The Limited Impact of Article 8 ECHR on Article 13(1)(b) 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.
A previous post on this post discussed the chamber decision of the European Court of Human Rights (ECtHR) in 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).
On 28 March 2024, a Chamber ruled, by a majority of 6:1, that there had been no breach of Article 8. Following this ruling, a request was made to refer the case to the Grand Chamber.
On 23 September 2024 a panel of five judges considered the request for referral, assessing, as per Article 43 of the European Convention on Human Rights, whether the case raised ‘a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance’.
The request for referral was rejected.
Accordingly, the chamber judgment of 28 March 2024 in the case of Verhoeven v France became final on 23 September 2024.
Although disappointing, this decision, like the majority chamber decision, is not entirely surprising. Recent ECtHR jurisprudence has favoured a formalistic understanding of the operation of the HCCA (see Thompson v Russia (2021) and Vladimir Ushakov v Russia (2019)), in which the lens of Article 8 ECHR offers a narrow view of the HCCA. In both of those judgments, Judge Dedov, delivering the dissenting opinion, criticized the HCCA framework for failing to grasp and adapt to the real-world context in which it operates. That is to say, functioning to the detriment of the accompanying (expat) spouse who is also the primary carer of the child – much, much more often than not, the mother.
Verhoeven differs in one important way from both Thompson and Vladimir Ushakov
In Verhoeven there was a serious allegation of domestic violence (DV) requiring the domestic courts to consider non-return under the Article 13(1)(b) defense. This, arguably more urgently than ever, demands a contextualized approach to examining the operation of Article 13(1)(b) in light of Article 8. DV is a complex matter that has historically been poorly understood and equally poorly addressed within legal architectures and systems. As pointed out in the original post on this case, a more robust reading Article 8 vis-à-vis the operation of the Article 13(1)(b) would have facilitated a contextualized approach to the law, that is better equipped to handle DV cases. Such an approach is exemplified in the dissenting opinion of Judge Mits. As it stands, the ECtHR have etched over the lines previously drawn on the reach of Article 8 in respect of Article 13(1)(b); not too wide, not too deep.
Verhoeven clearly raised important questions regarding the appropriate interpretation and application of Article 8 in relation to the HCCA, particularly Article 13(1)(b). Moreover, the seriousness of the matter is amplified given the alleged circumstances of DV, which – absurd as it is to have to reiterate – is a serious issue in itself, in all its forms. Just, it seems, not serious enough.
Feeling like have to drop a word as I participated to the Thompson case, I can say I am a bit disappointed that The Hague Abduction Convention is not directly considered as a procedural one, which involves directly the concept of mutual respect and trust as a default issue between the states; thus, the DV allegations could be better served at the place where they took place, and not where the abductors escapes to for their own reasons.. The Hague Convention being the juridical expression of the best interests of the child should not be thought to renew the discussion of what are the best interests of the child, once another case emerges. Instead, the Convention is based on the presumption that the court of the country from where the child is illegally taken abroad is better placed to analyze the problems of the given family than any other court, and that is the main formula of the Convention which should not be doubted as it reflects the basic relationships between the states, those of cooperation ones as they are defined in the UN Status.
Thank you so much for responding with your insights and experience, Andrey. I understand the point that you are making. However, the dynamics of DV, particularly when it is taking place abroad, means that the country of origin might not be as accessible to victims of DV as it appears on paper/in theory. I think that presumption is being challenged in these DV cases, and indeed via the work of social scientists exploring the matter empirically. While viewing the Convention as a purely procedural framework provides a certain clarity, I am not convinced that it serves the reality of the situation that victims of DV face. The law must be cognisant of the context in which it operates. I think we can do better. What do you think?