July 23, 2019
Simona Florescu PhD fellow, Leiden Law School, the Child Law Department
Parental child abduction has been a frequent occurrence for the European Court of Human Rights with the case of O.C.I. and others v Romania being the latest in a series of more than 70 applications. The Court decided these cases in several formations, ranging from the Grand Chamber, to the Chamber and most recently to the Committee of three judges. These formations are indicative of the importance the Court attaches to the issues raised by parental child abduction cases. On the basis of O.C.I. and Others v Romania, we could thus infer that child abduction has become a matter of well-established case law which does not require a too detailed analysis. This may well be the perspective of the ECtHR, however, child abduction is anything but well-established case law and it is precisely in these cross border cases that the Court can and should make a significant contribution in standard setting.
It is for this reason that I have decided to write this blog post. I argue that the Court – and human rights practitioners in general – need to be alert of the difficulties that cross border cases raise for individuals. In these cases, domestic courts of one country are expected to defer the analysis of the merits of the case to the domestic courts of the other country. In the midst of such deferral, and because there is no supranational supervision (other than that of the ECtHR), there is a risk of lower or no protection for human rights. Therefore, dispensing with this case in a Committee of three judges does not do justice to the many complexities raised by child abduction cases. I argue that the case of O.C.I. and others v Romania is one example where, in my opinion, there is more at stake than what the Court makes of it.
The applicants are a mother, of Romanian origin, and her two children. The case concerned her refusal to return to Italy with the children after a holiday in Romania. She claimed that the father (who is an Italian national living in Italy) had been abusive to the children, for example by pulling them by the ears, slapping their faces or hitting their bottoms. According to her, the violence had increased in recent years and the abuse extended to her as well.
The father requested the children’s return to Italy under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”). As per this Convention, authorities in the country of presence (in this case Romania) are to return the children who have been removed in breach of custody rights of one parent to the children’s country of habitual residence (in this case Italy). There was no question in the present case that when O.C.I. refused to return to Italy with the children, both she and their father had custody. Thus, there was a case of wrongful removal, and the Romanian authorities were, in principle, bound to order the return of the children to Italy so that the Italian authorities could decide on aspects such as parental responsibilities, relocation, and the like. Nevertheless, the Hague Convention foresees several situations where domestic authorities may refrain from ordering the return. One such situation is where there is a risk that return would expose the children to psychological or physical harm.
This was precisely how the issue was framed before the Romanian courts. The applicant claimed that if the children were to be returned they would face a grave risk of harm given the abusive behaviour of their father. The father did admit in the course of proceedings that he had indeed been violent in the sense described, therefore the existence of violence was not disputed between the parties. The question was rather whether the Italian authorities would be able to offer the mother and her two children protection upon return. By a final judgment of 30 March 2017, the Bucharest Court of Appeal found that it would be reasonable to expect that if returned, the Italian authorities were capable of offering protection to the children. The Bucharest Court of Appeal also indicated that the father’s behaviour was not serious enough to amount to a grave risk of harm.
The applicants complained under Article 8 ECHR that the envisaged return of the two children to Italy amounted to a grave risk of harm for them due to their father’s behaviour.
The ECtHR framed its reasoning on the basis of its recent strong position against corporal punishment of children. The Court appeared very critical of the national courts’ implicit acceptance of the idea that ‘slight’ violence against children is acceptable. In essence, the Court applied its standard case law and held that the Romanian authorities were presented with an arguable allegation of a grave risk of harm and they did not genuinely take this into account. The ECtHR held that adherence to the principle of mutual trust as per the relevant European Union Regulation did not in itself result in an obligation to return children who are likely to face abuse, on the sole ground that the authorities in the other state are capable of dealing with cases of child abuse. For all these reasons the Court found that the domestic authorities failed to examine the allegations of “grave risk” to the children, contrary to Article 8 ECHR.
Reading between the lines
All in all, the case of O.C.I. v Romania seems like a fairly standard case. It also seems that the ECtHR chose to focus on its recent strong position in corporal punishment cases and to condemn the Bucharest Court of Appeal for its seemingly weak stance against corporal punishment. I believe, however, that the thorny issue for the domestic authorities was not the domestic violence per se, but rather how should domestic violence be assessed in the specific context of child abduction proceedings. In my view, courts may find it difficult to decide (i) when to accept that the case of domestic violence abroad has been established (meaning what evidence constitutes sufficient evidence); or (ii) when the authorities, in the country where the children are to return, can offer adequate protection; or (iii) what constitutes adequate protection. All these questions relate to the issue of mutual trust and cross border cooperation between states.
It should not be forgotten that child abduction is subject to heavy regulation from several international bodies. The Hague Conference on Private International Law is one such body and, in addition to the Hague Convention it has issued numerous practice guides and other documents in this area. Then, for the European Union, the Brussels II bis – recently recast after several years of negotiations – places heavy burdens on domestic authorities to order the return of the children if there are adequate measures of protection in the country of habitual residence. What constitutes ‘adequate measures of protection’ is left to domestic authorities.
The ECtHR for its part has rendered more than 70 judgments or decisions, several of them having been subject to strong criticism and many of them showing dissents within the Court. It is therefore hardly a surprise that domestic judges, for whom child abduction is not on the daily docket are finding it difficult to ‘get it right’. Moreover, even though these international instruments provide guidance on the issue of international cooperation, there is no judicial oversight to assess what international cooperation means in concrete cases. This is precisely a vacuum that the ECtHR could fill without overstepping its subsidiary role. Thus, the Court could have made more explicit that it expects the domestic authorities of one country to actually verify that protection measures are in place in the other country before ordering the return of children. At domestic level, such conduct can only reinforce the principle of mutual trust and it is not in contravention with either the Brussels II bis Regulation or the Hague Convention. Given that the complaints arise after the exhaustion of domestic remedies and right before the children are expected to return, it is only the ECtHR as an international body who can perform this check.
Finally, I believe relegating child abduction cases to the Committee of three judges does not do justice to the importance these cases deserve. It also sends the wrong message to national authorities, indicating that this is a simple matter where they erred, when in fact child abduction is far from that.
 As per Article 28 (1) (b) of the ECHR, Committees of 3 judges are competent to decide on cases where there is well established case law of the Court.
 Child abduction seems to be high on the agenda of international family law practitioners, as evidenced, among others, by the many panels discussing precisely this topic at a large family law conference