ROCHE v. MALTA

FOURTH SECTION

DECISION

Applications nos. 42825/17 and 66857/17
Sharon Rose ROCHE against Malta
and Kaden Mario ROCHE against Malta

The European Court of Human Rights (Fourth Section), sitting on 12 June 2018 as a Committee composed of:

Georges Ravarani, President,
Vincent A. De Gaetano,
Marko Bošnjak, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having regard to the above applications lodged on 2 June 2017 and 5 September 2017 respectively,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Ms Sharon Rose Roche, has dual, Maltese and British, nationality. She was born in 1968 and lives in Nadur (Gozo).

2. The applicant in the second case, Mr Kaden Mario Roche, also has dual Maltese and British, nationality. He was born in 2011 and lives in Nadur (Gozo). The application on his behalf was lodged by his mother, the first applicant.

3. They were represented before the Court by Dr A. Formosa, Dr L. Formosa, lawyers practising in Victoria, Gozo and Dr T. Azzopardi, a lawyer practising in Valletta, Malta.

A. The circumstances of the case

4. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background to the case

5. A certain D.M.R., a British citizen, and the first applicant were married in Gozo, Malta, on 27 July 2007 having first met a year and a half before. At the time of their marriage both lived and worked in the United Kingdom (hereinafter, “the U.K.”), but frequently holidayed in Malta.

6. The first applicant owns a farmhouse in Xagħra, Gozo, and co‑owns with D.M.R. a house in Nadur, Gozo.

7. Their son, the second applicant, was born in Gozo on 1 October 2011.

8. On 15 August 2014 the first applicant flew to Malta on a one‑way ticket from Birmingham accompanied by the second applicant. She had previously informed her husband that she needed to go to Malta for some time to assist her mother who had to undergo a medical intervention. The first applicant kept postponing her return to the U.K. until early in September of the same year, when she informed her husband via e‑mail that she would not be returning, that she would be seeking an end to the marriage and that she intended to live in Gozo.

9. The first applicant subsequently initiated mediation proceedings and on 12 November 2014 she was granted temporary sole custody of the second applicant, later confirmed by a decree of 3 March 2015.

10. D.M.R. had in the meantime already requested the Central Authority in the U.K. to ask the corresponding authority in Malta to proceed with an application in terms of Article 8 of the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter, “the Hague Convention”).

2. The Hague Convention proceedings (10/2015)

11. On 2 February 2015 the Director for Social Welfare Standards (Malta), representing the Central Authority in Malta for the purposes of the Hague Convention (hereinafter, “the Director”) lodged an application (in accordance with the Child Abduction and Custody Act, Chapter 410 of the Laws of Malta, in terms of Council Regulation no. 2201/2003 – see paragraph 74 below) before the Court of Magistrates (Gozo), Superior Jurisdiction (Family Section), asking the court to return the minor child to the U.K. The court was further asked to make the necessary arrangements for the return of the minor and to order that he be accompanied by the police or other relevant entity should the respondent fail to co-operate.

12. The first applicant objected to the request, noting that the requisites of Article 27 of Chapter 410 of the Laws of Malta, and of Council Regulation no. 2201/2003 did not subsist. In particular she noted that i) the habitual residence of the child was not the U.K.; ii) there had been no wrongful detention or removal since the father had had no custody rights over the minor child these having been vested in the first applicant by the Maltese courts in proceedings in which D.M.R. was participating; iii) D.M.R. started these proceedings in retaliation; iv) there was a grave risk of psychological harm if the child was returned; and v) that return would constitute a breach of the child’s right to private and family life.

13. On 27 March 2015 the court accepted the first applicant’s request to appoint a counselling psychologist to assess the minor child for the purposes of Article 13(b) of the Hague Convention.

14. The court heard evidence from both parents and from the witnesses called by the first applicant, and took also in account affidavits, ex-parte reports and other documents produced by the parties. It also examined the court appointed expert’s report, confirmed on oath, and the written submissions of the parties represented by counsel.

15. By a decree of 9 June 2015, confirmed on 10 July 2015, the court dismissed the first applicant’s (respondent in the case) conventional complaint (under Article 8) as being premature.

(a) First-instance judgment

16. By a judgment of 24 July 2015, the court rejected the request for return.

17. In relation to the respondent’s plea concerning the (i) habitual residence of the minor child not being the U.K., the court noted that although both the [Hague] Convention and the [EC] Regulation made this one of the requirements for a return of the child, neither provided a definition of “habitual residence” for the purpose of return proceedings. On being called in to define this concept, the European Court of Justice noted that in the absence of any express reference to the law of the Member States, the term ‘habitual residence’ was an autonomous concept. If national law were to define that concept, the free movement of judgments would be hindered as some Member States might have a definition of ‘habitual residence’ which was too broad, whilst others might choose one which was too narrow, leading to situations where several courts of different Member States claimed jurisdiction or, conversely, where no court was willing to assume it. It held that the concept of ‘habitual residence’ should be shaped in light of the best interests of the child.

18. In the present case, the court held that the habitual residence of the child had to be established with regard to the situation as existing prior to the removal of the child from the U.K. and not afterwards. The evidence produced showed that the couple was living in Birmingham, U.K., in a house owned by D.M.R. even before he married the first applicant. Both spouses had a full‑time job in the area. D.M.R. had two other children (thirteen year old twins) from a previous relationship, who lived with their mother, but visited him for sleepovers on alternate weekends. The first applicant’s son was born in Malta, as his mother felt that she would get better treatment there. However, soon after the birth she returned to the U.K. and the child was brought up there. When he was only four months old, the child was sent to a nursery, to be looked after, while both parents were at work. Up until 15 August 2015, the couple only visited Malta, together with their child, for short visits. These circumstances left no doubt as to the fact that the U.K. was to be considered the habitual residence of the Roche family.

19. As to her plea concerning (ii) custody rights, the court noted that under Article 2(1) of the Children Act of the U.K. (1989) “where a child’s father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child.” According to Article 2.11(a) of the [EC] Regulation, a removal or retention is considered wrongful where “it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention.” Since there was no evidence of an acquired judgment or agreement with regards to the rights of custody, the present case had to be considered governed by the law of England above-indicated. As to the temporary measure determining responsibility for the child while he was still on the island [Malta], during mediation proceedings before the local courts, the court recalled that under Article 17 of the [Hague] Convention the sole fact that a decision relating to custody had been given in, or is entitled to recognition in, the requested State was not a ground for refusing to return a child. The position had also been confirmed in a similar case before the Civil Court (Family Section).

20. As to the plea regarding (iii) the consent for removal and acquiescence in the retention of the child – on the basis that the father never objected to his wife’s visit to Gozo on 15 August 2015 and her taking their child with her – the court noted that this was the case; nonetheless the father was taken completely by surprise when he learned that his wife was not returning to the U.K. and intended to stay in Gozo with their child. This clearly showed that his consent was only for a temporary visit to the island so that his wife could take care of her mother during her convalescence. The consent was therefore not clear and unequivocal as required by international jurisprudence.

21. The court noted that the first applicant argued that her husband then acquiesced to the retention of the child on these islands, as he only requested the present proceedings in December of 2014, when his child had been in Gozo since August; and that he had accepted the jurisdiction of the Maltese courts when he participated in mediation proceedings initiated by the first applicant and even visited his son, with his wife’s approval, while on the island. In this connection the court noted that the fact that the father was trying to reach an amicable solution to this problem did not amount to acquiescence. Furthermore, it was only natural for him to want to see his son, and his contacts with his wife for such a purpose should not be interpreted as amounting to acquiescence.

22. As to the plea concerning (iv) the grave risk or intolerable situation, defence under Article 13(b) of the [Hague] Convention, the court referred to Article 12 and 13 of the [Hague] Convention, applicable to the present situation, as the child had been less than a year on the island, and to Baxter v. Baxter [15 September 2005] where the American Court of Appeal explained that: “to meet her burden under the Article 13(b) exception, the respondent must establish that the alleged physical or psychological harm is a great deal more than minimal”. Indeed, the harm must be “something greater than would normally be expected on taking a child away from one parent and passing him to another”. In the present case to substantiate this defence, the first applicant had exhibited two ex‑parte reports of psychologists who examined the situation from information supplied by the first applicant and after visiting the child, who were of the opinion that the child should not be returned. The court‑appointed expert agreed with these opinions. The court noted that the experts concurred in the view that the child would suffer psychological harm if he were to be separated from his mother and returned to the U.K. to live with his father. The first applicant had made it abundantly clear that she was unwilling to go back to the U.K. where she would be on her own, had no job and had nowhere to go. All her immediate family resided in Malta, she had settled in her own home in Gozo, and had a good job and could even work from home, to be in a better position to take care of her son. On the other hand D.M.R. had a full time job and it was not clear who would look after the minor. Further, the most worrying aspect of returning the child to live with his father concerned the latter’s alcohol abuse. Quite a few episodes had been recounted of D.M.R. not having full control of his senses when he was under the influence of alcohol, and at times he had even been somewhat violent, though no evidence had been produced of the father ever physically harming his son. These allegations had been very weakly rebutted. Also worrying was the medical condition which D.M.R. was said to suffer from, especially if he would be living on his own with the child.

23. Citing Article 11(4) of the Brussels Regulation the court noted that no proof had been adduced that adequate arrangements had been made to secure the protection of the child after his return by the competent authorities in England or by the father himself.

24. Referring to Article 13 [of the Hague Convention] the court noted that a three year old child could not express his views on the matter. However, sufficient evidence had been produced to show that he was happily settled in Malta, was attached to his mother and her immediate family and had made good progress at school.

(b) Appeal judgment

25. Both parties appealed. The first applicant claimed that the son’s habitual residence was Malta; that she had been granted sole custody of the child by the Maltese courts; that the father had consented and acquiesced to the fact that the child would remain living in Malta. D.M.R. claimed that no clear or convincing proof had been made to support that return would result in grave and serious harm to the child.

26. By a judgment of 30 October 2015 the Court of Appeal rejected the first applicant’s appeal and reversed the first-instance judgment.

27. Referring to the elements raised by the first applicant to prove residence and relying on domestic case-law which referred to British jurisprudence, it considered that none of those elements sufficed to show that the child’s habitual residence was Malta. Indeed the parents lived in England for several years and they worked there – during which time the child was at a nursery in England. They had thus decided to live in England “for settled purposes as part of the regular order of their life”. In particular the fact that the first applicant had family and property in Gozo, as well as that she had given birth to her son there, could not alter that conclusion. The Court of Appeal confirmed the first-instance reasoning that the fact that the Maltese courts had given the first applicant temporary custody did not constitute an obstacle to returning the child in accordance with Article 17 of the Hague Convention.

28. As to the father’s acquiescence, the court confirmed that on 1 September 2014 when the first applicant informed D.M.R. that she would not return he objected “in a clear and unequivocal manner” and insisted on return, so much so that he lodged a request to this effect with the relevant central authority. In the Court of Appeal’s view there was no acquiescence on the part of the father.

29. The court noted that in line with the provisions of the Hague Convention, the point of departure was that the return of the minor to his habitual residence was in his best interest, save in exceptional circumstances stipulated in its Article 13. Referring to legal literature on the matter as well as British and domestic case-law and case-law of the European Court of Human Rights (ECtHR), it reaffirmed that the idea of Hague Convention proceedings was to restore the status quo ante and of leaving the issues of custody and parental authority to be determined by the courts that had jurisdiction in the place of the child’s habitual residence in accordance with its Article 19, and only grave and impelling reasons could justify a decision not to return. Nevertheless, following the judgment of Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, ECHR 2010), it was for the courts to make an in-depth examination of the entire family situation. The Court of Appeal noted that in the present case, the first-instance court had relied solely on the expert reports, and it was clear that the ex‑parte experts had understood their mission as being one intended to examine care and custody and not one establishing whether the minor risked serious harm if returned. Those experts had also relied on the first applicant’s allegations, but D.M.R. had strongly denied them during the proceedings. As to the court‑appointed expert, she had based her conclusion on a two-hour session with the mother and child, but had never heard or attempted to hear the father. Furthermore, her testimony was entirely based on elements given to her by the mother. It also appeared from her testimony that she understood her role as being one where she had to determine whether the child was happy in Gozo. She had further confirmed that while there was “a very clear and strong bond”, between mother and child, she had been unable to observe the bond between the father and the son or their relationship. She stated that on being shown photos of the father, the child had shown no signs of discomfort. Thus, in the court’s view it had not been shown that clear and compelling evidence of grave risk of harm would ensue.

30. According to the Court of Appeal it had been the mother who illegally created a situation of anxiety for the child by removing the child from the U.K., to his detriment, and such a de facto situation could not be endorsed by refusing to return the child. Whether the child would be happier in Gozo than in the U.K. was a matter of care and custody; in the present case, the exceptions provided by Article 13(b) did not apply, and thus the law required that the child be returned. This did not mean that the mother could not move back to England with the child.

31. It was the child’s interests which had to be predominant and not those of the mother. It was for the U.K. courts to decide where the child should reside. Indeed it would have been in the child’s best interests if the first applicant had sought to request custody before the U.K. courts, before creating the illegal situation which could have a negative impact on the child. Furthermore, the U.K. had adequate support services which the mother could have sought if in need.

32. Noting that the first court had also seemed to focus more on care and custody, as opposed to the Hague Convention criteria, the Court of Appeal reversed the first-instance judgment and ordered that the Maltese central authority make practical arrangements for the return of the child. It further ordered the first applicant to comply with such arrangements, in default of which the arrangements were to be enforced by a court officer with the assistance of the police and social workers.

(c) Retrial

33. A request for retrial of the Hague Convention proceedings lodged by the first applicant was rejected by the Court of Appeal on 17 May 2016.

(d) Request for a stay of enforcement of the appeal judgment of 30 October 2015

34. Pending the above mentioned retrial request, the first applicant filed a collateral application asking the court to stay the execution of the appeal judgment of 30 October 2015 (see paragraphs 26‑32 above). The Director objected to the stay.

35. By a decision of 18 February 2016, the court noted that as the applicant had instituted constitutional redress proceedings on 11 November 2015 (see paragraph 37 below), the agreement of 17 July 2015 (see paragraph 37 below) remained valid and the child could not be returned pending a decision in those proceedings.

36. Thus, the court found that the claimant’s request was premature.

3. First set of constitutional redress proceedings (59/2015)

37. Pending the above Hague Convention proceedings, the first applicant lodged constitutional proceedings. On 17 July 2015, in the course of the constitutional redress proceedings she and the representative of the relevant department signed an agreement to the effect that the applicant would withdraw the constitutional redress application, upon a guarantee that in the event of a negative appeal decision in the Hague Convention proceedings, within fifteen days of that decision, she would be able to lodge a new constitutional redress application and the child would not be returned until the determination of such further constitutional redress proceedings.

38. In consequence of this agreement the first set of constitutional redress proceedings was withdrawn (ċeduta) on the same day.

4. Second set of constitutional redress proceedings (81/2015)

(a) First-instance

39. On 11 November 2015 the first applicant instituted constitutional redress proceedings in her own name, and later (following an authorisation of 13 January 2016) also in the name of her son, after the acceptance of her request to act as curator ad litem of her minor child. She complained that the judgment of the Court of Appeal of 30 October 2015 (see paragraphs 26‑32 above) was in breach of Articles 6 and 8 of the European Convention on Human Rights (hereinafter, “the Convention”). She claimed that that judgment was not in the best interests of the child and that the child had not been heard by the court, nor was a child advocate nominated, as required by domestic law. She argued that if that decision were to be enforced, it would be in breach of Article 8 since she would be denied her right to exercise care and custody and to have a family life with her child; moreover, her son would be denied her care and custody as well as the environment in which he had been developing. Under Article 6 she claimed that her son had not had a fair trial, and that both should be awarded compensation separately.

40. The first applicant further asked the court to stay the execution of the return measure until these proceedings were decided.

41. In connection with the latter request the respondent replied that they were willing to stay the execution only if the court would hear the case with urgency.

42. On 11 December 2015 and 20 January 2016 the first applicant requested the court to appoint a psychiatric expert and a child advocate to represent her minor child, respectively.

43. On 25 January 2016 D.M.R. was allowed to intervene as a third party in the proceedings.

44. By a judgment of 27 July 2016, after having heard the witnesses and counsel, as well as having regard to the documents and submissions presented, the Civil Court (First Hall) in its constitutional competence, rejected the complaints and found that there had been no breach of the first applicant’s or her son’s rights. It noted that its task was not to decide on the care and custody of the minor or where he should live, nor was it its task to decide the matter decided by the Court of Appeal, as constitutional proceedings where not a further appeal.

45. Referring to Article 13 of the Hague Convention, it noted that the child was born in October 2011; therefore, at the time of the constitutional proceedings he was less than five years old, and at the time of the Court of Appeal’s judgment he was only four years old. In line with ECtHR case‑law his tender age justified the court’s decision not to hear him. As to the lack of a child advocate, the court noted that in such proceedings it was generally considered that the interests of the minor were well protected by the parent against whom such proceedings were lodged. In the present case it did not appear that his interests were not pursued by the mother and her legal team. It had further to be noted that such proceedings concerned mainly the matter of jurisdiction. Further, given the limited scope of a child advocate in Maltese law, in the present case, the aims it pursued had been attained by means of the expert opinions. Moreover, all throughout the proceedings the court had not been asked to appoint a child advocate. Lastly, the court noted that all the evidence (which it re-examined) had been collected at first‑instance and only in exceptional circumstances the Court of Appeal would re‑open this stage of the proceedings. There was therefore no violation of Article 6.

46. As to Article 8, it noted that the Court of Appeal’s decision did not mean that the first applicant would be separated from her child. Not only could she join him in the U.K. (the child had shown a good sense of adaptability) but more precisely the Court of Appeal had only decided the return of the child to the U.K. – the jurisdiction which should decide on the care and custody. In the court’s view the extremes of the case of Neulinger and Shuruk, cited above, were not present in the instant case.

(b) Appeal

47. The first applicant, in her own name and on behalf of her minor child, appealed claiming that the first‑instance judgment should be declared null, the court having failed to reply to her requests of 11 December 2015 and 20 January 2016 respectively (see paragraph 42 above); and secondly noting that there were a number of failings by that court, namely:

(i) from the judgment it appeared that the court had not understood the scope of the case;

(ii) it had not appointed a child advocate, the minor was thus not represented by counsel, nor was he heard by the court;

(iii) it had failed to make an assessment under Article 8 on the evidence before it;

(iv) it had failed to assess the issues before it and assessed other issues instead;

(v) its judgment would create an unnecessary separation given that the court failed to take into consideration the fact that the issue of care and custody was being dealt with by the Maltese courts;

(vi) it had failed to give consideration to the case of Neulinger and Shuruk, cited above, and more recent case‑law of the ECtHR;

(vii) it had failed to give consideration to the case of B. v. Belgium, (no. 4320/11, 10 July 2012) in relation to expert psychological reports;

(viii) it had failed to assess the case on the basis of all the relevant proof and jurisprudence;

(ix) it (as well as the Court of Appeal) had failed to verify whether there were adequate practical arrangements for the return of the child.

48. By a judgment of 16 March 2017 the Constitutional Court rejected the appeal and confirmed the first-instance judgment. It also noted that the first applicant had failed to indicate which pleas concerned her own rights and which those of her son.

As to her claim of nullity it considered that the case concerned the decision of the Court of Appeal; it was thus the situation then which had to be examined, and in any event the failure to decree on those two requests could not lead to the nullity of the judgment. Further the court had decreed on 27 July 2016 that all her requests had been rejected, thus it had decided also her request to appoint an expert. As to the other request, the fact that, later on, the first applicant was authorised to act on behalf of her son rendered useless the appointment of a child advocate given that by then he was represented by counsel; lastly the first applicant had not reiterated her request in any of her further submissions.

49. As to the various heads of her second plea, the Constitutional Court considered that it was obvious from the judgment that the lower court had understood its role, irrespective of any more general considerations. As to the failure to appoint a child advocate during the Hague Convention proceedings the Constitutional Court noted that in those proceedings the first applicant had never argued that such a failure would breach the child’s human rights ‑ nor was it for the court to raise it of its own motion. The Court of Appeal had carefully examined the evidence and the interests of the child, without needing to hear the child himself. It correctly set aside considerations related to care and custody which were not the subject of those proceedings, as did the Civil Court (First Hall) in its constitutional competence.

50. On the merits again the first applicant’s arguments related to care and custody as opposed to the issue of return to the country from where the child had been removed. The first applicant did not show in what way her Article 8 rights were breached while she had herself brought about the situation complained of. The lower courts had considered the legality and the effects of the return order, its legitimate aim and whether it was proportionate in the light of the best interests of the child as required by national and international law and case‑law. Indeed the latter provided that the harm referred to in Article 13(b) of the Hague Convention had to be proved, and more particular that it could not arise from the separation from the parent who was responsible for the wrongful removal or retention. Further, the return of the child did not amount to an inevitable and permanent separation; it solely sought to return to the status quo ante.

51. Furthermore, the first applicant was wrong to consider that the question of jurisdiction on care and custody was settled, and in any event the courts examining (or reviewing) the return were not bound by any determination on the matter.

52. As to the weight given to the expert reports, those reports were focused on matters which were not the determining factors to make a return decision. Lastly, the Court of Appeal had also given indications as to the arrangements for the return of the child, meaning that it had considered this practical aspect and was satisfied. The same was also confirmed by the third party’s testimony; it thus appeared that there was no fear that such arrangements were not satisfactory.

5. Separation and care and custody proceedings (12/2015)

53. By a first‑instance judgment of 21 February 2017, the Court of Magistrates (Gozo), Superior Jurisdiction (Family Section), inter alia, pronounced the separation, a mensa et thoro, between the parties for reasons imputable solely to D.M.R., mainly moral and physical abuse on wife and child also as a result of his alcohol problem. It also awarded full care and custody exclusively to the first applicant and detailed access rights for the father.

54. Relying on the Court of Appeal judgment of 30 October 2015 (see paragraphs 26‑32 above), the court noted that D.M.R. had accepted the jurisdiction of the Maltese courts concerning the care and custody of the minor. It thus rejected a request to stay the proceedings pending a final decision on return. After having heard all the parties and the relevant evidence, the court considered that the best decision concerning the child was that he lived with his mother surrounded by her extended family that helped him feel loved and welcome. The court was also convinced that D.M.R. had neither the time (due to his heavy work commitments and his habit of visiting the pub on various nights of the week) nor the will to be granted, and exercise, full care and custody. Indeed in his submissions he did not insist on full care, but on ample access. Moreover, the court could not exclude incidents where the father could be violent with the child as had happened with his other daughters.

55. An appeal against this judgment was lodged by D.M.R. and was, in May 2018, still pending.

6. Ordinary Proceedings 35/2016

56. On an unspecified date the applicant had instituted a further set of proceedings asking the court to declare that the Hague Convention proceedings were unlawful and null and therefore without effect. She claimed that the fact that the jurisdiction of the courts where the minor had been “illegally retained” had been accepted by both parents had rendered the return proceedings superfluous.

(a) Injunction no. 16/2016 in case 35/2016

57. Pending these proceedings and the second set of constitutional redress proceedings, the first applicant lodged a further request to stay the second applicant’s return.

58. By a decision of 24 May 2016 the Court of Magistrates (Gozo) in its superior jurisdiction (General Section) granted the first applicant’s request and issued an injunction staying the second applicant’s return.

(b) Proceedings on the merits in case 35/2016

59. By a judgment of 2 December 2016, the Court of Magistrates (Gozo) in its superior jurisdiction (General Section) rejected the first applicant’s claim considering that her arguments raised in various jurisdictions had been already subject to a decision and were thus res judicata. Indeed the applicant was only trying to reverse that judgment expecting the court to act as a third instance court.

60. The first applicant appealed this decision.

61. At the same time she also requested the recusal of the judges and, following their refusal, she filed a further set of constitutional proceedings (third set) complaining about the impartiality of the judges delivering this decision – these proceedings were in May 2018 still pending at first‑instance. During the appeal proceedings (before the Court of Appeal in its ordinary jurisdiction) the applicant also filed two further applications, which were refused. In consequence in February 2018 the applicant instituted a further set of constitutional redress proceedings (fifth set) complaining under Article 6. These proceedings were in May 2018 still pending at first‑instance.

62. By a judgment of 18 April 2018, the Court of Appeal confirmed the judgment of 2 December 2016 (see paragraph 59 above).

63. As a result of this judgment, injunction no. 16/2016, granted on 26 May 2016 by the Court of Magistrates (Gozo) (see paragraph 58 above) fell through automatically.

7. Judicial review proceedings (38/2017)

64. On an unspecified date the first applicant instituted judicial review proceedings against the Director. She claimed, inter alia, that the latter had acted unlawfully and contrary to the principles of natural justice and procedural correctness and that he abused his power and abdicated his duties by failing to consider that the father of the child had submitted to the jurisdiction of the Maltese courts and by disregarding the judgment granting the first applicant care and custody of the minor.

(a) Merits

65. These proceedings were still pending at first‑instance in May 2018.

(b) Injunction no. 16/2017 (in case 38/2017)

66. Pending the above judicial review proceedings the first applicant also requested the Court of Magistrates (Gozo) in its superior jurisdiction (General Section) to issue a prohibitory injunction to stay the return of the child and prohibit the making of any arrangements for his return. She referred to the fact that she had lodged constitutional redress proceedings challenging the decision of the Court of Appeal of 30 October 2015, as well as proceedings before the ECtHR.

67. By an interim decision of 14 July 2017, the court, bearing in mind that the burden of proof for the issuance of a warrant of prohibitory injunction was a prima facie right, acceded to her request.

68. The court reiterated that the interests of the child were paramount. It noted the fact that the child had not yet been returned a year and nine months after the judgment ordering his return – this was a substantial period of time capable of changing the situation and warranting different measures. It further noted the first-instance decision (against which an appeal was still pending) granting the mother care and custody. It further considered that the request made by the father concerning the return of the child had not been aimed at the best interest of the child, especially given the limited participation of the father in the domestic proceedings concerning the matter, namely written submissions. Furthermore, no proof had been submitted concerning any special arrangements put in place to safeguard the best interests of the child, if he had to be returned.

69. On 2 May 2018 the Central Authority filed an application requesting the revocation of this injunction, it argued inter alia that under Maltese law and the relevant jurisprudence a prohibitory injunction could not be used to stop the enforcement of a final judgment which was res judicata.

70. The first applicant opposed the application. In June 2018 a decision had not yet been delivered, the case being adjourned for decree to 21 June 2018.

8. Fourth set of constitutional redress proceedings (36/2017)

71. In the meantime on 19 May 2017 the first applicant in her name and on behalf of the second applicant filed a fresh set of constitutional redress proceedings complaining about the judgment of the Court of Appeal of 30 October 2015 (see paragraphs 26‑32 above). She claimed that returning the child in the current circumstances would be in breach of Articles 8 and 3 of the Convention. She also complained under Article 8 that the Constitutional Court had erred in its judgment of 16 March 2017 (see paragraphs 48‑52 above), as it had not taken into account all that had happened after the judgment of 30 October 2015 ordering the return. She also complained under Article 6 that the latter judgment was in contrast with the judgment of 21 February 2017 (see paragraphs 53‑54 above), and thus in breach of the principle of legal certainty.

72. She highlighted that her claim was not res judicata as further happenings had occurred after the Constitutional Court judgment of 16 March 2017 (see paragraphs 48‑52 above). Notably, further time had passed, the child was still in Malta and had amply settled there. Furthermore, the issue of care and custody had in the meantime been decided on 21 February 2017 (see paragraphs 53‑54 above). Relying on the Court’s case‑law she insisted that it was for the court to decide on what was best for the minor at the time of the enforcement of the return decision, and noted that uprooting the child again from his habitual environment would probably have serious consequences for him.

73. The first applicant asked the court to allow her to represent her child in the proceedings. The court rejected the request and appointed a child advocate to represent the child.

(a) Merits

74. The case on the merits was in May 2018 adjourned for 6 July 2018.

(b) Interim request (447/2018 in proceedings 36/2017)

75. In the meantime, on 23 March 2018 the first applicant filed an application asking the court to stay the return of the second applicant and to prohibit the Central Authority from making any practical arrangements for the return of the child. She noted that in proceedings pending before the constitutional jurisdictions (see paragraph 71 above) as well as before the ECtHR it was being argued that the return of the child would be in breach of the applicants’ rights. The defendants filed submissions on 5 April 2018 arguing inter alia that under Maltese law and the relevant jurisprudence a prohibitory injunction could not be used to stop the enforcement of a final judgment which was res judicata and that the applicants’ action amounted to an abuse of process with the aim of avoiding the execution of a final judgment. They also noted that an identical warrant was already in force (see paragraph 67 above). D.M.R., acting as a third party, also made submissions on the line of those made by the authority, and in favour of the execution of the return decision without any further delay.

76. Oral submissions were heard on 13 April 2018 whereby the applicants requested that the decision be suspended pending other decisions on the matter being decided in different courts. The court accepted the latter request and the case was adjourned to 27 April 2018.

77. On 21 May 2018 the court rejected the applicants request to stay the enforcement of the return decision. It emphasized that its decision was without prejudice to the merits of the case to be decided by the constitutional jurisdictions. The court considered that the applicants had a prima facie right to lodge such a request. However, the State authorities had not confirmed, in open court as required by law, that they realistically intended to proceed with the return. Indeed, there were two other prohibitory injunctions which had been issued on the matter, thus the authorities were in any event precluded from executing the return decision. The court noted that the first applicant had refused to return with the second applicant to the U.K. in 2014, and thus to date it was more the defendants who had suffered prejudice and not the applicants. More importantly, the court considered that it could not issue a warrant of prohibitory injunction against a final judgment, but that the applicants could pursue other remedies intended for the purposes they were after.

B. Relevant domestic law

78. Article 27 of the Child Abduction and Custody Act, Chapter 410 of the Laws of Malta, in so far as relevant reads as follows:

“(1) Where -

(a) an order is made for the return of a child under Part I of this Act; ...

any custody order inconsistent with such order or decision relating to him shall cease to have effect.”

79. The Civil Court (Family Section), The First Hall of the Civil Court and The Court of Magistrates (Gozo) (Superior Jurisdiction) (Family Section) Regulations, Subsidiary Legislation 12.20, in so far as relevant, reads as follows:

Regulation 3

“(1) The Minister shall in accordance with article 89 of the Code of Organization and Civil Procedure appoint panels of experts as follows: ...

(b) a panel of experts in family law (hereinafter in these regulations called children’s advocates) being persons in possession of the warrant to practice as advocates.

Regulation 12

“The judge or magistrate, as the case may be, and any judicial assistant who may be assigned to the case under the direction of the Court, shall give all such guidance and directives as they may think fit for the better management of the case.”

C. International Law

80. The relevant articles of the Hague Convention, in so far as relevant, are set out in X v. Latvia ([GC], no. 27853/09, § 34, ECHR 2013).

81. Other relevant international material can be found in N.Ts. and Others v. Georgia (no. 71776/12, §§ 40-44, 2 February 2016).

D. European Union Law

82. The relevant articles of Council Regulation (EC) 2201/2003 of 17 November 2003, known as Brussels II bis, are set out in K.J. v. Poland, (no. 30813/14, § 39, 1 March 2016).

COMPLAINTS

83. The applicants complain under Article 8 that the domestic courts failed to conduct an in depth examination of the entire family situation and of all relevant factors and failed to assess all relevant interests in line with the Court’s case‑law.

84. The applicants also complain under Article 6 of the Convention that the domestic court failed to consider the views of the child transmitted through the psychologist reports and to appoint a child advocate for the second applicant, contrary to domestic law, at various instances and jurisdictions.

THE LAW

A. Joinder of the Applications

85. Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

B. Article 8 of the Convention

86. The applicants complained under Articles 6 and 8 of the Convention (see paragraph 83‑84 above).

87. The Court reiterates that it is the master of the characterisation to be given in law to the facts of a case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114-115, ECHR 2018). The Court further notes that while Article 6 affords a procedural safeguard, namely the “right to court” in the determination of one’s “civil rights and obligations”, Article 8 serves the wider purpose of ensuring proper respect for, inter alia, family life. In this light, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8 (see Iosub Caras v. Romania, no. 7198/04, § 48, 27 July 2006; and Diamante and Pelliccioni v. San Marino, no. 32250/08, § 150, 27 September 2011).

88. In view of the close link between the complaints under Articles 6 § 1 and 8, the Court shall examine the application solely under Article 8, which also covers the complaints under Article 6 § 1 (see, particularly in the context of the Hague Convention proceedings, Karrer v. Romania, no. 16965/10, § 26, 21 February 2012). Article 8 of the Convention reads as follows:

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

2. There shall be no interference by a public authority with the exercise of this right 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.”

1. General principles

89. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in an effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Ignaccolo‑Zenide v. Romania, no. 31679/96, § 94, ECHR 2000‑I).

90. The Court reiterates that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights. The Court considers that, in the area of international child abduction, the positive obligations that Article 8 of the Convention lays on the Contracting must be interpreted in the light of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (see, among others, Ignaccolo‑Zenide, cited above, § 95) and the Convention on the Rights of the Child of 20 November 1989 (see, for example, Maire v. Portugal, no. 48206/99, § 72, ECHR 2003‑VII), which attach paramount importance to the best interests of the child (see Raw and Others v. France, no. 10131/11, § 82, 7 March 2013; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 49‑56 and 137, ECHR 2010; and X v. Latvia, [GC], no. 27853/09, §§ 93 and 96, ECHR 2013).

91. As regards the Hague Convention proceedings, the Court has emphasised that Article 8 of the Convention requires that domestic courts carry out a careful analysis of the matter and make a ruling giving specific and sufficiently detailed reasons in the light of the circumstances of the case. This would enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it (see Vilenchik v. Ukraine, no. 21267/14, § 47, 3 October 2017).

92. The Court considers that a harmonious interpretation of the European Convention and the Hague Convention can be achieved provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the Hague Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see X v. Latvia, cited above, § 106).

93. Requests concerning the return of children in the context of child abduction cases call by their very nature for a speedy decision (see, mutatis mutandis, M.A. v. Austria, no. 4097/13, § 88, 15 January 2015; and Mansour v. Slovakia, no. 60399/15, § 56, 21 November 2017). Furthermore, in cases of this kind, the adequacy of a measure is to be judged by the swiftness of its implementation (see Oller Kamińska v. Poland, no. 28481/12, § 85, 18 January 2018, and the case-law cited therein).

94. In addition, the Court notes that the present case concerns the return of a child from one EU member State to another. In relations between EU member States the rules on child abduction contained in the Brussels II bis Regulation supplement those already laid down in the Hague Convention. Both instruments are based on the philosophy that in all decisions concerning children, their best interests must be paramount (see X v. Latvia, cited above, §§ 96-97, and M.A. v. Austria, cited above, §§ 112‑114).

95. It follows from Article 8 that a child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child’s best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences. For that reason, those best interests must be assessed in each individual case. That task is primarily one for the domestic authorities, which often have the benefit of direct contact with the persons concerned. To that end they enjoy a certain margin of appreciation, which remains subject, however, to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see Neulinger and Shuruk, cited above, § 138).

96. Lastly, the Court notes that, whilst Article 8 contains no explicit procedural requirements, the applicant must be involved in the decision‑making process, seen as a whole, to a degree sufficient to provide him or her with the requisite protection of his interests, as safeguarded by that Article (see Fernández Martínez v. Spain [GC], no. 56030/07, § 147, ECHR 2014 (extracts); Z.J. v. Lithuania, no. 60092/12, § 100, 29 April 2014; Elsholz v. Germany [GC], no. 25735/94, § 52, ECHR 2000‑VIII; and W. v. the United Kingdom, 8 July 1987, §64, Series A no. 121). In the case of children, the above principle is exercised through their right to be consulted and heard (see M. and M. v. Croatia, no. 10161/13, §§ 180‑181, 3 September 2015). The Court has already held that as children mature and, with the passage of time, become able to formulate their own opinions on their contact with their parents, for instance, the courts should give due weight to their views and feelings as well as to their right to respect for their private life (see Płaza v. Poland, no. 18830/07, § 71, 25 January 2011). The same principles are enshrined in Article 12 of the CRC and in other relevant international instruments (see paragraph 81 above, and N.Ts. and Others v. Georgia, no. 71776/12, § 72, 2 February 2016, and the references therein). For the Court, it is generally necessary to examine whether the children were otherwise heard by the judicial authorities. In this connection the Court points out, having regard to Article 12 of the CRC (and in particular point 32 of General Comment no. 12 of the Committee on the Rights of the Child) (see paragraph 81 above), that in any judicial or administrative proceedings affecting children’s rights under Article 8 of the Convention, children capable of forming their own views should be sufficiently involved in the decision‑making process and be given the opportunity to be heard and thus to express their views (see also M. and M. v. Croatia., cited above, § 181). The same principle is enshrined in the Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice, which provide for the right of children to be heard and to express their views in all matters that affect them (see N.Ts. and Others v. Georgia, cited above, § 78, and the references therein).

2. Application to the present case

97. The Court notes that the applicants’ complaint under Article 8 is twofold. In the first place it concerns the outcome of the Hague Convention proceedings which had been found to be Article 8 compliant by the Constitutional Court on 16 March 2017 (see paragraphs 48‑52 above). In the second place she complains about the failures of the Constitutional Court (and its judgment of 16 March 2017) to assess the matter as it stood at that date.

(a) Complaint concerning the Hague Convention proceedings

98. In so far as the applicant complained about the outcome of the Hague Convention proceedings, the Court observes that the Constitutional Court judgment of 16 March 2017 was the last step in the process of exhaustion of domestic remedies in connection with the impugned judgment of the Court of Appeal of 30 October 2015 (see paragraphs 26‑32 above). It further reiterates that an order for return, even if it has not been enforced, in itself constitutes an interference with the right to respect for family life (see Šneersone and Kampanella v. Italy, no. 14737/09, § 88, 12 July 2011). Having examined the judgment of the Court of Appeal of 30 October 2015, the Court considers that the Constitutional Court made a proper assessment of the factors capable of constituting an exception to the child’s immediate return and gave a reasoned decision in that respect. That judgment was in line with the ratio behind Hague Convention proceedings namely to restore the status quo ante and of leaving the issues of custody and parental authority to be determined by the courts that have jurisdiction in the place of the child’s habitual residence in accordance with its Article 19. There were no exceptional reasons to decide otherwise. Indeed, the Court of Appeal made an in-depth examination of the entire family situation, took account of the best interest of the child at the time and identified the failures which had occurred at first-instance. Thus, the Court considers that the Court of Appeal gave due consideration, within the scope of the Hague Convention proceedings, to the child’s interests and carefully correlated them with other interests at stake. In these circumstances the Court takes the view that, having regard to the margin of appreciation enjoyed by the authorities in such matters, the decision of the Court of Appeal to order that the Maltese central authority make practical arrangements for the return of the child was based on relevant and sufficient grounds and that the interference with the applicants’ right to respect for their family life, as guaranteed by Article 8 of the Convention and considered in the light of the Hague Convention, was proportionate to the legitimate aim pursued.

99. In connection with the procedural aspect of this complaint, whereby it was argued that the second applicant had not been heard nor had he been assisted by a child advocate, the Court notes that at the time of the Hague Convention proceedings the second applicant was less than four years old, and the first-instance court held that he could not express his views on the matter (see paragraph 24 above). The Court agrees that a child of such a young age cannot be considered as being capable of forming his own views (see, a contrario, N.Ts. and Others v. Georgia, cited above, § 80, concerning the older brother of ten years of age; M. and M. v. Croatia, cited above, § 184, concerning a twelve year old, and M.K. v. Greece, no. 51312/16, § 88, 1 February 2018, concerning a thirteen year old child who opposed his return). Thus, no absolute obligation arose, whether under the Convention or domestic law, to hear the child. In any event, as pointed out by the Constitutional Court (see paragraph 48 above), his views were brought to the courts’ attention by means of the expert opinions despite them having dealt with factors which were more relevant to a determination of care and custody rather than a return decision. Further, as also noted by the constitutional jurisdictions (see paragraph 45 above), the second applicant’s interest, which for the purposes of the present case must be considered to be the same as those of his mother, were duly safeguarded through his representative in the domestic proceedings, namely, the first applicant who was herself legally represented. Thus, the Court if of the view that the second applicant’s interests where safeguarded even in the absence of a child advocate whose appointment was not mandatory under domestic law (see paragraph 79 above).

100. It follows that the entirety of the applicants’ complaint concerning the Hague Convention proceedings must be rejected as manifestly ill‑founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

(b) Complaint concerning the Constitutional Court’s alleged failure to assess the applicants’ situation at the relevant time

101. In so far as the applicants’ complaint concerns the Constitutional Court’s failure to assess the applicants’ situation as stood on that date ‑ that is more than sixteen months after the Hague Convention proceedings had been decided and during which that judgment was not enforced – the Court notes that this complaint is currently pending before the constitutional first‑instance jurisdiction in a fresh set of proceedings (see paragraphs 71‑74 above). Indeed the applicants opted to undertake a fresh set of proceedings where they are complaining, under Article 8 of the Convention, that the Constitutional Court had erred in its judgment of 16 March 2017, as it had not taken into account all that had happened after the judgment of 30 October 2015 ordering the return. In those same proceedings the applicants are also complaining, inter alia, under Article 8 that returning the second applicant in the current circumstances would be in breach of the Convention (see paragraph 71 above).

102. It is not for the Court to substitute its own assessment for that of the domestic courts. The Court’s role is to satisfy itself that the decision‑making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (see Neulinger and Shuruk, cited above, § 139). The Court observes that the second applicant has to date not been returned to the U.K. – originally as a result of the acquiescence of the authorities and subsequently also because of the various injunctions issued on the matter upon the applicants’ request – and that the applicants have precisely formulated their complaint before the constitutional jurisdictions in the light of the situation as stands to date. It is therefore clear that the matter is yet to be decided by the domestic courts. Thus, the Court considers that in the circumstances of the present case it would be contrary to the principle of subsidiarity to assess the case, as stands, before it. Without prejudice to the applicants’ possibility of bringing their complaints again before the Court at a later stage – in the event that the constitutional jurisdictions fail in their obligation to determine the issue in the light of the present circumstances – the Court considers that at this point in time this part of the complaint is premature and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 28 June 2018.

Andrea TamiettiGeorges Ravarani
              Deputy RegistrarPresident

Full & Egal Universal Law Academy