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In the Matter of Kl (A Child) (U.K. Sup. Ct.) & X v. Latvia (Eur. CT. H.R.)

Published online by Cambridge University Press:  20 January 2017

Keith Loken*
Affiliation:
Office of the Legal Adviser, U.S. Department of State

Extract

On December 4, 2013, the Supreme Court of the United Kingdom ruled in In the Matter of KL that a child brought to the UK pursuant to a U.S. district court order–subsequently overturned by a U.S. court of appeals–in a proceeding under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) must be returned to the United States. One week earlier, in a 9-8 decision issued on November 26, 2013, the Grand Chamber of the European Court of Human Rights (ECHR), upholding the judgment of the ECHR Chamber below, ruled in X v. Latvia that the actions of the Latvian courts, ordering Ms. X to return her daughter E. to Australia under the Hague Convention, constituted an infringement of Ms. X’s rights under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Human Rights Convention). These cases provide an interesting contrast in approaches to the international abduction of children.

Type
International Legal Materials
Copyright
Copyright © American Society of International Law 2014

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References

* This text was reproduced and reformatted from the text available at the U.K. Supreme Court website (visited June 5, 2014), http://supremecourt.uk/decided-cases/docs/UKSC_2013_0212_Judgment.pdf.

* This text was reproduced and reformatted from the text available at the European Court of Human Rights website (visited June 5, 2014), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-138992.

1 Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 1343 U.N.T.S. 89, 19 I.L.M. 1501 (1980) [hereinafter Hague Convention]. The Convention requires that a child wrongfully removed to or retained in a foreign jurisdiction be returned to the child’s place of habitual residence.

2 In the Matter of KL (A Child), [2013] UKSC 75 (before Lord Neuberger, President; Lady Hale, Deputy President; Lord Wilson; Lord Hughes; and Lord Hodge).

3 X v. Latvia [GC], App. No. 27853/09, Eur. Ct. H.R. (2013), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=01- 138992.

4 X v. Latvia, App. No. 27853/09, Eur. Ct. H.R. (2011), http://hudoc.echr.coe.int/sites/fra/pages/search.aspx?i=01-107888.

5 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222 (1950).

6 Larbie v. Larbie, 2011 WL 3849492 (W.D. Tex. 2011).

7 Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012).

8 Chafin v. Chafin, 133 S. Ct. 1017 (2013). See also Keith Loken, Chafin v. Chafin (U.S. Sup. Ct.), 52 I.L.M. 829 (2013). 9 Evelyn Larbie petitioned the U.S. Supreme Court for a writ of certiorari. The Court held the case in abeyance pending its decision in Chafin v. Chafin. After Chafin, which held that appeals in cases where the child has already been returned pursuant to the Hague Convention are not moot, the Supreme Court denied certiorari. Larbie v. Larbie, 133 S. Ct. 1455 (2013).

10 DL v. EL, [2013] EWHC 49.

11 Id. ¶ 59.

12 See Proceedings brought by A (Case C-523/07) [2010] Fam 42; Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22.

13 In the Matter of KL (A Child), supra note 2, ¶ 20 (quoting Proceedings brought by A and Mercredi v Chaffe).

14 Id. ¶ 27.

15 Family Law Act 1986, §§ 2(3) and 3(1).

16 In the Matter of KL (A Child), supra note 2, ¶ 28.

17 Id. ¶ 32.

18 Id. ¶ 36.

19 Id.

20 Neulinger and Shuruk v. Switzerland [GC], App. No. 41615/07, Eur. Ct. H.R. (2010). See also Raban v. Romania, App. No. 25437/08, Eur. Ct. H.R. (2010) and Sneersone and Kampanella v. Italy, App. No. 14737/09, Eur. Ct. H.R. (2011).

21 X v. Latvia [GC], supra note 3, §§ 19-21. 22 Citing that report, the District Court stayed the child’s return pending the resolution of the appeal.

23 X v. Latvia [GC], supra note 3, §§ 22-26. 24 Id. §§ 32-33.

25 Article 8 provides:

  1. 1

    1 Everyone has the right to respect for his private and family life, his home and his correspondence.

  2. 2

    2 There shall be no interference by a public authority with the exercise of this rights 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. 26 See Neulinger [GC], supra note 20, § 139. 27 X v. Latvia, supra note 4, §§ 65-79.

28 X v. Latvia [GC], supra note 3, § 76.

29 Id. §§ 84, 88.

30 Id. § 91.

31 Id. §§ 104-105.

32 Id. §§ 106-107.

33 Id. § 108.

34 Id. § 119.

35 Id. §§ 2-3, 6-11.

36 Chafin, 133 S. Ct. at 1024-25, n.1 The Court cited the ruling of the High Court of Justice in In the Matter of KL denying the child’s return.

37 Id. at 1030.

38 See Hague Convention, supra note 1, at Preamble (“Firmly convinced that the interests of children are of paramount importance in matters relating to their custody . . .”).

39 See, e.g., Jeremy D. Morley, The Hague Abduction Convention and Human Rights: A Critique of the Neulinger Case, Int’l Acad., Matrimonial Law. L. J. (2011) http://www.iaml.org/library/iaml_law_journal/index.html.

40 See, e.g., X v Latvia Child Abduction Grand Chamber Judgment, Eur. Ct H.R. Blog, Dec. 17, 2013, http://echrblog.blogspot.com/2013/12/x-v-latvia-child-abductiongrand. html.

1 . Neulinger and Shuruk v. Switzerland (GC), no. 41615/07, 6 July 2010.

2 . Any reference in this opinion to “the Convention” is to the European Convention on Human Rights, “the Hague Convention” is to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the “EU Regulation” is to Council Regulation (EC) no. 2201/2003 of 27 November 2003, “the Court” is to the European Court of Human Rights and the “Special Commission” is to the Special Commission on the practical operation of the Hague Convention. Furthermore, I will refer to the parent unlawfully deprived of his or her custodial rights as the “left-behind parent” and to the parent who unlawfully removed or retained the child as the “abducting parent”. The country to which the child is unlawfully removed or where he or she is unlawfully retained will be referred as the “host country” and the country from which the child has been unlawfully removed or from which he or she has been unlawfully retained as the “country of habitual residence”.

3 . The leading case is Ignaccolo-Zenide v. Romania, no. 31679/96, 25 January 2000.

4 . The leading case is Monory v. Romania and Hungary, no. 71099/01, 5 April 2005.

5 . The leading case is Iglesias Gil and A.U.I. v. Spain, no. 56673/90, §§ 57-59, 29 April 2003. 6. Article 31, para. 3 (c) of the Vienna Convention on the Law of Treaties. See, among other authorities, Ignaccolo-Zenide, cited above, § 95; Monory, cited above, § 81; and Iglesias Gil and A.U.I, cited above, § 61. However, the positive obligation to act when faced with child abduction also applies to non-Contracting States of the Hague Convention (see Bajrami v. Albania, no. 35853/04, 12 December 2006, and Hansen v. Turkey, no. 36141/97, 23 September 2003).

7 . Maumousseau and Washington v. France, no. 39388/05, § 69, 6 December 2007.

8 . Neulinger and Shuruk, cited above, § 139.

9 . The leading case is, evidently, Neulinger and Shuruk, cited above, which was followed by Šneersone and Kampanella v. Italy, no. 14737/09, 12 July 2011, and B. v. Belgium, no. 4320/11, 10 July 2012. Nonetheless, it is important to note that since Neulinger and Shuruk the Court has found most similar complaints inadmissible (see Van den Berg and Sarrí v. the Netherlands (dec.), no. 7239/08, 2 November 2010; Lipkowsky and McCormack v. Germany (dec.), no. 26755/10, 18 January 2011; Tarkhova v. Ukraine (dec.), no. 8984/11, 6 September 2011; M.R. and L.R. v. Estonia (dec.), no. 13429/12, 15 May 2012; and Chernat and others v. Romania (dec.), no. 13212/09, 3 July 2012). In brief, the prudent implementation of Neulinger did not open the door to a flood of similar judgments. The much-proclaimed risk of imminent demolition of the Hague mechanism after Neulinger has proved unfounded.

10 . International child abduction involves either the child’s unlawful removal from one country to another or the unlawful retention of the child within a foreign country. In view of the facts of the case, this opinion will deal only with the first aspect and will refer to the left-behind parent as the paradigmatic example of the person, institution or other body envisaged by Article 3 (a) of the Hague Convention. The two underlying premises of the Hague Convention are, firstly, that the court of habitual residence is best placed (forum conveniens) to resolve the merits of the custody dispute, since the bulk of the relevant evidence is available in that location, and secondly, that abduction is detrimental to the child’s development, because the child is forced to leave behind the primary caregiver parent, family relatives and the known social and cultural environment. In fact, when the Hague Convention was prepared, the sociological stereotype of the abducting parent was that of a foreign, non-custodial father who was not willing to accept the mother’s existing custody over the child, and unlawfully removed the child from his or her country of habitual residence. Since the 1990s this has no longer been true, the majority of cases nowadays being the foreign, custodial mother who leaves, for multiple reasons, the family’s country of habitual residence after the termination of her relationship with the child’s father. Consequently, if the evidentiary premise still holds true today, the substantive one does not.

11 . See Thomson v. Thomson, [1994] 3 S.C.R. 551, which held that the mother’s knowledge of an order preventing a child’s removal from Scotland was not essential. In fact, the Hague Convention does not distinguish between intentional and negligent removal of a child (see Mattenklott v. Germany (dec.), no. 41092/06, 11 December 2006).

12 . Some courts have entertained other “procedural” defences, such as “fugitive disentitlement”, waiver and “unclean hands” (for a summary, see Federal Judicial Center, International Litigation Guide, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, 2012, pp. 91-98).

13 . National courts have discussed whether return would expose the child to such a danger in cases of return to a zone of war, civil unrest, generalised violence, hunger, disease, pollution, adjustment problems, difficult living conditions, a situation of child neglect, abuse, post-traumatic stress disorder and separation trauma (see, among others, French Court of Cassation judgments no. 11-28.424 of 13 February 2013, and no. 10-19905 of 26 October 2011; Italian Court of Cassation judgments no. 22962of 31 October 2007,and no. 10577 of 4 July 2003; Simcox v. Simcox, 511 F.3d 594 (6th Cr. 2007); Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001); and Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996)).

14 . A problematic strict construction of Article 11 (4) and (8) of the EU Regulation has rendered the defences meaningless and thus practically eliminated all checks in the host country (ECJ, Rinau, case C-195/08PPU, judgment of 11 July 2008; Detisek, case C 403/09PPU, judgment of 23 December 2009; Povse, case C-211/10, judgment of 1 July 2010; and Zarraga, case C-491/10PPU, judgment of 22 December 2010).

15 . National courts have considered such factors as duration and stability of residence in the new environment, participation in school and extracurricular activities and language fluency (see Friedrich v. Friedrich, cited above, and Lops v. Lops, 140 F.3d 927 (11th Cir. 1998).

16 . Although not literally restricted to the child’s human rights, this defence has been interpreted as providing only for these, since Article 20 was intended to enact a “very strictly qualified form of ordre public” (Conclusions on the main points discussed by the Special Commission, 1989, para. 38), some arguing that Article 20 is already covered by the earlier grounds for refusing to return a child, listed under Article 13 (Report of the second Special Commission meeting, 1993, response to question 30 of Part III).

17 . It was stressed in the Special Commission that the term “habitual residence” as well as the term “rights of custody” should normally be interpreted in an international way and not by reference to a specific national law (Conclusions on the main points discussed by the Special Commission, 1989, para. 9, Report of the second Special Commission meeting, 1993, response to question 5 of Part III, Recommendation 4.1 of the fourth meeting of the Special Commission, Report on the fifth meeting of the Special Commission, 2006, para. 155, and Conclusions of the Special Commission, 2012, para. 44). As the US Supreme Court has noted, custody rights must be determined “by following the text and structure of the Convention. . . . This uniform, text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage. . .” (Abbott v. Abbott, 130 S. Ct. 1983, 1990 (2010)).

18 . Report of the third Special Commission meeting, 1997, para. 13. So-called “inchoate custody rights” have been accepted by some jurisdictions, such as England (Re B. (A Minor) (Abduction), (1994) 2 FLR 249, Re O. (Child Abduction: Custody Rights), (1997) 2 FLR 702, and Re G. (Abduction: Rights of Custody) (2002) 2 FLR 703) and New Zealand (Anderson v. Paterson [2002] NZFLR 641), but rejected by others, such as Ireland (H.I. v. M.G. (1999) 2 ILRM 1) and Northern Ireland (VK and AK v. CC, (2013) NIFam 6)). As shall be demonstrated below, the concept of “inchoate custody rights” cannot be reconciled with the Court’s, the European Court of Justice’s and the House of Lords’ caselaw.

19 . Conclusions and Recommendations of the Special Commission, 2012, paras. 13, 36 and 80.

20 . Report and conclusions of the Special Commission, 2002, para. 64.

21 . Recommendation 3.7 of the fourth meeting of the Special Commission, 2001; Guide to good practice under the Hague Convention, Part II – Implementing Measures, 2003, para. 6.5.

22 . Report of the second Special Commission meeting, 1993, response to question 1 of Part III. A court, when making a return order, should make it as detailed and specific as possible, including practical details of the return and the coercive measures to be applied if necessary (Guide to good practice under the Hague Convention, Part IV – Enforcement, 2010, paras. 4.1 and 4.2 of the executive summary).

23 . In some jurisdictions, mostly common-law countries, these stipulations may range from non-enforceable undertakings assumed by the left-behind parent to the possibility to secure a “mirror order”, i.e. an order made by the court in the country of habitual residence that is identical or similar to a previous order made in the host country (Recommendations 1.8.2 and 5.1 of the fourth meeting of the Special Commission, Report on the fifth meeting of the Special Commission, 2006, paras. 228 and 229; and Recommendations 1.8.1 of the fifth meeting of the Special Commission; Guide to good practice under the Hague Convention, Part I – Central Authority Practice, 2003, para. 4.22).

24 . See the Pérez Vera Report, para. 25: “these exceptions are only concrete illustrations of the overly vague principle whereby the interests of the child are stated to be the guiding criterion in this area”. This statement must be read in conjunction with the view that the principle of the best interests of the child resembles “more closely a sociological paradigm than a concrete juridical standard” (para. 21).

25 . Article 3 § 1 of the United Nations Convention of the Rights of the Child (1989) acknowledges a principle of customary international law which had already been reflected in the preamble of the Hague Convention, stating that “Firmly convinced that the interests of children are of paramount importance in matters relating to their custody. . .”. This is also in accordance with principle III B 2 of the Committee of Ministers’ Guidelines on child-friendly justice, 2010, Articles 4 and 29 (a) of the African Charter on the Rights and Welfare of the Child, 1990, and the UNHCR Guidelines on Determining the Best Interests of the Child, 2008.

26 . See in this direction House of Lords, in re M (FC) and another (FC) (Children) (FC), [2007] UKHL 55, and Re D (Abduction: Rights of Custody) [2006] UKHL 51; French Court of Cassation judgment no. 04-16.942 of 14 June 2005; Italian Court of Cassation judgment no. 10577 of 4 April 2003; High Court of Australia, DP v Commonwealth Central Authority [2001] HCA 39; Supreme Court of New Zealand, Secretary for Justice v. HK, judgment of 16 November 2006; and Conclusions of the Special Commission of 2012, para. 42.

27 . The Pérez-Vera Report, paras. 25, 34 and 116; Recommendation 4.3 of the 2001 meeting of the Special Commission; Recommendation 1.4.2 of the fifth meeting of the Special Commission; Report on the fifth meeting of the Special Commission, 2006, paras. 155 and 165; and Recommendation 4.3 of the fourth meeting of the Special Commission; and 42 U.S.C. § 11601(a)(4) (“narrow exceptions”), the US Department of State, Hague International Child Abduction Convention, Text and Legal Analysis, at 10510, and the Federal Judicial Center, International Litigation Guide, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges, 2012, p. 64.

28 . When national authorities apply international treaties, the Court’s role is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I, and Korbely v. Hungary [GC], no. 9174/02, § 72, ECHR 2008). The same applies to the Hague Convention (see Neulinger and Shuruk, cited above, § 133; Šneersone, cited above, § 85, 12 July 2011; and B v. Belgium, cited above, § 60). Sometimes the Court not only criticises the interpretation of the relevant legal framework (see Monory, cited above, § 81, and Carlson v. Switzerland, no. 49492/06, § 77, 6 November 2008), but also the inadequacy of the legislation itself (see Iglesias Gil and A.U.I., cited above, § 61).

29 . The court of the host country does not necessarily have to be satisfied beyond any reasonable doubt on both the return requirements and the defences to return, since nothing suggests that the required standard of proof is anything other than the ordinary balance of probabilities (see M.R. et L.R. v. Estonia (dec.), cited above, § 46, and Re E (Children) (Abduction: Custody Appeal), (2011) UKSC 27). Indeed, the provisional and summary nature of return proceedings speaks in favour of this lighter standard of proof.

30 . Klass v. Germany, judgment of 6 September 1978, Series A no. 28, § 42, and The Observer and The Guardian v. the United Kingdom, 26 November 1991, Series A, no. 216, § 59.

31 . As the High Court of Australia in D.P. v. Commonwealth Central Authority, [2001] HCA 39, the South African Supreme Court in Sonderup v. Tondelli, 2001 (1) SA 1171 CC, and the UK Supreme Court in Re E. (Children) (Abduction: Custody Appeal), [2011] UKSC 27, rightly concluded, there is no need for the defence provisions to be narrowly construed. Nor is there any need for an additional test of exceptionality to be added to the defence provisions (Re M. (Children) (Abduction: Rights of Custody), [2007] UKHL 55).

32 . This is not an oddity of the European human rights protection system (see Article 34 of the Inter-American Convention on International Return of Children, 1989).

33 . The clearly disproportionate decision of the Australian Family Court of September 2009 to prohibit the mother to converse with her own daughter in Latvian speaks for itself! A child’s Article 8 rights may be severely damaged after return to States not bound by the Convention, without any practical legal avenue for the applicant before the Court.

34 . The need for an additional protocol to the Hague Convention which would codify basic guarantees and obligations in the enforcement stage of the return order, enshrine a binding mechanism of uniform interpretation of the Hague Convention and oversee the States Parties’ compliance with their obligations is patent. The lessons learned with the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children, 1980, and the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement, and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, 1996, could provide some guidance therein.

35 . The same applies obviously in the inter-American human rights system, where the Inter-American Commission has already found that the making of a return order pending an appeal does not breach the American Convention on Human Rights and thus reviewed the Argentine court’s decision in return proceedings under a supranational standard (report no. 71/00, X and Z v. Argentina, 3 October 2000, paras. 38, 51 and 56).

36 . It is also not irrelevant to refer to the persuasive force of the Court’s case-law, which may play a role in the way non- European countries apply the Hague Convention. Conversely, the case-law of the inter-American and African human rights systems could also influence the way in which the European courts and the Court apply the Hague Convention. A rich dialogue could emerge among international courts, which would promote the development of universal legal standards and further the progress of children rights.

37 . I am not ready to accept the easy critique that we cannot have our cake and eat it, meaning that an “in-depth” investigation in urgent and expeditious proceedings is almost equivalent to squaring the circle. First, as already explained, the subject-matter of the investigation is limited by Neulinger to the specific context of the return application. Second, having had the benefit of intervening in many family-law cases, including Hague Convention cases, I am convinced that a thorough, limited and expeditious investigation is perfectly feasible if judges strictly control its timetable. An “in-depth” judicial enquiry does not have to be obtuse, ill-defined and self-indulgent.

38 . In the X. and Z. v. Argentina case, cited above, para. 60, the Inter-American Commission found that the evaluations of the child conducted by a psychologist and a court-appointed social worker, who interviewed both parents and the child, did not breach the right to fair, impartial and rapid proceedings.

39 . At first sight, it appears that the majority distances itself from the principles of Neulinger and Shuruk (see paragraph 107 of the judgment). But this is an illusory impression. The majority also calls for an “effective examination of allegations made by a party” (see paragraph 118). The replacement of the adjective “in-depth” by the adjective “effective” does not change much, especially if one takes in account that the Grand Chamber still understands that the Court’s remit includes the assessment of the substantive aspect of the child’s “human rights” when evaluating return orders (see paragraph 117). In other words, the present judgment does not really change the Neulinger and Shuruk standard.

40 . Similar omissions were censured in B. v. Belgium, cited above, § 72, and Sneersone, cited above, § 95.

41 . As occurred in Sylvester v. Austria, no. 36812/97 and no. 40104/98, 24 April 2003, and in Mattenklott, cited above.

42 . In Mattenklott v. Germany, cited above, the return order was based on a paternity test taken by the unmarried father and the presumption of exercise of custody rights at the time of removal, resulting from the father’s occasional access to the child prior to that moment.

43 . So-called inchoate child custody rights have been the subject-matter of two cases before the Court. In Balbontin v. the United Kingdom, no. 39067/97, 14 September 1999, the Court confirmed the domestic courts’ interpretation to the effect that even were they to grant the unmarried applicant parental responsibility after the removal of the child from the UK, this would not make the removal of the child unlawful ex post facto. In Guichard v. France, no. 56838/90, 2 September 2003, the Court found inadmissible the application made by an unmarried father who did not have custody rights when the child was removed from France, although he had officially recognised his son prior to birth. Based on this case-law, the ECJ adjudicated a similar case in which an unmarried father did not take steps to obtain custody rights prior to the child’s removal from the country of habitual residence. The child’s removal to another country represented “the legitimate exercise, by the mother with custody of the child, of her own right of freedom of movement, established in Article 20(2)(a) TFEU and Article 21(1) TFEU, and of her right to determine the child’s place of residence” (J. McB. v. L. E., C-400/10 PPU, judgment of 5 October 2010, para. 58). Finally, in In Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, the House of Lords held that de facto custody is not sufficient to amount to rights of custody for the purposes of the Hague Convention. Since at the time of the removal the mother had sole custody of the child, the subsequent attribution of custody rights to the registered father could not render the removal wrongful. The UK courts were not bound by the finding of the Australian court in this regard. In Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, Baroness Hale clearly endorsed In Re J as the governing authority in this area.

44 . This finding is not invalidated by the Australian Central Authority’s declaration that at the time of the child’s removal from Australia T. had joint parental responsibility over E. Firstly, that declaration was not binding for the Latvian authorities. Secondly, since the concept of “custody rights” has an autonomous meaning in the Hague Convention, the Australian declaration cannot, in the unique circumstances of the case and in the light of the Convention, ascribe “custody rights” to T. for the purpose of triggering the mechanism of the Hague Convention.

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