AS TO THE ADMISSIBILITY OF
Application No. 16586/90
by Elizabeth Lauren McCALLISTER and
Stephanie Michelle LORANCE
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 December 1993, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 April 1990 by
Elizabeth Lauren McCALLISTER and Stephanie Michelle LORANCE against the
Netherlands and registered on 30 April 1990 under file No. 16586/90;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, both nationals of the United States of America,
are a mother and her daughter. They were born in 1949 and 1982
respectively. The mother, who was a judge in the USA, resides in the
Netherlands and the daughter in the USA. Before the Commission the
first applicant is represented by Mr. A.P.L. Pinkster, a lawyer
practising in Amsterdam. The second applicant is represented by the
first applicant.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 3 October 1985 the District Court of Logan County, Oklahoma,
pronounced the divorce between the first applicant and her husband.
The Court awarded the custody of their daughter to the first applicant
and determined the father's visiting rights.
The first applicant states that after a while she became aware
that her ex-husband sexually abused their daughter and reported this
to the competent authorities. The American authorities instituted
inquiries but found no reason to terminate the father's visiting
rights. In March 1986, at the first applicant's and her mother's
request, the daughter was examined by a psychologist in Oklahoma who
reported to the first applicant's lawyer that sexual abuse by her
father was likely to have occurred and he advised that the father, for
the safety of his daughter, should only visit her in the presence of
"a reasonable adult". As the abuse continued according to the first
applicant, mother and daughter moved in October 1987 to Hawaii. Since
the first applicant's ex-husband would not leave them in peace, the
applicants subsequently left the United States for Europe.
On 10 November 1987 the District Court of Logan County appointed
the father as the second applicant's provisional guardian.
By judicial order of 28 January 1988 the District Court, without
having heard the first applicant, granted the ex-husband's request to
transfer the custody over the second applicant to him in view of the
first applicant's sudden departure from Oklahoma and her failure to
respect his visiting rights. According to the respondent Government,
the Court had carried out an investigation into the charges of incest
prior to this decision. This is contested by the applicants.
On 1 November 1989 the applicants were apprehended by the
Amsterdam Municipal Police (gemeentepolitie) as they were driving in
a rented car which had been reported missing by its owner, a Swiss car
rental company.
The first applicant was immediately brought before the Assistant
Public Prosecutor (Hulpofficier van Justitie), who on the same day
remanded her into police custody (inverzekeringstelling) as it had also
appeared that she carried two different passports bearing different
names and a forged driving licence and that she was in possession of
a stolen credit card.
The second applicant was handed over to staff of the Amsterdam
municipal Youth and Vice Squad (Jeugd- en Zedenpolitie), who brought
her to a foster home on 1 November 1989. The address of this place was
not disclosed to the first applicant. On the same day the first
applicant was allowed to contact her daughter and her mother by
telephone.
Also on 1 November 1989 the Amsterdam Police contacted the Swiss
authorities in respect of the rented car and the United States
Consulate in respect of the different passports the first applicant
carried and in order to verify her identity.
On 2 November 1989 the United States Consulate informed the
police that the passports had all been withdrawn. On the same day the
United States authorities requested the first applicant's provisional
arrest (voorlopige aanhouding) pending a formal request for extradition
on the basis of a warrant for her arrest on the suspicion of having
violated the Uniform Child Custody Act.
The first applicant's ex-husband was informed by an unknown
source that his ex-wife and their daughter had been apprehended in
Amsterdam. Thereupon he travelled to Amsterdam.
On 2 November 1989 the Public Prosecutor in charge of the case
had several telephone conversations with the then lawyer of the first
applicant and informed him that the first applicant's ex-husband was
expected to arrive in the Netherlands during the weekend of 4 and 5
November 1989. The Public Prosecutor also informed the first
applicant's lawyer that he saw no reason not to entrust the second
applicant to her legal guardian, unless the lawyer could advance
convincing arguments to the effect that this could be damaging to the
child. He further mentioned the possibility of injunction proceedings
(kort geding) and a provisional supervision order (voorlopige
ondertoezichtstelling) as a means for the first applicant to prevent
the second applicant from being handed over to her father.
On 3 November 1989 a further telephone conversation between the
Public Prosecutor and the first applicant's lawyer revealed that the
first applicant had not availed herself of the above remedies and that
it was unlikely that she would do so in the near future.
On 3 November 1989 the Investigating Judge (Rechter-Commissaris)
heard the first applicant, in the presence of her lawyer, in respect
of her detention pending extradition proceedings. On that occasion,
the Public Prosecutor informed the first applicant that he would have
no alternative but to hand the child over to her father if no documents
shedding a different light on the case were submitted or if she would
not take any steps such as instituting injunction proceedings. In the
course of this hearing it became known that the first applicant's ex-
husband was on his way to Amsterdam. The first applicant stated that
she was worried about her daughter and that she objected to her
daughter being handed over to her ex-husband who had been "convicted"
for having sexually abused her. The first applicant was informed that
her lawyer and the Public Prosecutor had agreed that the Public
Prosecutor would not hand the second applicant over to her father
without prior consultation with the first applicant's lawyer.
The ex-husband arrived in the Netherlands on or about 4 November
1989. On 6 November 1989, following contacts between the judicial
authorities and the Child Welfare Council (Raad voor de
Kinderbescherming), the second applicant was handed over to her father
after the Youth and Vice Squad and the Public Prosecutor had
ascertained that the child's reaction when meeting her father was
normal. The father took her immediately back with him to the United
States. The first applicant's lawyer was informed about this when they
had already boarded the airplane bound for the United States.
On 27 December 1989 the United States authorities submitted a
formal request for the first applicant's extradition.
By judicial order of 27 February 1990 the Regional Court
(Arrondissementsrechtbank) of Amsterdam refused to authorise the first
applicant's extradition in respect of the charge that she had
deliberately not respected her ex-husband's lawful visiting and custody
rights in an illegal, unlawful and criminal way and authorised her
extradition in respect of the remainder of the charges.
By decision of 26 March 1990 the Deputy Minister of Justice
(Staatssecretaris van Justitie) refused the extradition on humanitarian
grounds, considering that the first applicant had committed the acts
she was charged with in order to protect her daughter against a danger
to her well-being, which she had reasons to believe existed.
On 26 February 1992 the Dutch authorities granted the first
applicant a residence permit on compelling humanitarian grounds.
Meanwhile, the first applicant has instituted civil proceedings
against the State of the Netherlands in order to obtain compensation
for the fact that her daughter was handed over to the father. These
proceedings are still pending.
COMPLAINTS
1. The first applicant complains under Article 8 of the Convention
that her right to respect for her family life with her daughter has
unjustly been interfered with by handing her daughter over to her ex-
husband and by placing her daughter at an address unknown to the first
applicant without allowing contacts between them, whereas the
authorities knew or could know that for more than two years she had
raised and cared for her daughter.
2. The first applicant complains under Article 6 para. 1 of the
Convention that she did not receive a fair hearing in respect of the
decision by the Dutch authorities to hand her daughter over to her ex-
husband, of which she was only informed when her ex-husband and her
daughter were already on their way to the United States. She further
complains that the relevant documents and information concerning this
decision have not been brought to her attention and that, as far as she
knows, no procès-verbal or report has been drawn up on the factual
handing over of her daughter to her ex-husband.
3. The second applicant complains under Article 5 of the Convention
that her right to security of person has been violated by the Dutch
authorities by handing her over to her father, knowing that there were
strong indications that he had sexually abused her in the past.
4. The second applicant complains under Article 6 para. 1 of the
Convention that the Dutch authorities ignored her mother's request that
the second applicant be assisted by a lawyer in order to defend herself
properly against the intention to hand her over to her father. She
further complains that she has not been enabled to take notice of any
documents in relation to this transfer.
5. The second applicant complains under Article 8 of the Convention
that, in view of the fact that she lived for two years only with her
mother, the Dutch authorities unjustly interfered with her right to
respect for her family life, in particular having regard to the fact
that there was no legal basis for the Dutch authorities' interference
with her rights under Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 April 1990 and registered
on 14 May 1990.
On 8 January 1993 the Commission (Second Chamber) decided to
communicate the application to the respondent Government and invite
them to submit written observations on the admissibility and merits of
the application.
The Government's observations were received by letter dated 2
April 1993 and the applicants' observations were dated 6 June 1993.
On 8 September 1993 the applicants were granted legal aid.
THE LAW
1. The first applicant alleges violations of Articles 6 and 8
(Art. 6, 8) of the Convention in respect of the Dutch authorities'
decision to hand the second applicant over to her father.
However, the Commission is not required to decide whether or not
the facts alleged by the first applicant disclose any appearance of a
violation of the invoked provisions as, under Article 26 (Art. 26) of
the Convention, it may only deal with a matter after all domestic
remedies have been exhausted according to the generally recognised
rules of international law.
The respondent Government submit that the first applicant has not
exhausted domestic remedies as required by Article 26 (Art. 26) of the
Convention since she failed to institute injunction proceedings to
prevent her daughter from being handed over to her father, despite the
fact that the Public Prosecutor had mentioned this remedy to her
lawyer.
The first applicant submits that no time-limit had been fixed for
her lawyer to explicitly state whether he would be taking any steps.
She was informed about the agreement that the second applicant would
not be handed over to her father without prior consultation with the
first applicant's lawyer on 3 November 1989, i.e. a Friday. During the
weekend of 4/5 November 1989 her lawyer made "every effort to induce
the authorities to take some form of action" but the Juvenile Judge
referred the matter to the Child Welfare Council which did not see any
merit in the case.
The Commission notes that the Public Prosecutor mentioned to the
first applicant's lawyer on 2 November 1989 the possibility of
injunction proceedings and a provisional supervision order as a means
for preventing the second applicant from being handed over to her
father. It notes that the first applicant has failed to use the
domestic remedies available to her to prevent the situation she now
complains of before the Commission. Moreover, an examination of the
case does not disclose the existence of any special circumstances which
might have absolved the first applicant, according to the generally
recognised rules of international law, from having recourse to these
remedies. In particular, the first applicant has not shown that the
above remedies would have been ineffective nor did she present any
evidence in support of the allegation that her lawyer tried, without
success, to contact a judge over the weekend with a view to introducing
injunction proceedings.
It follows that the first applicant has not complied with the
condition as to the exhaustion of domestic remedies and her application
must in this respect be rejected under Article 27 para. 3 (Art. 27-3)
of the Convention.
2. The first applicant complains on behalf of the second applicant
that the latter's right to security of person has been violated by the
Dutch authorities by handing her over to her father, that the Dutch
authorities ignored her mother's explicit request that the second
applicant be assisted by a lawyer and that the Dutch authorities
unjustly interfered with her right to respect for her family life. She
relies on Articles 5, 6 and 8 (Art. 5, 6, 8) of the Convention.
However, the Commission notes that on 28 January 1988, i.e.
before the introduction of the present application, the District Court
of Logan granted the request of the second applicant's father to
transfer the custody over the second applicant to him. It follows that
the first applicant cannot as custodian represent the second applicant
in the present proceedings. Moreover, she has not shown that she is
otherwise authorised to represent her daughter with respect to this
application.
In these circumstances the Commission concludes that the first
applicant was not, on 24 April 1990, in such a position of authority
vis-à-vis the second applicant as to be able to introduce an
application on her daughter's behalf. It follows that this part of the
application cannot be regarded as being brought on behalf of the second
applicant, and is incompatible ratione personae with the provisions of
the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy