The author of this post is Nadia Rusinova, Lecturer in International/European Private Law at The Hague University of Applied Sciences. This is the sixth in a series of posts aimed to explore the impact of the coronavirus crisis on the phenomena of mobility and exchange that form the constituent elements of private international law, and to discuss the responses that private international law rules provide to the challenges posed by the crisis itself (see the previous contributions by Giovanni Chiapponi, Matthias Lehmann, Tomaso Ferando, Caterina Benini and Aygun Mammadzada). The EAPIL blog welcomes further contributions on such topics, either in the form of comments to the published posts or in the form of guest posts. Those interested in proposing a guest post for publication are encouraged to contact the blog’s editorial team at email@example.com.
Despite the obvious need for extraordinary measures during the pandemic, the restrictions we face as a response to the threat posed by the COVID-19 engage a number of rights, protected under the ECHR (hereinafter, the Convention). Individuals are entitled to fundamental rights protection even – and especially – in case of an emergency. In this sense, we already ask ourselves: are the adopted measures proportionate and targeted, are they required by the exigencies of the situation, are they not inconsistent with other obligations under international law? Do we need new approaches to respond to this unprecedented situation?
The importance of private international law for family issues in an era of globalization is immense and the topic acquires particular significance due to the increasing mobility and internationalization of the child and of the family. The private international law aspects of international child and family law in the context of international child abduction, intercountry adoption, cross-border surrogacy, cross-border relocation, etc. are frequently dealt with in many cross-border cases and these rapid developments must result in the development of uniform guidelines.
With international borders closed and containment measures in place, cross-border movement of people and goods is subject to unprecedented restrictions. In many jurisdictions, children and families remain stranded. Access to government services remains limited. Legal procedures have been delayed or suspended. Without doubt the future judgments and decisions of European Court of Human Rights (hereinafter, the Court) in this context will have an impact on the main issues of private international law, including the recognition and enforcement of foreign judgments.
This post focuses on the potential impact of the COVID-19 measures on the assessment of Article 8 violations in its family life aspect. As this is a complex question, this post explores an issue of how the State responses can be seen as an interference in the family life and whether the States ensured adequate regard for Article 8 rights in the context of the pandemic. In particular, concrete example of how domestic courts apply the imposed measures in handling remote family law proceedings is discussed, and the compliance of these approaches with the requirements of the Convention is analyzed.
In the present abnormal circumstances, the fundamental principles of substantive law remain unchanged. Therefore, the procedural aspect of Article 8 is in the center of this post as closely linked to the rights and interests protected by Article 6 of the Convention.
The legal aspects of a pandemic of this magnitude is still terra incognita for the domestic courts and understandably, for the Court as well. The only judgment so far, which concerns the impact of influenza quarantine seen as an interference in the family life related to a parent-child contact is Kuimov v Russia (2009).
In this case foster homes’ management refused the father to exercise his rights of access to his child on the ground that an influenza quarantine had been introduced, however the applicant could speak to the child on the telephone during this time. After the quarantine in the foster home was lifted, the father could resume his face-to-face meetings with his child.
In its assessment the Court found that the restrictions on the father’s access to the child were imposed with the “legitimate aim of protecting child’s health and rights”. Moreover, the Court accepted the Governments’ explanation that the access to the foster home was restricted due to a quarantine, which did not last an unreasonably long time – around 7 weeks. In addition, the father was allowed to come and see the child through the glass window on a weekly basis. In the circumstances of the case and regard being had to the States’ margin of appreciation, the Court was of the view that there was no violation of Article 8 on account of the restrictions imposed by the authorities on the applicant’s access to the child, in respect of the period of the quarantine.
In response to the COVID-19 pandemic, already mid-March it became clear that measures should be taken, and taken fast, by the States in order to protect individual human rights. Further steps need to be taken in the next days, weeks and months, may be even years; we will experience the consequences for long time ahead. The impact of these measures will be widely felt, and some groups will be affected more than others. All in all, these measures entail the broadest mass restriction of liberties our generation have ever seen.
The rights protected by Article 8 of the Convention make no exception. On the contrary – family life and particularly parent-child relationships suffer to a high extent from the rollercoaster we found ourselves in. As a consequence, the domestic courts are called upon to assess, elaborate and reflect on this situation for years ahead. Naturally, this is the rationale behind the multiple derogations to Article 8. Therefore, even adequately taken in order to respond to the threat posed by COVID-19, these measures will have certain implications on the future assessment of Article 8 violations by the Court as well.
This would be completely new perspective when determining what would constitute a breach of Article 8 in the aforementioned context. The Corona crisis places also the question how is the vulnerability of the children needs to be regarded in the current pandemic. The Court will be asked to adjust to this new setting its child-specific human rights approach, developed with the years, taking into consideration three interrelated concepts: the inherent vulnerability of children, the best interests of the child and the circumscribed children’s autonomy which gradually increases with their evolving maturity (see, among others, M. and M. v Croatia, § 171).
The Court has found that the notion of “family life” under Article 8 of the Convention encompasses de facto “family” ties. The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending on the existence of close personal ties. The interferences in parent-child relationships could impact not only the “classical” parental responsibility disputes and child abductions, but foster care and adoption cases as well.
As to the derogations from obligations under the Convention, the Council of Europe acknowledges in the document titled Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis: A Toolkit for Member States that the measures taken by the States vary depending upon the specific situation in the States concerned.
The large margin of appreciation of States as regards the existence of emergency and of the required measures is unavoidable. As suggested by Kanstantsin Dzehtsiarou, the magnitude of this crisis will clearly translate into significant margin of appreciation allowed to the authorities. This in turn means that the Court will apply looser test of proportionality and if the measures go beyond what is necessary under this loose test of proportionality, then violations are possible.
Potential violations of Article 8 have already been voiced in domestic court proceedings over the last few weeks. The Court will likely be asked to deal with similar allegations in the future. It is of course uncertain how the Court will look at these allegations and whether the current crisis will affect the interpretation of the Convention. The Kuimov case, a quarantine with a duration of 7 weeks and a limited local impact can hardly compare to the current global pandemic. Thus, the roles and perspectives of different stakeholders in child law in the private international law sphere at international level (parents – mothers and fathers, judges, the children themselves, other relatives, etc.) need to be reconsidered to respond adequately to this new situation.
States’ responses and domestic courts procedural actions – interference in the family life
If we try to foresee how the future case-law will look, the first question is what can be considered as “interference” in the current situation. The primary purpose of Article 8 is to protect against arbitrary interferences with private and family life, home, and correspondence by a public authority (Libert v France, §§ 40-42). This obligation is of a negative kind, described by the Court as the essential object of Article 8 (Kroon and Others v the Netherlands, § 31). However, Contracting States also have positive obligations to ensure that Article 8 rights are respected including as between private parties (Evans v the United Kingdom [GC], § 75).
In this sense, interference in times of Corona, related to the right of family life under Article 8 are clearly present. Firstly, the application of the general, mainly procedural rules, adopted by the state’s authorities in emergency response to the COVID-19, and secondly, to give example of particular application of these responses – the various approaches taken by courts in determining how to deal remotely with the specific case in the context of the pandemic.
States Emergency Responses
Shortly after the seriousness of the situation became clear, many States responded to the threat posed by the COVID-19 by setting the rule that decisions regarding parental responsibility still apply, with the caution that the exercise of parental rights and right of access has to be respected in the health context. Due to the pandemic, courts are mostly closed and, generally, the only applications that can be reviewed in family matters are international child abduction cases, urgent claims to obtain a restraining order in cases of domestic violence and, in some cases, provisional and protective measures. As to pending and future cases – for instance parental disputes that are not yet introduced to the court but still might be urgent, the hearings that were originally set during the “lockdown period” have generally been cancelled or postponed. Lodging new applications is possible, but they are not immediately entertained.
As an example of the emergency measures adopted in some States, a state of health emergency was declared in France for two months from 24 March 2020 until 24 May 2020. During the lockdown, the courts have been dealing only with international child abduction cases and urgent applications for restraining order in cases of domestic violence. In Spain, precautionary measures under Article 158 of the Spanish Civil Code are available at this time only in urgent cases. Deadlines remain suspended until further notice, but since 15 April 2020, it has been permissible to file new applications with the court. In Italy the suspension has some exceptions, namely in the field of family law matters and protection of vulnerable people:
some Juvenile Tribunal procedures take place, like adoption procedures, foreign children without parents procedures, children brought away from their families, and situations of heavy risk for the child; surprisingly the same procedures in front of the Court of Appeal are not explicitly exempted from suspension.
The Approaches of Domestic Courts
In sum, Europe-wide, the message from the governments is that existing judgments on custody and access must be maintained, except where there is a concrete risk to the child’s health because of one of the parents’ behavior or living environment, which may give an opening to a modification. The difficulty arises from the fact that assessment of all particular claims is far not realistic having in mind the dimensions of the pandemic and the limited resources of the courts to react at this moment.
However, the courts soon recognized that regardless the danger of potential contamination, blanket policy that children should follow their usual visitation regimes is inconsistent with a comprehensive analysis of the best interests of the child. Therefore, the presumption is that existing parenting arrangements and schedules should continue, but subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to, including strict social distancing.
This approach reflected into recent court decisions, concerning the rights protected by Article 8. The health, safety and well-being of children and families remains the courts’ foremost consideration during COVID-19. In many cases, a parent’s personal risk factors (through employment or associations, for example) required controls with respect to their direct contact with a child. A parent’s lifestyle or behavior in the face of COVID-19 (for example, failing to comply with social distancing; or failing to take reasonable health-precautions) raised sufficient concerns about parental judgment that direct parent-child contact would have to be reconsidered.
Compliance of the interference with the requirements of Article 8
Turning to the question how these interferences are to be assessed in the light of the Convention, we should note that like most Convention rights, Article 8 is not absolute. Article 8(2) enumerates the legitimate aims which may justify proportionate interference by a public authority and potential infringement upon the rights protected in Article 8.
At least three of these justifications in the aforementioned context can well be related with the Corona crisis: public safety, protection of the health, and protection of the rights and freedoms of others. In the present situation the purpose of the measures is clearly to limit the spread of the Coronavirus by imposing certain limitations, and it logically seems to constitute “legitimate aim”.
The Court is however quite succinct when it comes to assessing the existence of a legitimate aim within the meaning of Article 8(2) (S.A.S. v France [GC], § 114). Following the rule established in its case-law, in future cases it will be for the respondent Governments to demonstrate that the interference pursued a legitimate aim (Mozer v the Republic of Moldova and Russia [GC], § 194). They will need to show that the particular measure in question aimed at protection of public safety, health, and rights and freedoms of others, depending upon the specific situation in the particular country.
Moreover, the States concerned will need to argue the proportionality of these measures, which might be the greater challenge in this situation. As a principle, the restriction impacting upon fundamental rights is unlikely to be proportionate if a less restrictive method could have been used to achieve this legitimate aim. The concept of proportionality in times of pandemic puts great burden on the authorities, requiring them to strike a fair balance between the interests of the individual whose rights are being impinged upon, and the interests of others or of the community. When life is at stake, like now, that is a particularly difficult balance to strike. In the context of the current pandemic the question is: could these measures be less restrictive?
At this point it is almost impossible to determine the proportionality of the emergency responses, because we must primarily assess the legislative choices underlying it. In addition, the national authorities were forced to make initial assessment in days (if not hours), with all the wide margin of appreciation left to them. In this regard, the Court should give leeway to the Contracting States and their policy makers (see this post by Vassilis P. Tzevelekos at Strasbourg Observers for a discussion on this point).
To summarize whether the potential infringement upon Article 8 is necessary in a democratic society in these pandemic times, we should follow the approach of the Court and balance the interests of the State concerned against the rights of the individual.
In leading Article 8 case, the Court clarified that “necessary” does not have the flexibility of expressions as “useful”, “reasonable”, or “desirable” (which would be nowadays very convenient), but implies the existence of a “pressing social need” for the interference in question (Dudgeon v. the United Kingdom, § 51). In this context, we should note that if such measures are in principle regarded and announced as a temporary, amended frequently according to the developments and are discontinued as soon as circumstances permit, in pandemic situation with this magnitude the pressing social need such measures to be imposed may be considered as present.
Speaking specifically of the discussed domestic courts’ approaches, of course, the substantial compliance with the Convention cannot be assessed altogether as it would always depend on the unique circumstances of the case. From procedural point of view, of particular interest is the question if the remote or hybrid hearing is sufficiently fair to meet the requirements of Articles 6 and 8 of the Convention. For instance, where lies the balance with the potential delay of the proceedings, in case the remote hearing is considered not suitable in the particular case?
Traditionally, in cases concerning a persons’ relationship with his or her child, there is a duty to exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter (Ignaccolo-Zenide v Romania, § 102; Süß v Germany, § 100, Strömblad v Sweden, § 80) By its nature, a remote hearing, if appropriate at all, can replicate some but not all of the characteristics of a fully attended hearing. The parties should always stay alert to ensure that the dynamics and demands of the remote process do not impinge upon the fundamental principles. Remote hearings also place additional, and in some cases, considerable burdens on the participants – for instance, despite the right of translation is not absolute in the view if the Court, the language barrier appears as greater issue than in the traditional hearings, which in a cross-border context could be decisive.
How in this context to assess if the safeguards of Article 8 and Article 6 have been regarded? There is no straightforward answer, but in the present crisis the assumption must be that such a process is capable of being fair and meets the requirements of both provisions.
First of all, when assessing the suitability of the remote process, the courts must seek to ensure that it does not become overloaded by making distinction between those decisions that must be prioritized and those that must unfortunately wait until proper time is available. In some cases, even when it is much more difficult for the judge to watch the reactions of the parties to the evidence and although this is a general disadvantage of the remote hearing, it cannot be considered as major issue. Overall, the technology could be capable of providing a satisfactory hearing and the judge would understandably continue with remote proceeding, when the urgency is prioritized, even at the expense that at the end the usual basic procedural safeguards may have been in some way overlooked. Despite all this, it seems that this could not be assessed as a violation of Article 8 and 6 in cases when a child has been held in limbo for a long time.
Naturally, the suitability of the remote hearing will be raised (among the other issues) as a complaint before the Court. In its case per case analysis the Court should assess it not only as a separate procedural issue, but also in its interplay with the whole emergency situation.
Different factors should be taken into account, such as whether each of the parties could engage sufficiently with the professional evidence to an adequate degree for the process to be regarded as fair, and whether each of the parties have been able to follow and to understand the court hearing and to instruct their lawyers adequately in a timely manner. Checking that the demands and dynamics of the remote hearing did not encroach upon the central principles of a fair proceedings is crucial.
In these cases it would be good practice already now the domestic courts to discuss it in their arguments, relating to the requirements posed by the Convention (see for a good example the ruling of the Family Court of England and Wales in Re S (a child), § 13). Some pandemic-specific caveats should also be considered, for instance the fact that the highly pressured circumstances in which all the participants are working could lead to a chain reaction in the course of which fundamental legal and procedural principles come to be compromised despite the best intentions of a range of dedicated professionals.
As a conclusion, last months and weeks turned upside down the world as we know it. Governments tried to keep human rights and fundamental freedoms at the heart of measures to combat the pandemic, yet forced to take various emergency actions. At this point we can only guess whether these measures comply with the requirements of the Convention. Now, as the outbreak of COVID-19 slows down, it is probably a good moment to see if human rights are not forgotten in such uncertain times – there is still time to exercise more attentive monitoring of the level of protection and to make better choices.