Thursday, 7 March 2013

French authorities failed British mother in Cross-Channel custody dispute

The European Court of Human Rights found today that the French authorities had failed to have sufficient respect for the family life of a British mother and her two children.

The case, Raw and Others –v- France (Application No. 10131/11), concerned steps taken (or not taken) by agencies of the French State to give effect to decisions about the return of the children to their mother’s care. 


Background


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. 

Samantha Raw

A French Judge dealing with the family’s circumstances decided that parental authority should be exercised jointly by both Samantha and the father.  Further, the French court decided that Dylan and Austin should live with Samantha in England.  A regime of contact (access) by the children to the father in France was defined.


It was under that contact regime that the children went to France in December 2008 to stay with the father.  Whilst there, the father presented the children at a local police station.  He complained the children were suffering in Samantha’s care.  He said they feared returning to England, and had recounted to him instances of ill-treatment.  According to the father, Dylan had threatened to harm himself or attack Samantha if he were forced to go home.
      

Court Proceedings


The father started proceedings first in time.  Dealing with his application, a French Judge made an interim order, in January 2009, in favour of the father providing for Dylan and Austin to live with him.  He heard from the children and said the unhappiness they expressed justified the decision.  The French Judge also commissioned a series of enquiries intended, amongst other things, to establish the parenting abilities of each parent.  A report was prepared by a psychologist and a welfare assistant, which recommended that Dylan and Austin be looked after by the father.

London's High Court of Justice
This side of the Channel, Samantha attended before the High Court in London in January 2009.  The English court determined that the father had wrongfully retained Dylan and Austin in France.  It directed the father to return them to Samantha’s care. 

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. 

Back in France, 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. 
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 UK were not sufficient to prevent their return.


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 Austin was shouting and crying and refused to meet with her. 

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 France 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”.

Communications between officials in the UK and France continued into Summer 2010, with the former confirming Samantha was available to come to France to collect her children.  However, nothing further was done on the Continent.

In December 2010, Austin secretly contacted Samantha and asked her to come to collect him, which she did.  She returned with Austin to the UK.  Dylan, however, remained with the father.

D turned sixteen in January 2011, which meant he could no longer be subject to an order under the Hague Abduction Convention (which only applies to children under the age of sixteen).  He continues to live with his father in France.


Samantha’s Complaint to the European Court


Arising from the way that the French authorities had responded to the children’s predicament, Samantha complained that her rights under the European Convention on Human Rights (“ECHR”) had been breached.

In particular, she asserted her rights under Article 8.

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.


The 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 the Hague Abduction Convention and the UN Convention on the Rights of the Child.  These instruments emphasised the paramount nature of the child’s interests.

The court commended how rapidly the French authorities reacted once the procedure under the Hague Abduction Convention had been started.  It also noted that the French authorities had used various methods to convince the father to cooperate in organising the children’s return to the UK.  As the meeting between Dylan and A and their mother in June 2009 had failed so completely, and had deeply affected the children, the court considered it understandable that the French authorities had decided that, as things stood, a return to Samantha in the UK could not take place.

The European Court noted that the French authorities had nonetheless pursued efforts, in collaboration with agencies in the UK, 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.

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
The court was not critical of the French authorities’ decision not to resort to forcible execution of the children’s return, and not to enlist the police to help bring that return about.  However, it considered that coercive measures could and should have been taken against the father.  In not taking those coercive measures, the French authorities had been remiss.

Of the children’s views, the court recognised that the difficulties encountered arose from the attitude of the children themselves.  They had clearly stated their refusal to return to Samantha in the UK.  The European Court considered, however, that that attitude was not necessarily immutable.  That this was so was shown by Austin’s decision to return home to live with Samantha.  The court further observed that, although the children’s opinions had to be taken into account when applying the Hague Abduction Convention and Brussels II revised, their objections were not necessarily sufficient to prevent return.

A European Court courtroom
The court concluded that the French authorities had not taken all of the measures that they could reasonably have taken to bring about Dylan’s and Austin’s return to the UK.  By 5 votes to 2, the court held that there had been a violation of Article 8.

France was ordered to pay €5,000 by way of non-pecuniary damage and €5,500 towards costs and expenses.

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. 

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