Information Note on the Court’s case-law No. 143
July 2011
Shaw v. Hungary - 6457/09
Judgment 26.7.2011 [Section II]
Article 8
Positive obligations
EU Regulation on the enforcement of judgments and illegal removal of a child: violation
Facts – After the applicant, an Irish national living in Paris, and his Hungarian wife divorced in 2005, they were granted joint custody of their then five-year-old daughter. In December 2007 the mother took the child to Hungary for the holidays and enrolled her in a school there without the applicant’s consent. Relying on Council Regulation (EC) no. 2201 of 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility (“the EC Regulation”) and the Hague Convention on the Civil Aspects of International Child Abduction, in March 2008 the applicant brought an action against the mother in a Hungarian court for the return of the child. The court established that the habitual residence of the child was in France and that, given their joint custody, neither parent could change that residence without the approval of the other. On 30 May 2008 the court established that the child had been abducted and ordered the mother to take her back to France by 6 June or hand her over to the Hungarian police by 10 June. On appeal, on 2 September 2008 the second-instance court upheld that decision but granted the mother an extension of time. However, when the mother did not comply, on 15 October 2008 the first-instance court ordered enforcement of the judgment. A court bailiff then unsuccessfully asked the mother to comply voluntarily with the order. On 18 November 2008 the Supreme Court upheld the lower courts’ decisions. The mother then requested a stay of execution, but her request was rejected and she was ordered to pay a fine of about EUR 180. In April 2009 the court ordered the enforcement of the child’s return with police assistance and scheduled an on-site intervention for 29 July 2009. Meanwhile, a French court had issued a European arrest warrant against the mother, on the basis of which she was arrested on 27 July 2009, but released a day later since no criminal proceedings were pending against her in Hungary. The enforcement attempt of 29 July was unsuccessful since the mother and daughter had absconded. In October 2009 the bailiff tried to find the child in school, but established that she had not attended classes during the school year. Despite numerous measures – such as monitoring the telecommunication providers, the school and the database of the national-health insurance fund – the authorities have been unable to locate the mother or the child.
Meanwhile, in April 2008, on the basis of Article 41(2) of the EC Regulation, a French court issued a certificate concerning the applicant’s access rights established after the divorce. However, when the applicant requested enforcement of those rights before the Hungarian authorities, his request was dismissed with the explanation that they lacked jurisdiction.
Law – Article 8: The Court was called upon to examine whether, seen in the light of their international obligations arising in particular under the EC Regulation and the Hague Convention, the Hungarian authorities had made adequate and effective efforts to secure compliance with the applicant’s right to the return of his child and the child’s right to be reunited with her father. Even though Article 11(3) of the EC Regulation set out a clear obligation on the domestic courts to issue a judgment within six weeks after the lodging of the application, in the applicant’s case the first-instance judgment was delivered only after seven weeks, the second-instance judgment after another thirteen weeks and the Supreme Court’s judgment eleven weeks later. These delays may have been partially due to the five-week court holiday period, but cases of this sort should be classified as urgent and be dealt with even during court holidays. The delays in the procedure alone enabled the Court to conclude that the authorities had not complied with the positive obligations under the European Convention. Moreover, the authorities had failed to take adequate steps for the enforcement of the return order prior to 29 July 2009. Almost eleven months had elapsed between the delivery of the enforcement order and the mother’s disappearance with the daughter. During that time, the only enforcement measures taken were an unsuccessful request for the voluntary return of the child and the imposition of a relatively modest fine. Finally, the situation had been aggravated by the fact that more than three and a half years had passed without the father being able to exercise his access rights. This was essentially due to the fact that the Hungarian authorities had declined jurisdiction in the matter despite the existence of a final court decision that had been certified in accordance with Article 41 of the EC Regulation.
Conclusion: violation (unanimously).
Article 41: EUR 20,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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