Can Article 8 ECHR Reshape the Operation of Article 13(1)(b) of The Hague Child Abduction Convention?

The author of this post is Nishat Hyder-Rahman, Postdoctoral Research Fellow, MSCA Impact Fellowship Programme, Department of Private and Economic Law, Vrije Universiteit Brussel.

On 28 March 2024, the European Court of Human Rights (ECtHR) ruled on the case of Verhoeven v France. The case concerned whether the French courts’ application of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (HCCA) was in breach of the applicant’s right to respect for family life under Article 8 of the European Convention on Human Rights (ECHR). A majority of 6:1 concluded that there had been no breach of Article 8.

A request for a referral to the Grand Chamber has been made and is currently pending.

Factual Situation

The applicant, Marine Verhoeven (V), is a French national. V married K, a Japanese national, in 2007 in France, and thereafter moved to Japan with him. In 2015 the couple welcomed a child, L. In July 2017 V and L visited France; during that visit V informed K of her intention to remain in France with L, and filed for divorce from K.

Under the framework of the HCCA, to which both France and Japan are State parties, K instigated proceedings for return of the child. In November 2017 Japan’s Central Authority requested the French Central Authority to order L’s return to Japan. The Montpellier Tribunal de grande instance duly summoned V to appear before the court on 8 January 2018.

During the proceedings V explained that her decision to remain in France was not premeditated, but one taken after her arrival in France in 2017 following a diagnosis of depression by her French doctor. In Japan, she had felt isolated and abandoned by K, their relationship had deteriorated, and K’s family were not supportive. V submitted, firstly, that K had acquiesced to her decision to remain in France with L, thus engaging the exception to return in Article 13(1)(a) HCCA. Secondly, V alleged to have suffered verbal abuse and one instance of physical abuse by K. Consequently, she argued, returning to Japan posed a grave risk of exposure to harm to L as an indirect victim of domestic violence (DV), within the meaning of the exception to return in Article 13(1)(b) HCCA. Thirdly, she contended that as a French national under the Japanese legal frameworks on divorce, parental responsibility, and residency, she would likely be deprived of her parental rights, resulting in a severance of the parent-child relationship between herself and L. Given L’s young age and given the fact that she had been his primary carer since birth, any separation would constitute a grave risk of exposure to psychological harm for L, as per the Article 13(1)(b) exception.

On 8 February 2018 the Tribunal de grande instance handed down its decision. The court did not find that K had unequivocally acquiesced to L remaining in France with the applicant. Further, the court ruled that domestic violence had not been established per the evidence submitted, and that there was no evidence that L himself was at risk. Finally, the court was not convinced of the risk of severance of the parent-child relationship between V and L, and the subsequent trauma this would cause L. The court did not deem it necessary to appoint a psychological expert on this point. Thus, the court, having found L’s removal to be wrongful under Article 3 HCCA, and not convinced of the engagement of the either of the exceptions to return within Article 13, ordered L’s return.

V unsuccessfully appealed the decision to Montpellier Court of Appeal, who upheld the lower court’s ruling in full. This decision too was appealed to the Cour de cassation. The Cour de cassation found that the lower court had not investigated the risk of severance of parent-child ties between V and L, and the consequent serious risk of psychological harm to the latter. Accordingly, the court quashed the Montpellier Court of Appeal’s decision and remitted the case to the Toulouse Court of Appeal.

Despite the public prosecutor’s arguments that the request for return be rejected – particularly on the ground that V would risk losing her parental rights and residency rights in Japan in the event of divorce, resulting in a separation from L and trauma to the latter, and consequently that L’s best interests were served by remaining in France – the Toulouse Court of Appeal upheld the Tribunal de grande instance’s decision fully. A further appeal to the Cour de cassation was dismissed.

On 26 December 2019 the public prosecutor informed V of the return order, and it was carried out the same day.

V then applied to the ECtHR on 13 March 2020, claiming that that the decision of the French courts, ordering the return of L to Japan, breached her Article 8 right to respect for family life.

Japanese Legal Framework on Parental Rights

It is helpful to briefly the explain the current legal situation in Japan before proceeding to the ECtHR judgment. Although the law in Japan has recently been amended, these amendments were passed after the ECtHR judgment, and will not come into effect until 2026.

At the time Verhoeven v France was heard, and the time of writing, under Japanese law, upon the divorce of a married couple with children only one parent can retain parental authority. In cases of divorce by mutual consent, the spouses themselves can decide on who will retain parental authority, how it will be exercised, and the visiting rights of the parent without parental authority. However, there are no mechanisms available to enforce the agreed arrangement.

Furthermore, the parent who retains parental authority may remarry and have their new spouse adopt any existing children from the previous marriage without any legal obligation to inform their former spouse and biological parent of the children. In short, shared custody of children is only permitted within marriage. This legal framework has been widely criticized, including by the United Nations, European, and French legislative bodies, for failing to maintain the best interests of children, and those of the non-custodial parents.

The current Japanese framework is particularly problematic when the non-custodial parent is foreign national who might lose their residency rights in Japan following a divorce, thus making maintaining contact especially difficult, as argued by V in the present case.

Majority Decision

The case was unanimously declared admissible and assigned to a chamber of 7 judges. The Court considered the alleged violation of the Article 8 in the French courts’ application of the HCCA, against the background of broader socio-political discontents with the well-documented legal difficulties faced by Franco-Japanese families.

In a majority decision, the court confirmed that the appropriate legal framework, the HCCA, and provisions therein (Articles 3, 12, 13 and 19) had been applied. Furthermore, it recalled the decision in X v Latvia that called for a combined and harmonious application of the ECHR and the HCCA.

Regarding Article 8, the Court reiterated that it is a qualified right. The Court agreed that V and L enjoy a relationship within the meaning of ‘family life’ in Article 8. It further acknowledged that the application of the HCCA is in accordance with French law and that any a return order under the said convention constitutes an interference with that Article 8 right. However, it noted that an interference with Article 8 may be allowed if it is in pursuit of a legitimate aim, and necessary to achieve that aim: ‘necessary in a democratic society…for the protection of the rights and freedoms of others’ (Article 8(2)). Thus, balancing the competing interests – V and L’s Article 8 right, K and L’s rights under the HCCA, and public policy interests – whilst bearing in mind the best interests of the child was at the heart of the court’s inquiry in determining the legitimacy of the interference.

Mindful of Article 3 United Nation’s Convention on the Rights of the Child, the Court acknowledged that the best interests of the child must be a primary consideration in all actions that concern them. This somewhat jars with the HCCA. Return proceedings are understood not to be best interests proceedings in form and operation, that being the preserve of custody proceedings in the child’s country of habitual residence. Thus, best interests was conceptualized as ‘prevention and immediate return’ (para 51) within the framework of the HCCA, rather than a fuller concept of best interests.

Importantly, the Court emphasized that its task was not to substitute its own judgement for that of the domestic courts, but rather to ascertain whether the decision-making processes of the domestic courts leading to the disputed return order were fair and allowed the parties involved to assert their ECHR convention rights fully. Accordingly, the court scrutinized the domestic courts’ decisions on four key points:

1. Whether K had acquiesced to L’s retention in France, rendering the HCCA inapplicable (this argument was eventually dropped by V).
2. Whether the L’s best interest had been pursued throughout the proceedings, particularly whether the grave risk to L of direct and indirect harm had been properly assessed, given the allegations of K’s DV.
3. Whether the risk of psychological harm to L resulting from a separation from his mother, V, had been properly assessed, given L’s young age and the fact that V had always been his primary carer.
4. Whether return would likely result in the severance of contact and the parent-child relationship between L and V, in light of legal framework on parental authority in Japan and V’s status as a foreign national.

On all four points the majority analysed and concluded that the domestic courts had effectively examined the matter and provided sufficient reasoning for their decisions, which in their view pursued the child’s best interests. The Court determined that the domestic courts had not ordered L’s return mechanically but had assessed V’s arguments in a fair and adversarial process, within its margin for doing so. There was, therefore, no violation of Article 8.

Dissenting Opinion

Judge Mits, in a refreshingly impassioned opinion, disagreed with both the approach taken by the majority, as well as their final decision. Opening with a bold statement on the majority’s compliance with the letter of the law, but not its spirit, the judge argued that there had been a breach of Article 8.

The judge devoted the first half of his dissent to a critique of the legal and policy framework of the HCCA. Drawing on theoretical and empirical literature, the judge recounted well-established arguments on the HCCA’s inability to appropriately handle situations involving DV. Firstly, since its inception over 40 years ago, the demographics of HCCA cases have changed. Today, the taking parent is more likely to be the child’s mother and primary carer, fleeing from difficult situation (such as DV) in either the father’s home country or a third country, to her home country. This situation, exemplified in Verhoeven v France, was not anticipated by the drafters. Readers will note the use of gendered language here – this follows the opinion, in which Judge Mits acknowledged DV as a clearly gendered issue (para. 13).

Secondly, despite applicability of Article 13(1)(b) to situations of DV, the threshold for engaging the exception is set high. The Guide to Good Practice emphasizes the exceptionality of non-return, encouraging a narrow interpretation of Article 13(1)(b), and the need for sufficient evidence. This demand for evidence to be used in a legal context (e.g. a police report) fails to understand the nature of DV. Given the power dynamics, victims do not easily report their situation, and this is even less likely if DV is taking place in a foreign country. Thus, in situations of DV, more often than not, the HCCA serves the abuser, not the victim. It forces the taking parent who victim of DV to make a choice: Either, she returns with her child and faces her abuser (and possibly retaliation or escalation of abuse) as well as the added difficulties of navigating these complex legal and personal matters in a foreign country. Or, she returns her child alone and loses contact, temporarily or even permanently. To expect the mother as primary carer to return with the child, is in Judge Mits’ words to ‘completely disregard the mother’s right to privacy and personal autonomy, as guaranteed by Article 8…’ (para 7).

The judge then turned to the case at hand. The domestic courts’ treatment of the arguments in relation to DV was assessed first, and then the separation between L and V.

Judge Mits criticized the domestic courts for adopting an overly formalistic approach to matter of DV. The domestic courts categorically pointed to a lack of evidence of DV. However, the judge argues, they refused to obtain an expert opinion assessing the psychological harm that L had a) already suffered, and b) would be at risk of in the event of a return. Moreover, the domestic courts failed to consider the inherent difficulties of reporting DV, recounted above.

Regarding the matter of separation, the judge levelled several criticisms. First, that the domestic courts had conflated two questions regarding separation: whether V could return to Japan pending full custody proceedings, and then, whether the result of the custody proceedings would result in a severance of the relationship between L and V. Accordingly, neither question was considered in a thorough-going manner. Second, that the courts refused to acquire an expert opinion on the impact of separation on L vis-à-vis both questions. Furthermore, in light of Japan’s legal position on parental authority, Judge Mits asserted that ‘when the domestic courts ruled on the return of the child, they were in fact ruling on the separation of the child from his mother’ (para 17). The reasoning of the domestic courts on this point, was considered by the judge to be ‘so succinct that it is difficult to see which aspects of the case they considered’ (para 19).

Reiterating the unsuitability of the HCCA for cases involving DV, Judge Mits called for its revision. He underlined the limitations to the harmonious interpretation of the HCCA and ECHR, namely, the concrete and effective guarantee of rights under the ECHR. Finally, the judge disagreed that the domestic courts had carried out the effective examination demanded by Article 8, as they had failed to take into account the context and factors pertaining to both DV and separation that were relevant to the assessment of engaging the exception to return. Ending with a rhetorical question that captures the essential grievance of this case and cases like it, Judge Mits asks: ‘If the Hague Convention had instead offered an equal choice between the two solutions, i.e. the return of the child to his father or the acceptance of his removal alongside his mother, would the best interests of the child, as enshrined in Article 8 of the Convention, really plead in favour of return?’

Concluding Thoughts

This case highlights the serious flaws in the current operation of the HCCA, a matter that has been acknowledged in the context of the Hague Conference itself. Earlier this year in June the Hague Conference held an informal forum on domestic violence and the operation of Article 13(1)(b), gathering academics, professionals, and citizens from around the world to share their expertise and lived experiences of the HCCA.  The forum offers hope that the problems with the HCCA highlighted in cases such as Verhoeven v France will receive much-overdue attention.

Notwithstanding the above, the chamber judgment in Verhoeven v France is a missed opportunity. It is disappointing, although perhaps not surprising, that the ECtHR majority opted for a formal and rather guarded approach to the interaction between Article 8 ECHR and Article 13(1)(b) HCCA. This hinged on the majority accepting, without query, the stringent interpretation of Article 13(1)(b) that prevails in current practice and assessing the domestic courts accordingly. A more robust reading of Article 8, as per Judge Mits’ dissent, demands that an effective examination of whether Article13(1)(b) is engaged, takes into account the true nature and dynamics of DV, international family mobility, and the specific parent-child relationships at stake. This is important, for laws do not operate in a vacuum, but within social, psychological, legal, economic etc. contexts. An approach to Article 13(1)(b) that is cognizant of these contexts remains within the obligation in X v Latvia – arguably, it promotes a clearer and more congruent application of Article 8 ECHR and HCCA than the status quo. Frustratingly, the chance to bring the ECHR approach to the HCCA in line with contemporary and evidence-based understandings of international child abduction in the context of DV was passed on by all but the dissenting judge.

However, if the referral is accepted, the Grand Chamber has before it another opportunity: to follow Judge Mits’ dissenting opinion and lead the way in reshaping the jurisprudence on Article 8 ECHR and Article 13(1)(b) HCCA in the context of DV. To do so would be a radical and welcome step towards protecting the women (and, much more rarely, men) and children who are victims of domestic violence.

— Note: The translations of the quotations used from the judgment from French into English were provided by the author with the help of DeepL.