ECHR Article 8-1
Respect for family life
Lack of participation of a parent in proceedings concerning the return of his child under the Hague Convention: violation
Facts – The applicant, a Spanish national, had a child with a Slovak woman in Spain. A year later the mother took the child to Slovakia. The applicant lodged an application with the Bratislava I District Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the Hague Convention’) and Council Regulation (EC) No. 2201/2003,* complaining that the mother had wrongfully removed the child. After holding two oral hearings at which the child’s court-appointed representative failed to appear, the District Court ordered the child’s return to Spain where the child had its habitual residence. The Bratislava Regional Court upheld the decision and the Supreme Court declared the mother’s subsequent appeal inadmissible. The mother then filed a complaint against the Supreme Court with the Constitutional Court, without the applicant being informed. The Constitutional Court found that the child’s rights had been violated because the child’s representative’s failure to appear had not been a valid reason for ruling on the matter without having the child’s views established. Consequently, the case was remitted to the District Court. In the fresh set of proceedings the District Court interviewed the child and his representative, and, guided by the best interests of the child, ruled that the child was not to be returned to Spain. On appeal, the ruling was upheld by the Bratislava Regional Court.
Law – Article 8: The applicant complained that the Hague Convention proceedings had been arbitrarily interfered with by the Constitutional Court’s judgment. The Court recalled that the State had positive obligations under Article 8 to adopt measures to secure respect for family life, including measures that enable parents to be reunited with their children. In meeting these obligations, the State must strike a fair balance between the competing interests at stake – those of the child, of the two parents and of public order – within the margin of appreciation afforded to it. Moreover, the decision-making process involved must be fair and such as to ensure due respect of the interests safeguarded by Article 8.
Since the applicant was not a party to and had no standing to intervene in the proceedings before the Constitutional Court and, indeed, had had no official means of finding out about the proceedings, the Court found that there had been a complete lack of procedural protection. That lack of protection had been aggravated by the fact that all ordinary and extraordinary remedies against the return order had been exhausted. Consequently, Slovakia had failed to secure to the applicant the right to respect for his family life under Article 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 19,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
* 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
Human Rights, Family, International
Updated: 17 December 2021; Ref: scu.535174