Enforcement of custody in the face of children’s dissent: should law prevail?

4 April 2013 by Rosalind English

Raw and others v France – read judgment (only available in French)

This complicated inter-jurisdictional battle between estranged parents is a stark illustration of how difficult it can be in these sorts of cases to apply the law in the fog of family warfare.

Even though the mother’s case was upheld in the Strasbourg Court, one can tell from the modesty of the damages awarded and the strength of the minority opinions that the judges were extremely reluctant to apply hard letter law to the complicated case before them. Indeed in one partially concurring judgment, Judge Nussberger found it distinctly odd that the mother was able to join the children as parties, in the light of their opposition to her wish that they leave their father to join her. He noted that

The previous jurisprudence of the Court offers no solution the conflict of interest present in this case. This is all the more regrettable in that this contradicts the Convention on the Rights of the Child, which obliges to hear and respect the views of the child (Article 12)

Whilst the practice of the Court is to allow a parent to enter the name of a minor child to report a violation of the Convention in a custody dispute with the other parent (Diamante and Pelliccioni v Marino), it did not seem justifiable to transpose this approach to child abduction cases, especially if the child has explicitly expressed his intent and that he disagreed with the parent who wants to represent him. In theory, in these cases, both the father and mother could ask to represent the child, each with contradictory positions. Such a situation is not in the best interests of the child and or in the interest of a fair trial before the Court.

In my opinion, to avoid such “exploitation” of children in conflicts between adults and children, we should deny parents the right to represent their minor children, unless there a decision of a competent national institution confirming that pursuing a case before the Court is in the best interests of the child.

The following summary of the facts is based on the Court’s  press release.

The applicant mother, Samantha Raw, had been involved in a bitter custody dispute with the French father of their two sons, D and A. In 2002 French court granted custody to the mother and let her and the children return to England.  On 28 December 2008, while D and A were in France for Christmas and were due to return to their mother, their father went to the police station in La Roche-sur-Yon, referring to his children’s suffering, their fear of returning to the United Kingdom, the educational shortcomings in that country, instances of ill-treatment and the threats made by their son D to harm himself or to attack his mother were he obliged to return. By an order of 2 January 2009, after having heard D and A, the children’s judge for La Roche-sur-Yon provisionally awarded residence rights to their father; the reason given was the unhappiness expressed by the adolescents. Psychological reports drawn up for the court also recommended that the boys be looked after by their father.

However, following an application by Ms Raw, the English High Court  held on 9 January 2009 that the retention of D and A by their father was unlawful and ordered that they be returned to their mother. The High Court made the children wards of court until further order. The English authorities sent a complaint under the International Child Abduction Convention to the French government, which used an emergency procedure to compel the father to restore the boys to their mother. A French judge ordered the father to do so. He appealed, but neither the appeals court nor the French Supreme Court would reverse the decision.  In the light of the ward of court order, the father could not rely on Article 13 of the Hague Convention, which permitted the State authorities not to order the child’s return, since Article 11 of Brussels Regulation II bis (on the enforcement of civil judgments) specified that a court could not refuse to return a child on the basis of Article 13 of the Hague Convention if adequate arrangements had been made to secure protection of the child after his or her return. In this case, the boys having been made wards of court, their well-being would be appropriately monitored in their country of habitual residence. On 17 March 2009 Ms Raw lodged a complaint alleging failure to return the children, and on 16 April the Poitiers Court of Appeal upheld the judgment in her favour.

In June a meeting was organised between D and A and their mother in the presence of the welfare facilitator, their father, an educator and a psychologist. This attempt to re-establish contact was unsuccessful on account of the children’s negative reaction: D attacked his mother physically and A, shouting and crying, refused to meet her. Ms Raw’s lawyer wrote to the French Minister of Justice on 6 October 2009, complaining about the French authorities’ refusal to use police force to ensure execution of the French court’s ruling that the children should be returned to the UK. For the next six months the French Central Authority and the prosecutor’s office exchanged information about the case, but no measure was taken to encourage compliance with that judgment. In April 2010 the Poitiers Public Prosecutor told Ms Raw that, although the judgment ought to be executed, it would not order its enforcement, considering that, “given the children’s ages and personalities, it would not be apt to implement it”. In July 2010 the Central Authority for England and Wales wrote to the French Central Authority requesting execution of the original judgment in favour of the mother, specifying that Ms Raw was available to come to France to collect her children. The French Central Authority transmitted this request and the Poitiers Public Prosecutor confirmed his refusal.

In December 2009 A. secretly asked his mother to come and collect him. She did so, and took him back to the United Kingdom. The Hague Convention no longer applies to D’s situation, since he reached the age of 18 on 9 January 2011. He continues to live with his father in France.

Proceedings before the Strasbourg Court

The mother, joining her children as applicants, complained that the French authorities had failed to respect her right to family life by ensuring that D and A were returned to Great Britain.

The Court upheld the complaint, concluding that the French authorities had not taken all of the measures that they could reasonably have been demanded of them to facilitate execution of the Poitier Court of Appeal’s judgment ordering the return of D and A to the United Kingdom. By 5 votes to 2, the Court held that there had been a violation of Article 8 and ordered France to pay the applicants jointly 5,000 euros in respect of non-pecuniary damage and EUR 5,500 in respect of costs and expenses.

Reasoning behind the Court’s decision

The Court stressed that the Convention must be applied in accordance with the principles of international law. The positive obligations imposed on states by Article 8 in the matter of reuniting a parent with his or her children had to be interpreted in the light of the Hague Convention on the Civil Aspects of International Child Abduction  and the Convention on the Rights of the Child, dated 20 November 1989, which emphasised the paramount nature of the child’s interests. The Court noted the rapidity with which the French authorities reacted once the procedure provided for by the Hague Convention had been launched.  On the other hand, the Court acknowledged that the children’s best interests called for a certain prudence on the part of the authorities where tangible factors – such as those identified in that report – gave grounds for considering that their return could be detrimental to them. The Court noted that the French authorities had used various methods to convince the father of D and A to cooperate in organising their return to the United Kingdom.

As the mediated meeting between D and A and their mother had failed completely and the boys had been deeply affected by that event, the Court considered it understandable that the public prosecutor at the Poitiers Court of Appeal had decided that, as things stood, a return to their mother in the United Kingdom could not take place.The Court noted that the French Central Authority had nonetheless pursued its efforts, in collaboration with the Central Authority for England and Wales.  But the Court  also noted that the French authorities gradually reduced their activity. Thus, for six months no measure was taken which was likely to encourage compliance with the French court’s judgment in the mother’s favour.

The Court did not dispute the authorities’ decision to give priority to an approach based on cooperation and negotiation. Indeed, Article 7 of the Hague Convention stressed the need to seek an amiable resolution. The Court considered that the decision by the Public Prosecutor at the Poitiers Court of Appeal not to resort to forcible execution of the judgment of 16 April 2009 and the Prefect’s decision of 19 August 2009 to refuse the use of police force were not open to criticism. The Court considered, however, that coercive measures could have been taken against the father. In this respect, it failed to understand why the relevant French authorities had not taken any action on the complaint filed by Ms Raw alleging failure to return the children. The Court was aware that one of the difficulties faced by the authorities in this case arose from the attitude of the children themselves, who had clearly stated their refusal to return to their mother in the United Kingdom. It considered, however, that attitude was not necessarily immutable. It further observed that, although the children’s opinion had to be taken into account when applying the Hague Convention and Brussels Regulation II bis, their objections were not necessarily sufficient to prevent return.

In his dissenting opinion, Judge Lemmens took issue with the entire rationale behind the judgment. Whilst acknowledging that the conduct of the French authorities should be judged in the light of the judgments ordering the return of the children, the strength of their opposition to such a move should be taken into account:

 the task of the Court is limited to judging the facts only from the perspective of the positive obligations on the state, imposed by the right to respect for family life of the applicants. But the French authorities have a certain margin of appreciation. The majority believes that they have not taken all measures that could reasonably be required of them (paragraph 95). For my part, I attach decisive significance to the outcome of the [failed] reconciliation meeting on 4 June 2009. I believe that the authorities, acting as they did, were properly guided by the best interests of children as they saw understood them (and their interpretation does not seem unreasonable). This assessment, which I realise involves an element of subjectivity, leads me to conclude that the authorities remained within the margin of appreciation enjoyed by the State in relation to the Convention.

See Ronald Sokol’s fascinating account of this case in the New York Times: When Justice Can’t be Done
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