Information Note on the Court’s case-law No. 103
December 2007
Maumousseau and Washington v. France - 39388/05
Judgment 6.12.2007 [Section III]
Article 8
Article 8-1
Respect for family life
Return of a child to its father in the United States under the Hague Convention on the Civil Aspects of International Child Abduction: no violation
Facts: The applicants are Sophie Maumousseau, a French national living in France, and her daughter Charlotte Washington, who was born in the United States and has dual French and American nationality. Charlotte lives with her father in the United States. The application concerns the return of Charlotte, then aged four, to the United States further to an order by the French courts in December 2004 based on the Hague Convention and a decision by a US court granting custody of the girl to her father. The child, whose habitual residence had been in the USA, had arrived in France in March 2003 for a holiday with her mother, who had then decided not to return to the USA but to remain with her daughter in France.
In May 2000 Ms Maumousseau married David Washington, a national of the United States. Their daughter Charlotte was born in August 2000. The couple’s marriage subsequently went through a very troubled period. In March 2003, with her husband’s consent, Ms Maumousseau took Charlotte on holiday to France, to stay with her parents. She later refused to return with her daughter to the USA, despite repeated requests from her husband. In September 2003 a US Court granted interim custody of Charlotte to her father, at his main place of residence, and ordered Ms Maumousseau to return the child immediately. Charlotte’s father then applied to the US Central Authority, which submitted a request to the French authorities, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, to secure Charlotte’s return to the United States.
As Ms Maumousseau refused to return her child, the French prosecution service brought proceedings against her. At first instance the French courts took the view that it was not appropriate to order Charlotte’s return to the United States on account of a grave risk that she would be placed in an “intolerable situation”, within the meaning of the Hague Convention of 1980. Meanwhile the US court awarded the father sole custody of the child and ordered her return. In May 2004 the French Court of Appeal ordered that Charlotte be returned immediately to her place of habitual residence in the United States on the ground that it had not been shown that there was a grave risk that Charlotte’s return would expose her to physical or psychological harm or place her in an intolerable situation. The Court of Cassation, reversing its previous case-law, upheld that judgment in June 2005.
In July 2004 Ms Maumousseau was informed that she would be guilty of a criminal offence if she kept her daughter in the current situation, but she reiterated her refusal to comply with the judgment ordering Charlotte’s return to the United States. In late September 2004 a public prosecutor, assisted by four police officers, entered Charlotte’s nursery school seeking to enforce the judgment. Ms Maumousseau, her parents and staff from the school physically resisted the police intervention by forming a protective barrier around the child, with the help of some villagers. Faced with this resistance, in the course of which blows and insults were apparently exchanged, the public prosecutor provisionally discontinued enforcement of the decision.
Ms Maumousseau applied to the children’s judge, who ordered Charlotte’s placement in care, with rights of contact for both parents, then the Court of Appeal ordered that Charlotte be returned to her father, in conformity with the US court decisions and the judgment of May 2004 based on the Hague Convention. The following day, on 4 December 2004, the girl left France for the United States.
In February 2006 the US court allowed Charlotte’s father’s application for a restriction on Ms Maumousseau’s access rights (under supervision, after handing over her passport and depositing a security of 25,000 US dollars). In April 2007 the French court granted a divorce and ordered that Charlotte was to live with her mother, her father being allowed access.
In her application Ms Maumousseau submitted that her four-year-old daughter’s return to the United States had been contrary to her interests and had placed her in an intolerable situation in view of her very young age. She further alleged that the police intervention at Charlotte’s nursery school in September 2004 would leave her daughter with significant psychological after-effects. In addition, she argued that she had been deprived of her right of access to a court with full jurisdiction, both the Court of Cassation and the Court of Appeal having agreed that the court asked to consider a request for a return on the basis of the Hague Convention had no authority to examine the situation as a whole in order to determine whether the return was in the child’s best interest. She relied, inter alia, on Articles 8 and 6 § 1.
Law: Article 8 – Reasons for the decision ordering Charlotte’s return to the United States: The main issue for the Court to determine was whether, in ordering Charlotte’s return to the United States, the French courts had maintained a fair balance between the conflicting interests in the case – those of the child, her two parents and public policy.
The Court could not accept the mother’s argument that a court asked to consider a request for a return on the basis of the Hague Convention had no authority to examine the situation as a whole in order to determine whether the return was in the child’s best interests.
The Court failed to see why the domestic courts’ interpretation of Article 13 (b) of the Hague Convention should be necessarily incompatible with the notion of the “best interests of the child” embodied in the New York Convention on the Rights of the Child. It considered it preferable that the notion of “best interests” should always be interpreted in a consistent manner, no matter which international convention was being referred to.
The French courts had taken into account Charlotte’s “best interests”, understood as her immediate reintegration into the environment she was familiar with. In particular, they had carefully examined the family situation as a whole, studied a number of different factors, conducted a balanced and reasonable assessment of the respective interests and constantly endeavoured to ascertain what was the best solution for Charlotte.
There was no cause to consider that the decision-making process that led the French courts to order Charlotte’s return to the United States had been unfair or had not permitted the applicants to assert their rights effectively. The Court held that the fact that the domestic courts had not heard a four-year-old child in the instant case did not amount to a violation of Article 8.
Conditions of enforcement of the return order (police intervention at the school):Since the judgment ordering Charlotte’s return the child had become untraceable, as her mother had hidden her whereabouts from the authorities to evade execution of the decision. That showed Ms Maumousseau’s total lack of cooperation with the French authorities. The circumstances of the police intervention at Charlotte’s nursery school were therefore the result of her mother’s constant refusal to hand the child over to her father voluntarily, despite a court order which had been enforceable for more than six months. Although intervention by the police was not the most appropriate way of dealing with such situations and might have traumatic effects, it had taken place under the authority and in the presence of the public prosecutor, a professional State legal officer invested with a high level of decision-making responsibility under whose orders the accompanying officers were placed. Furthermore, faced with the resistance of the people who had taken the applicants’ side in the dispute, the authorities had not persisted in trying to take the child away.
Conclusion: no violation (five votes to two).
Article 6 § 1 – The French authorities were required to give their assistance to ensure Charlotte’s return to the United States in view of the object and purpose of the Hague Convention, unless there were objective reasons to believe that the child, and possibly her mother, might be the victims of “a flagrant denial of justice” there. The alleged risk that Ms Maumousseau would not be allowed to enter United States territory to present her case was purely hypothetical. She could have applied to the competent American court and had, indeed, been expressly invited to do so, and the American court which had given the father sole custody of the child and ordered her return had reserved the possibility of reviewing its decision at the request of either party. So at the time when the child’s return was ordered, then enforced, or when the Court of Cassation dismissed the appeal, the French courts had no reason to believe that the mother or child were likely to be the victims of “a flagrant denial of justice”. Subsequent to the child’s return, the French Central Authority for the purposes of the Hague Convention had remained alert to the applicants’ situation, in keeping with its obligations under that Convention. The French Central Authority had made an unsuccessful attempt to mediate with the child’s father, but was prepared to try again by putting Ms Maumousseau’s case to its American counterpart.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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