is not a criminal procedure and therefore suspicions concerning the father's past behaviour can neither be subject to presumption of innocence nor are they to be litigated as if the burden of proof ought to be on the accusing mother. The undisputed fact that the police had been called in by the neighbours because of the reasonable suspicion of domestic violence inflicted by the father should have cast an ominous shadow over the father's appropriateness to assume complete custody of the child. The Dutchess County Family Court judge ought to have weighed the evidence and refrained from his radical reaction based on nothing more but the ex-parte submitted “evidence” of the father. It is then doubly absurd for the French legal system to react complacently in a situation in which everything spoke for the mother except the “general preventive effects” such as alluded to by the majority in paragraph 73.
1 New York Penal Law, Section 135.50 Custodial interference in the first degree. A person is guilty of custodial interference in the first degree when he commits the crime of custodial interference in the second degree: 1. With intent to permanently remove the victim from this state, he removes such person from the state […]
Section 60.12 Authorized dispositions; alternative indeterminate sentence of imprisonment; domestic violence cases […] 2. The maximum term of an indeterminate sentence imposed pursuant to subdivision one of this section must be fixed by the court as follows: (d) For a class E felony, the term must be at least three years and must not exceed four years.