Communicated on 9 November 2015
FOURTH SECTION
Application no. 26956/14
José Manuel SIMÕES BALBINO
against Portugal
lodged on 2 April 2014
STATEMENT OF FACTS
The applicant, Mr José Manuel Simões Balbino, is a Portuguese national who was born in 1960 and lives in Almada. He is represented before the Court by Ms I. Catalão, a lawyer practising in Lisbon.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant entered into a relationship with S.F., a German national, and began living with her in Portugal. Their daughter, who is a Portuguese national, was born in November 2003. The applicant and S.F. had joint custody of her.
On an unknown date the relationship between the applicant and S.F. formally ended; they separated, but continued to live together.
In November 2006 S.F. informed the applicant that she planned to move to Germany with their daughter. The applicant was against his daughter moving to Germany and revoked a declaration he had made before the German Embassy in Lisbon allowing his daughter to travel outside Portugal.
On 23 April 2007 the applicant initiated proceedings in respect of parental responsibilities (regulação do poder paternal) before the Lisbon Family Court (Tribunal de Família de Lisboa). He asked the Family Court to issue a travel ban prohibiting his daughter from leaving Portugal (domestic proceedings no. 795/07.0TMLSB).
On 7 May 2007 the Lisbon Family Court issued a temporary travel ban in respect of the applicant’s daughter.
On 11 June 2007 the Lisbon Family Court held a conciliation hearing (conferência de pais) between the applicant and S.F. Because no agreement was reached, the Lisbon Family Court requested from the Portuguese social services information about the child and her parents.
On 3 September and 20 December 2007 the applicant lodged two separate requests with the Lisbon Family Court for it to establish a preliminary regime with regard to parental responsibilities in respect of the child. The Lisbon Family Court did not reply to the applicant’s requests.
On 15 April 2008 the applicant lodged a third request with the court seeking a preliminary regime with regard to parental responsibilities. He stated that S.F. had changed the locks to their house and had registered their daughter in the Berlin Civil Registry, through the German Embassy, under a name which included S.F.’s surname but not the applicant’s.
The Lisbon Family Court scheduled a second conciliation hearing for 9 May 2008. S.F. did not attend the hearing, which therefore had to be postponed.
On 12 May 2008 the applicant received a text message sent to his telephone by S.F. in which she told him that she was in Germany with their daughter.
On 15 May 2008 the Lisbon Family Court issued an order (despacho) in which it declared that the applicant’s daughter had been illegally removed from Portugal by S.F. and that the applicant should lodge a request with the Portuguese Central Authority seeking the return of the child under the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
On an unknown date in May 2008 the applicant submitted a request for the return of his daughter to Portugal under Article 3 of the Hague Convention.
On 16 June 2008 the Lisbon Family Court requested information from the German social services regarding S.F.’s social and economic situation, as well as her capacity to exercise parental responsibilities. The Lisbon Family Court also requested information about the applicant’s daughter.
On 15 July 2008 the Portuguese Central Authority officially requested the child’s return to Portugal. On 31 October 2008 it informed the Lisbon Family Court that S.F. was opposed to the child’s return to Portugal and that for that reason the applicant should initiate proceedings for the return of his daughter before the competent German court.
On 21 October 2009 the Aachen Family Court in Germany sent to the Lisbon Family Court a report dated 31 July 2009 from the German social services.
On 15 February 2011 the Lisbon Family Court held the first hearing in the proceedings. On 1 March, 4 April, 5 May, 10 May and 18 May the Lisbon Family Court held another five hearings.
By a judgment of 16 March 2012 the Lisbon Family Court awarded S.F. sole custody of the child. The court observed that the applicant’s daughter had been illegally removed from Portugal by S.F. and that she had acted contrary to Article 3 of the 1980 Hague Convention and EC Regulation no. 2201/2003 of 27 November 2003; nevertheless, it considered that separating the child from her mother after such a period of time would constitute a risk to her emotional and psychological development. However, the court granted the applicant contact rights whenever he travelled to Germany to see the child (provided that his visits did not disturb the child’s daily routine); further, the court granted the applicant contact rights during the child’s school holidays (during which it ruled that contact should be divided between both parents).
On an unknown date the applicant appealed against the judgment before the Lisbon Court of Appeal (Tribunal da Relação de Lisboa). On 10 October 2013 the Court of Appeal upheld the first-instance judgment.
B. Relevant domestic law
Section 191 of the Minors Act adopted by Legislative Decree no. 314/78 of 27 October 1978 provides, inter alia:
“(1) If the minor has left his parents’ house or the house provided for him by his parents or if he has been removed from it or if he is not in the custody of the person or institution to which legal custody has been awarded, an application for his return shall be made to the court with jurisdiction over the area where the minor is located.
(2) If proceedings are brought, the guardian and the person who cared for or retained the minor shall be summoned to make submissions in reply within a period of five days.
...
(4) If there are no submissions in reply, or if such submissions are manifestly ill-founded, the court shall order the child’s return and indicate where it is to take place; the court shall order such return only where it considers it necessary; the person concerned shall be served with the order so as to be able to effect the return in accordance with its terms, on penalty of being prosecuted for non-compliance with a legal order.”
Under Article 348 of the Portuguese Criminal Code, non-compliance with a legal order is punishable by a term of imprisonment of up to one year or by a fine not exceeding 120 day-fines.
C. Relevant international law
The relevant articles of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 provide as follows:
Article 3
“The removal or retention of a child is to be considered wrongful where
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or detention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or detention ...”
Article 5
“For the purpose of this Convention –
a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence ...”
Article 7
“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through an intermediary, they shall take all appropriate measures –
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by takin or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”
Article 8
“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child ...”
Article 10
“The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.”
Article 11
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.”
Article 18
“The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention about the length of the proceedings concerning his and S.F.’s parental responsibilities and that he has not seen his daughter since 2008. He considers that in failing to act expeditiously, the Portuguese authorities allowed for the family ties between him and his daughter to be broken.
QUESTIONS TO THE PARTIES
1. Did the applicant have at his disposal an effective remedy to complain about the delay of the proceedings under the 1980 Hague Convention proceedings to ensure the return of his daughter to Portugal? In the affirmative, has he exhausted it?
Did the applicant exhaust domestic remedies in the proceedings under the 1980 Hague Convention, seeking the return of his daughter to Portugal?
2. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention? In particular, have the Portuguese authorities failed to adopt adequate and effective measures which would have allowed them to examine within a reasonable time the proceedings with regard to parental responsibilities and give the applicant’s access rights with regard to his daughter (see, mutatis mutandis, Ignaccolo‑Zenide v. Romania, no. 31679/96, § 95, ECHR 2000‑I and Monory v. Romania and Hungary, no. 71099/01, §§ 79, 81 83-84, 5 April 2005)? Did the Portuguese authorities implement the available legal mechanisms in order to request the child’s return to Portugal?
3. Is the length of the proceedings in the present case, in which the applicant sought to have parental responsibilities with regard to his daughter determined, in breach of the “reasonable time” requirement of Article 6 of the Convention?
4. The parties are requested to submit all relevant information on the exercise of custody rights by the parents during the internal procedure and specifically with regard to the period between October 2008 and March 2012 and a copy of the decision adopted in the proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction following the request of the applicant to the Portuguese Central Authority of May 2008, as well as any final decision on the merits by the Aachen Family Court in Germany or any other competent German court.
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