May 11, 2015
This guest post was written by Thalia Kruger, Senior Lecturer, Research Group Personal Rights and Real Rights, University of Antwerp and Honorary Research Associate, University of Cape Town.
Adžić v. Croatia is yet another case in the long row of cases about international parental child abduction that hit the role of the European Court of Human Rights. These cases pose a particular challenge to the Court in a very difficult and sensitive domain of family law. Jurists and lawyers in various fora have attempted to find workable solutions by instruments such as the Hague Child Abduction Convention of 1980, the Council of Europe Custody Convention (Luxembourg, 1980), the Brussels II bis Regulation (2201/2003) in the EU, and national legislation. Mediators try to find appropriate ways in which to resolve child abduction issues.
The problem lies in finding the correct balance between sending the child back quickly and taking his or her best interests into account.
The facts of this case, sad as they are, are typical for child abduction cases. The relationship between the parents broke down, there were allegations of violence, and the mother took the child from the US to Croatia. Subsequently, the legal treadmill was set into motion. The father introduced return proceedings in Croatia under the Hague Child Abduction Convention. Such proceedings should be completed within six weeks (Art. 11). Instead, at first instance this case took five months. Then came the appeal, which took two-and-a-half months. The case was sent back and the next procedure took one year and nine months. More appeals ensued and all-in-all the proceedings lasted for more than three years, which was more than half of the child’s life: he was just under three years when his mother took him and six by the time of the last national judgment.
The Court found that dragging out the proceedings in this way amounted to a violation of the right to family life (Art. 8 ECHR).
Although this conclusion is hardly spectacular, the Court is giving national courts a really hard task. In its previous case law, the Court has said that a national court could not order the return of the child or enforce a return order if it has not considered the child’s best interests (Neulinger and Shuruk v. Switzerland, B. v. Belgium, Sneersone and Kampanella v. Italy). In X. v. Latvia, the latest judgment on the matter by the Grand Chamber, the Court explained that this did not mean a detailed assessment of the entire situation, but an obligation to genuinely take into account factors that could constitute an exception to the return (under Arts. 12, 13 and 20 of the Hague Convention), in particular if one of the parties raised these factors. This assessment must be made in the best interests of the child. Now the Court adds that the assessment must be done speedily, which is in line with the goal of the Hague Convention.
Judge Dedov in his dissenting opinion is less positive about the compatibility of the speedy Hague proceedings and the analysis of the child’s best interests. In his view the Hague Convention is not a suitable instrument for situations in which the family has broken up and where the abducting parent is in a vulnerable situation.
His words are harsh, especially after the nuanced position taken by the Court in X v. Latvia. He is not the first to criticize the Hague Convention on these grounds. The Convention does, however, have the goal to dissuade parents to leave with their children without agreement by the other parent or permission by a court to do so. Taking the law into one’s own hands can hardly be in the best interests of children.