The mother, Samantha, was a British national. She had two children – Austin and Dylan – by her former partner: they were born in 1995 and 1997, respectively.
The parents separated in 1999. Samantha then left
France (where the family were living) in 2001 and travelled to the . UK
|London's High Court of Justice|
This side of the Channel, Samantha attended before the High Court in
in January 2009. The English court determined that the father had wrongfully retained Dylan and Austin in London . It directed the father to return them to Samantha’s care. France
Armed with that decision, Samantha made an outgoing request under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Abduction Convention”). That Convention, which is supplemented within the EU by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Brussels II revised”), confirms that the default response to an intercountry child abduction is the return of the child/ren to the country where they ordinarily live. Only in unusual cases should that default response be disengaged.
, in early February 2009 a Judge considered Samantha’s application under the Hague Abduction Convention. That Judge decided that the default response was the right one, and that Dylan and Austin should go home to their mother. France
|Austin and Dylan|
But nothing then happened, and in March 2009 Samantha complained about the failure on the part of the French authorities to return the children.
The father sought to challenge the decision that the children must return home, but his appeal was refused in April 2009. The
French Appeal Court found that the children’s objections to going back to the were not sufficient to prevent their return. UK
Enforcement (or not)
Over a further month passed before a meeting was arranged between Dylan and Austin and Samantha, in early June 2009. The children reacted in a very hostile way to their mother: Dylan attacked her physically and
was shouting and crying and refused to meet with her. Austin
Not much seems to have been done then for months and months, and in October 2009 Samantha’s lawyer complained about the French authorities’ refusal effectively to bring about the children’s return home.
The Public Prosecutor in
finally met with Samantha in April 2010 (so, for those not following the chronology as closely as they might, A YEAR after the decision that the children must be returned). That meeting was to “take stock” of the situation. The Prosecutor apparently informed Samantha that, although the Judgment ought to be executed, he would not order its enforcement, considering that, “given the children’s ages and personalities, it would not be apt to implement it”. France
Communications between officials in the
UK and France continued into Summer 2010, with the former confirming Samantha was available to come to to collect her children. However, nothing further was done on the Continent. France
In December 2010,
secretly contacted Samantha and asked her to come to collect him, which she did. She returned with Austin Austin to the . Dylan, however, remained with the father. UK
D turned sixteen in January 2011, which meant he could no longer be subject to an order under
Abduction Convention (which only applies to children under the age of sixteen). He continues to live with his father in the Hague . France
Samantha’s Complaint to the European Court
|The original text of the Human Rights Convention|
Article 8 is headed “Right to respect for private and family life”, and reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
“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.”
Samantha’s application was lodged in January 2011.
European Court’s Decision
In ruling on Samantha’s application, the
European Court reiterated that the ECHR must be applied in accordance with principles of international law. With regard to the positive obligations imposed by Article 8 in reuniting a parent with his or her children, these had to be interpreted in the light of Abduction Convention and the UN Convention on the Rights of the Child. These instruments emphasised the paramount nature of the child’s interests. the Hague
European Court noted that the French authorities had nonetheless pursued efforts, in collaboration with agencies in the , to bring about the return. So, an assurance was forthcoming that the children would not be handed over to their mother on return and would not have contact with her. The assurances continued that the father could remain with the children pending a decision locally on residence. UK
However, then the French responses to the situation became less laudable. The authorities there, the
European Court noted, gradually reduced their activity. Thus, no steps likely to implement the children’s return were taken between the autumn of 2009 and April 2010. Even then, the extent of the French authorities’ action was to invite the father to make contact for the purpose of arranging a meeting. He did not respond. It did not appear that the authorities took any significant steps after that date.
|The European Court in Strasbourg, France|
|A European Court courtroom|
The decision is not yet final. Within three months, any party may request the referral of the case to the Grand Chamber of the Court. If that is done, a panel of five Judges will consider whether the case needs further examination.