Communicated on 16 December 2015
FOURTH SECTION
Application no. 53661/15
Michel SEVERE
against Austria
lodged on 27 October 2015
STATEMENT OF FACTS
The applicant, Mr Michel Sévère, is a French national, who was born in 1967 and lives in Rochefort. He is represented before the Court by Sir G. Thuan Dit Dieudonné, a lawyer practising in Strasbourg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, a French national, was in a relationship with C.B., a French and Austrian national. Their children (twins), who also hold French and Austrian nationality, were born on 3 March 2006. The family had been living together in Rochefort, France, and the applicant and C.B. had joint custody of the children under French law.
On 10 December 2008 the applicant and C.B. had a dispute, upon which C.B. left their home with the two children, but claimed that she would return four days later.
On 13 December 2008, instead of returning back home, C.B. went with the children to her parents, who live in Golfe-Juan, France. She notified the police in Vincennes about this.
On 17 December 2008 C.B. notified the police in Frejus that she intended to move to Vienna, where she had already taken main residence.
On 18 December 2008 she notified the police in Rochefort, however, that she resided with her parents and that her counsel would inform the applicant about her whereabouts. On the same day C.B., her mother and the children left France and travelled to Vienna.
1. Proceedings in France
On 7 January 2009 the Rochefort tribunal de grande instance issued, upon the applicant’s request, an interim injunction, determining that the applicant and C.B. had joint custody but that the children’s main residence was with the father. It also declared that the father had sole custody when the children resided with him and determined visiting rights for C.B. in that case.
On 16 March 2010 the Rochefort investigating judge issued an arrest warrant against C.B. and on 11 June 2010 the Rochefort tribunal de grande instance issued a European Arrest Warrant (EAW) due to her unlawful removal of the children from France.
On 25 April 2013 the tribunal correctionnel de La Rochelle convicted C.B. of child abduction and sentenced her to one year imprisonment. In addition, she was ordered to pay the applicant EUR 25,000 in damages.
2. Proceedings in Austria (other than those under the Hague Convention/Brussels IIa Regulation)
On 23 December 2008 the Vienna District Court granted C.B.’s request and issued an interim injunction (einstweilige Verfügung) against the applicant, ordering him to refrain from contacting C.B. for a period of three months. The District Court based its decision on C.B.’s statements according to which the applicant had threatened to kill her and had tried to abduct one of their children.
On the same day the Mayor of Vienna granted C.B.’s request and issued a ban on disclosing information (Auskunftssperre) pursuant to Section 18 § 2 of the Residence Registration Act (Meldegesetz).
On 27 February 2009 the applicant laid criminal information against C.B. for child abduction.
On 17 March 2009 the Vienna District Court dismissed C.B.’s request for extending the interim injunction granted against the applicant on 23 December 2008.
On 7 April 2009 C.B. filed a new request for an interim injunction against the applicant, claiming that they were all at risk of being physically harmed and the children at risk of being sexually abused.
On 9 April 2009 the Vienna District Court appointed the Vienna Youth Welfare Office to represent the children’s interests in the interim injunction proceedings.
On 22 May 2009 the Vienna Public Prosecutor’s Office (Staatsanwaltschaft) informed the applicant about the discontinuation of criminal investigations on the suspicion of aggravated sexual abuse of minors.
On 27 May 2011 the Public Prosecutor’s Office informed the applicant that the criminal investigations against C.B. for child abduction had been discontinued. It explained that C.B.’s removal constituted no offence under Section 195 of the Criminal Code (child abduction), because she had had custody of the children at the time.
On 27 June 2011 the Youth Welfare Office requested the District Court to oblige the applicant to pay maintenance for the children as from 1 January 2009.
3. Proceedings under the Hague Convention and the Brussels IIa Regulation
On 25 February 2009 the applicant filed a request for the children’s return pursuant to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”).
On 6 April 2009 the Vienna District Court ordered C.B. to return the children to the applicant. Referring to implausible statements made by C.B. and her mother as well as to reports submitted by the Child Protection Center, it found that C.B.’s allegations that the applicant was violent and had sexually abused the children could not be proven. It further held that the children’s removal had been wrongful within the meaning of Article 3 of the Hague Convention and that C.B. had failed to establish that the return would put the children in an intolerable situation according to Article 13 (1) lit b of the Hague Convention. Therefore, the request to order the children’s return was to be granted.
The mother appealed against this decision.
On 25 June 2009 the Vienna Regional Court partly granted C.B.’s appeal and amended the decision insofar as it ordered the children’s immediate return to France (and not to the applicant). Under point 3 of the decision, it further declared that the decision will only become effective if the French authorities prove that they took adequate measures to ensure the children’s protection in France, especially with regard to the alleged sexual abuse. It held that even if the children were assumed to be at risk of harm upon their return within the meaning of the Hague Convention, the return must be ordered if it is proven that adequate measures were taken in order to ensure the children’s protection, pursuant to Article 11 (4) of the EU Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels IIa Regulation”).
On 13 October 2009 (served on 18 November 2009) the Supreme Court dismissed C.B.’s appeal on points of law. However, it partly granted the applicant’s appeal and lifted point 3 of the impugned decision. Since it had not been established that the applicant actually posed a threat to the children, the Regional Court was not authorised to make the return order dependent on safeguards to be guaranteed by the French authorities.
4. Proceedings concerning the applicant’s request to enforce the return order
On 18 November 2009 the applicant filed a request for enforcement of the return order.
On 21 November 2009 the «Huissier de Justice» in Nice confirmed that C.B. and the children had presented themselves to her.
On 2 December 2009 the applicant informed the District Court about his assumption that C.B. left France and travelled back to Austria after she had presented herself and the children to the authorities in Nice.
Thereupon, on 6 December 2009 the District Court ordered the bailiff (Gerichtsvollzieher) to take the children from C.B. and hand them over to the Youth Welfare Office.
On 7 December 2009, the competent judge, the bailiff and a representative of the Youth Welfare Office looked for C.B. and the children at her and her mother’s address in Vienna. However, the enforcement attempt remained unsuccessful as neither C.B. nor the children were present at the addresses known to the authorities.
Following this, C.B. appealed against the District Court’s enforcement order of 6 December 2009 and on 24 December 2009 she filed a request to refrain from enforcing the return order.
On 22 February 2010 the applicant requested the District Court to disclose C.B.’s address which had been kept secret from him.
On 2 April 2010 the District Court granted the applicant’s request, holding that the nondisclosure was no longer justified, given that the return order had been confirmed by the Supreme Court on 13 October 2009 and that the enforcement attempt of 7 December 2009 had been unsuccessful.
On the same day the District Court dismissed C.B.’s request to refrain from enforcing the return order.
On 13 April 2010 the Regional Court rejected C.B.’s appeal for lack of gravamen (mangels Beschwer). It held that since the enforcement order was set for the 7 December 2009, i.e. before C.B. filed the appeal, she was no longer adversely affected by the impugned decision.
On 16 April 2010 the applicant filed a new request to enforce the return order issued by the District Court on 6 April 2009 as amended by the Supreme Court on 13 October 2009.
On 26 April 2010 C.B. filed a new request to refrain from enforcing the return order, which the District Court dismissed on 26 July 2010.
On 21 September 2010 the Regional Court dismissed C.B.’s appeals against the negative decisions of 2 April 2010 and 26 July 2010 concerning her requests to refrain from enforcing the return order. It further rejected C.B.’s appeal against the District Court’s decision of 2 April 2010 to disclose her address to the applicant.
On 20 October 2010 the Supreme Court rejected C.B.’s extraordinary appeal on points of law against the Regional Court’s decision of 13 April 2010. It confirmed the Regional Court’s view that C.B. lacked gravamen. The Supreme Court further held that, in the present proceedings, it was not competent to deal with the question whether the enforcement must be denied due to a change of the circumstances after the return order had been issued. It also noted that C.B. had filed numerous requests to refrain from enforcing the return order after the Regional Court had decided on her appeal in the present proceedings and held that it would be for the court of first instance to decide whether the circumstances have changed in the meantime in such a way that the enforcement would now expose the children to a grave risk of physical or psychological harm.
On 23 November 2010 the Supreme Court rejected C.B.’s extraordinary appeal on points of law against the Regional Court’s decision of 21 September 2010.
5. Second round of enforcement proceedings
On 14 January 2011 the District Court, presided by judge T.-W., held a hearing in order to discuss how to proceed further, especially with regard to the question whether the children would face a grave risk of harm upon their return to France. She also requested C.B. to inform her about all the proceedings pending in France at the time.
On 26 January 2011 judge T.-W. appointed an expert in the field of child psychology (S.) and ordered her to submit within two months a report on the question whether the children’s return to France (either to their father or to a child protection institution) would pose a grave risk for their psychological development. She also ordered C.B. to cooperate with the expert.
On 4 February 2011 C.B.’s counsel submitted the requested information concerning the pending proceedings in France (custody proceedings, criminal proceedings against C.B. for child abduction, and criminal proceedings against the applicant for sexual abuse).
On 2 March 2011 C.B. submitted a privately commissioned “psychological and medical statement”.
On 15 March 2011 C.B. informed the court that the children would not be able to attend the scheduled examination at the appointed expert due to sickness.
On 21 March 2011 C.B. challenged the judge T.-W. and the expert S. for bias.
On 25 May 2011 the District Court dismissed the challenge against judge T.-W.
On 9 June 2011 C.B. appealed against this decision and filed a new challenge against the judge for bias.
On 21 June 2011 the District Court dismissed the second challenge for bias.
On 7 December 2011 the Regional Court dismissed both appeals against the negative decisions concerning C.B.’s challenges against judge T.-W.
On 7 March 2012 the District Court, presided by judge T.-W., dismissed C.B.’s challenge against the expert S.
On 13 August 2012 the District Court dismissed the applicant’s request to enforce the return order of 13 October 2009. Referring to expert opinions submitted by three different psychologists, it held that the children were severely traumatised and that a separation from their mother would put them in an intolerable situation or even lead to an existential crisis. The allegations of sexual abuse could neither be proven nor excluded. However, the court reiterated that even if the return would put the children at grave risk of harm in the sense of Article 13 (1) lit b of the Hague Convention, it may only refuse to order their return if the French authorities had failed to show that adequate protective measures had been taken. On 16 August 2010 the District Court had therefore requested the French authorities to submit the necessary information in this case. On 8 June 2011 and on 8 July 2011 the French central authority submitted that all guarantees would be fulfilled to ensure the children’s return without any risks and that the children would not be entrusted to the applicant upon their return. On 26 March 2012 a hearing had been held in order to discuss possible scenarios if the children returned to France. However, since the applicant had not attended this hearing without providing any excuse, the District Court had the impression that the proceedings were not so much about the children, but had primarily been conducted in order to create a new conflict with C.B. It further held that a balancing of competing interests must be carried out in such a case, but that the children’s interests were of paramount importance. Referring to the Court’s case-law in Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, ECHR 2010), the District Court stated that the traumatisation of the children, the interest to preserve their well-being and the situation awaiting them in France stood against a return at the moment. Contacts between the applicant and the children should be slowly re-established in Austria and with psychological support.
The applicant appealed against this decision and challenged judge T.-W. for bias.
On 1 October 2012 the District Court dismissed the challenge for bias.
On 7 May 2013 the Regional Court dismissed the applicant’s appeal.
On 28 August 2013 the Supreme Court quashed the decision and referred the case back. It ordered the District Court to make attempts to remove the arrest warrant against C.B. in France, to assess whether C.B.’s mother would be willing to accompany the children to France and care for them until the French courts clarified the situation, and to examine the possibility of the children living in a child protection institution, as close as possible to the applicant’s residence.
On 31 October 2014 the District Court dismissed the applicant’s request to enforce the return order anew. It held that C.B.’s mother was not willing to go to France and that C.B. was in the meantime convicted and sentenced to one year imprisonment. Further, it was not possible to clarify what would happen exactly to the children upon their return to France. The French authorities were not able or willing to make any precise statements in this regard. Therefore, the District Court concluded that it would constitute a severe risk of harm for the children within the meaning of Article 13 (1) lit b of the Hague Convention if returned to France, given that they would be very likely separated from C.B. and would probably be placed in a child protection institution in a – according to their perception – foreign country and with no reference persons around.
The applicant appealed against this decision. He claimed in essence that the District Court had failed to sufficiently clarify in an expedient manner what measures were foreseen by the French authorities to ensure the children’s well-being.
On 11 February 2015 the Regional Court dismissed the applicant’s appeal. Whilst it recognised that C.B.’s behaviour – concerning the removal of the children from France as such, but also with regard to the delaying tactics conducted in the present proceedings – was not acceptable, it reiterated that the Austrian courts were competent only to decide whether the requirements of Article 11 (4) of the Brussels IIa Regulation were fulfilled and to assess what would be in the best interests of the children. In this regard, it held that the District Court had correctly concluded that the requirements of Article 11 (4) of the Brussels IIa Regulation were not fulfilled, since the French authorities had not provided sufficient guarantees to ensure that the children would not be severely harmed upon their return. It could not be established that the children would be able to stay with C.B. when serving her prison term and their grandmother was not willing to accompany them to France, hence they would be left without any persons they trust. It further dismissed the applicant’s allegations that the District Court had failed to contact the relevant French authorities and to pose the right questions. In fact, the Regional Court held that the French authorities had merely referred to general alternatives without offering any precise answers and had not taken any active steps to resolve the obstacles which stood in the way of returning the children to France. In particular they could have guaranteed that the interim injunction of 7 January 2009 (which had awarded the father sole custody of the children when in France) be revoked and could have offered C.B. safe conduct in order to conduct the custody proceedings. However, the Regional Court also noted that the applicant’s conduct was not in the children’s best interests, since it appeared that the enforcement of the interim injunction and the criminal conviction of C.B. were more important to him than the psychological well-being of his children. To conclude, the Regional Court found that the District Court had made reasonable efforts within the meaning of the Brussels IIa Regulation and that the primary duty lay with the French authorities. Moreover, since the children had been separated from the applicant for nearly six years already, the District Court should not repeatedly be ordered to make more and more efforts to obtain the requested guarantees from the French authorities. The applicant’s request for enforcement had therefore correctly been dismissed.
On 30 March 2015 the applicant filed an extraordinary appeal on points of law. He reiterated that the Austrian courts had not contacted the relevant persons, i.e. the competent judges in France and that the French authorities, contrary to the Regional Court’s statement, had indeed offered to eradicate C.B. from the search register and that the court had wrongly concluded that C.B. would actually be imprisoned in France. The situation concerning the children’s care and accommodation could be clarified within a couple of days upon their return and their placement in a child protection institution for a few days would not re-traumatise or otherwise harm them. He further claimed that the courts should have urged C.B. to request a postponement of her imprisonment, before dismissing the applicant’s enforcement request.
On 27 April 2015 the Supreme Court rejected the extraordinary appeal on points of law. It confirmed the lower courts’ view that the return to France would very likely severely traumatise and psychologically harm the children in the sense of Article 13 (1) lit b of the Hague Convention. Therefore, it clarified that the return may nonetheless only be ordered if it was proved that France had taken adequate measures to protect the children upon their return. However, if there remain doubts in this respect, the return must not be ordered. In the present case, the Supreme Court found that since a separation between C.B. and the children could not be excluded when returning to France (due to C.B.’s possible imprisonment), the doubts expressed by the lower instances were justified, especially as the French authorities had not taken any concrete measures to prevent this separation. However, the Supreme Court also pointed out that this would not mean that C.B.’s conduct had been lawful, but that the decision was rather based on what seems best for the children’s well-being. Lastly, it held that the applicant still had the possibility to apply for visiting rights in Austria.
This decision was served on 20 May 2015.
B. Relevant domestic and international law and practice
1. Non-Contentious Proceedings Act
The enforcement of child custody decisions is based on Section 110 of the Non-Contentious Proceedings Act (Außerstreitgesetz). This provision also applies to the enforcement of decisions under the Hague Convention and, according to the Supreme Court’s case-law, to the enforcement of return orders under the Brussels IIa Regulation.
Section 110 (3) provides that:
“The court may on its own motion only refrain from continuing the enforcement proceedings, if and as long as they endanger the child’s well-being.”
Section 110 (4) provides that:
“If the child’s well-being requires it, the court may request the Youth Welfare Office or the Juvenile Court Assistance Office for support in enforcing the custody decision.”
In its decision of 23 November 2010, the Supreme Court held that contacting the French central authority and asking them whether adequate measures could or have been taken in order to prevent a grave risk of harm for the children upon their return had to be seen as a measure within the meaning of Section 110 (4) of the Non-Contentious Proceedings Act.
2. Residence Registration Act
Section 18 § 2 of the Residence Registration Act (Meldegesetz), insofar as relevant, provides as follows:
“Every person who is registered may request the registration authority not to disclose their information relating to their registration. Such a request is to be granted if a legitimate interest is made credible.”
3. Relevant domestic practice
According to the Supreme Court’s established case-law (2 Ob 8/10f), a return order issued under the Hague Convention must not be enforced if the circumstances between the issuing of the return order and the enforcement measures have changed in such a way that the enforcement would expose the child to a grave risk of physical or psychological harm.
4. Relevant international and EU law
The relevant provisions of the Hague Convention and the Brussels IIa Regulation are set out in M.A. v. Austria, no. 4097/13, §§ 67 - 69, 15 January 2015.
COMPLAINT
The applicant complains under Article 8 of the Convention that the Austrian courts did not take all necessary measures that could reasonably be expected to ensure the swift return of the children to the applicant and that they violated their positive obligation to take adequate measures in order to reunite the applicant with his children.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention?
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