European Court of Human Rights

Information Note on the Court’s case-law No. 154

July 2012

B. v. Belgium - 4320/11

Judgment 10.7.2012 [Section II]

Article 8

Article 8-1

Respect for family life

Forced return to an allegedly abusive father of a child well integrated in the host country: forced return would constitute a violation

 

Facts - In 2003 the first applicant gave birth in the United States to a daughter, the second applicant, who had an American father. For the first four years of her life, the child lived with her mother. In 2004 the first applicant asked the father to waive any rights to custody, which he refused to do. In 2006 the first applicant was convicted of social-security fraud. There followed a long judicial battle for custody of the child, during which the mother referred to a risk of domestic violence against the girl. In October 2008 the first applicant left the United States with the child, without authorisation from either the father or the courts, and settled in Belgium. In December 2008 an American court noted that the child had been abducted by the first applicant and gave sole custody to the father. In January 2009 the American Central Authority applied to the Belgian Central Authority for international child abductions, requesting the girl’s enforced return in application of the Hague Convention on the Civil Aspects of International Child Abduction. At the same time the first applicant brought proceedings with a view to obtaining parental authority and sole custody of the child. As the mother refused to take the child back to the United States, the Belgian Central Authority, acting on behalf of the father, referred the case to the court of first instance, which held in March 2010 that the child’s return could not be justified under the Hague Convention. The court of appeal, to which the Belgian Central Authority had applied, set aside that decision and ordered the first applicant to return her daughter to the United States. The mother appealed on points of law. In February 2011, at the first applicant’s request, the Court ordered the application of Rule 39 of its Rules of Court until the close of the proceedings before the Court of Cassation and subsequently pending the proceedings before the Court.

Law - Article 8: The Belgian courts’ order to return the child amounted to interference, the legal basis of which was the Hague Convention. In the field of international child abduction, the obligations placed on the States by Article 8 had to be interpreted in the light of the requirements imposed, in particular, by that Convention. In the instant case, the national courts had not been unanimous. In addition, the psychological reports on the child indicated that it was not in her interest to be separated from her mother and that a return to the United States would pose a danger to her. It was the appeal court’s prerogative not to attach full credence to psychological reports submitted by one of the parties. However, the appeal court had not attempted, by ordering other reports as recommended by the State Counsel’s Office, to ascertain for itself the true extent of the likelihood that the child would be exposed to an intolerable situation. Nor had it based its decision on a finding that, in the absence of grounds which would objectively justify the mother’s refusal to return to the United States, she could reasonably be expected to return to that country with the child. Finally, it had not relied on the possibility that the mother could accompany the child to the United States in order to assert her residence and visiting rights there. On the contrary, it had merely found that it was improbable that the mother would return to the United States, where she faced a prison sentence and the loss of her parental authority. In addition, the child, who had dual nationality, had arrived in Belgium at the age of five years and had lived there since without interruption. She spoke Dutch and was fully integrated into her surroundings and school environment. Yet the court of appeal had taken account of the “time” factor only from a procedural standpoint. However, the “time” factor was itself a crucial element, which ought to have been taken into account in evaluating more exhaustively the tangible implications of a return. The court of appeal had thus not been in a position to determine, in an informed manner, whether there existed a risk within the meaning of the Hague Convention. The domestic decision-making process had therefore not met the procedural requirements inherent in Article 8 of the European Convention. The child’s forced return to the United States could not be considered necessary in a democratic society.

Conclusion: forced return would constitute a violation (five votes to two).

Article 41: EUR 5,000 to the second applicant in respect of non-pecuniary damage; claim submitted by the first applicant for non-pecuniary damage dismissed.

(See also Neulinger and Shrunk v. Switzerland [GC], no. 41615/07, 6 July 2010, Information Note no. 132; and Šneersone and Kampanella v. Italy, no. 14737/09, 12 July 2011, Information Note no. 143)

 

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