Information Note on the Court’s case-law No. 161
March 2013
Raw and Others v. France - 10131/11
Judgment 7.3.2013 [Section V]
Article 8
Article 8-1
Respect for family life
Failure to execute a judgment confirming an order to return underage children to their mother in the United Kingdom: violation
Facts – The first applicant was the mother of three children: D. and A., born of her relationship with a French national, and C. A. and C., who were still minors, were also applicants, while D. had reached his majority without expressing the wish to pursue the proceedings before the European Court. In March 2001 the first applicant, having separated from D. and A.’s father, left France with her children and settled in the United Kingdom. Following the couple’s divorce in June 2001, parental authority was granted jointly to both parents and it was decided that D. and A.’s habitual residence was to be with their mother in the United Kingdom. On 28 December 2008, at the end of a visit by the children to France, their father went to the police station to report that the children were upset and feared returning to the United Kingdom. On 2 January 2009 the family judge granted interim custody to the father. The British courts issued an order to return the children which, though upheld by the French authorities in a judgment of 16 April 2009, was never executed.
Law – Article 8: The authorities had waited until the question of the application of Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction had been finally decided before involving themselves fully and with speed in the return of D. and A. to their mother in Great Britain. That provision enabled the authorities of the requested State not to order the child’s return where there existed a serious risk that such a return would expose him or her to physical or psychological danger or otherwise place the child in an intolerable situation, or where the child opposed the return. In the instant case, the children’s best interests called for a certain level of prudence on the part of the authorities, given that tangible factors gave grounds for considering that their return could be detrimental to them.
The French authorities had initially used various methods to convince the children’s father to cooperate in organising their return to the United Kingdom. Several meetings had been organised in order to clarify the conditions in which the return decision would be executed. A meeting between the two children and their mother took place on 4 June 2009 in a neutral setting and in the presence of a social worker, their father, an educator and a psychologist whom they had already met. The mother and sons had been due to leave together for the United Kingdom that afternoon, but the attempt to re-establish contact failed on account of the children’s negative reaction. In consequence, the public prosecutor at the court of appeal decided that, as things stood, the children could not be returned to their mother. Nonetheless, the French Central Authority had pursued its efforts, in collaboration with the Central Authority for England and Wales. However, no measure likely to encourage compliance with the judgment of 16 April 2009 had been taken between the autumn of 2009 and 29 April 2010, when the French Central Authority unsuccessfully invited the father to make contact with it for the purpose of arranging a meeting, and it did not appear from the case file that the authorities had subsequently taken any significant steps.
The authorities’ decision to give priority to an approach based on cooperation and negotiation was not called into question, especially as Article 7 of the Hague Convention stressed the need to seek an amiable resolution. The decision by the public prosecutor at the court of appeal in June 2009 not to resort to forcible execution of the judgment of 16 April 2009, confirmed in April and August 2010, and the Prefect’s decision of August 2009 to refuse the use of police force were not open to criticism. As a general rule, the best interests of children argued against coercive measures being taken against them. However, coercive measures could have been taken against the father in order to encourage him to cooperate more fully. In this respect, the relevant French authorities had not taken any action on the complaint filed by the first applicant on 17 March 2009, alleging failure to return the children, at which point it could have been considered that the approach of cooperation and negotiation was failing to produce results.
The authorities had faced difficulties as a result of the attitude of the children themselves, who had clearly expressed their refusal to return to their mother in the United Kingdom. That attitude, however, had not necessarily been immutable, especially given that on 11 December 2010 A. had voluntarily left his father’s home to return to his mother. In addition, under the the Hague Convention and EC Regulation no. 2201/2003*, the children’s objections were not necessarily sufficient to prevent their return.
Having regard to the foregoing, and notwithstanding the margin of appreciation enjoyed by the respondent State in this area, the French authorities had not taken all of the measures that could reasonably have been demanded of them to facilitate execution of the judgment of 16 April 2009, ordering the return of the two children to the United Kingdom.
Conclusion: violation (five votes to two).
Article 41: EUR 5,000 jointly in respect of non-pecuniary damage.
* 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, repealing Regulation (EC) No 1347/2000.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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