March 30, 2020
This post was written by Nadia Rusinova who is attorney-at-law and lecturer in International private law at The Hague University.
On 29 January 2019 the European Court of Human Rights (hereinafter: The Court) delivered its judgment on the case Simoes Balbino v. Portugal which addresses procedural delay in the context of the attribution of the exercise of parental authority in child abduction cases and the obligations of the state under Art. 8 ECHR. A key factor, in this case, is the time factor in proceedings related to child abduction, under the Hague Convention and in general in proceedings related to children. In the present case, the Court has ruled in a rather unexpected way on the issue of how the wrongful removal of the child should be assessed in a pending parental dispute, and in particular, is the child abduction a factor which determines the procedural behaviour of the domestic courts.
In its previous case law, the Court had said that a national court could not order the return of the child, or enforce a return order, if it had not considered the child’s best interests (Neulinger and Shuruk v. Switzerland, B. v. Belgium, Sneersone and Kampanella v. Italy). Later, in X. v. Latvia, the most recent judgment on this matter delivered by the Grand Chamber, the Court explained that the consideration of the child’s best interests did not mean a detailed assessment of the entire situation, but instead 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 invoked these factors. In Adzic v. Croatia the Court adds that the assessment must be done speedily, which is in line with the goal of the Hague Convention. Subsequently, in its most recent judgment in Rinau v. Lithuania, the Court finds that the time it took for the Lithuanian courts to reach the final decision in the applicant’s case, the Lithuanian courts had ‘failed to respond to the urgency of their situation’ and the delay of two years already amounted to a violation of Art.8. The view of the Court in this case offers some challenging turns to the aforementioned precedent – namely on the issue of time proceedings –which will be discussed further below.
The applicant – Mr Balbino – in this case is a Portuguese national. He lived together with his partner, a German national, and had a daughter who was born on 17 November 2003. In early 2006, the couple separated and in November the mother informed the applicant that she wanted to move to Germany with the child. A few months later, failing to reach an agreement on the parental rights, the father lodged an urgent demand before the Family Court of Lisbon for parental responsibility order, and also asked the court to issue a ban on his daughter leaving Portugal. On 7 May 2007, the domestic court rendered a decision which found that it was not able to rule on the grounds as it did not have the necessary information and evidence. After a further few more months of court proceedings without a certain result, the applicant received a message from the mother, on 12 May 2008, on his mobile phone saying that she is in Germany with their daughter. Subsequently, for almost two years, the Portuguese courts did not act swiftly enough to rule on the parental responsibility. As a consequence, neither the right of access was ruled on, nor were provisional measures taken. Thus, the father had no contact with the abducted child, which allegedly led to long-term consequences, damaging the relationship between the father and the child, and contributing to the destruction to the child’s emotional ties with the father.
The applicant complained before ECtHR that it has been impossible for him to exercise his parental rights both in Portugal and Germany, and that the domestic court proceedings took an unreasonably long time with irremediable consequences.
The Court, in this case, makes a rather surprising distinction in its reasoning in regard to the delay of the proceedings. It points out that, given the circumstances of the case, the family court in Lisbon had taken all measures that could be reasonably required before the abduction. The Court notes that the interference with the right to respect for family life of the applicant caused by the removal of the child to Germany cannot be regarded as a result of an act or omission by the Portuguese authorities, but only as a result of the behaviour of the abducting mother. Thus, the Court finds a violation of Art. 8 for the period of time following the removal of the child, and points out that faster processing of the case by the courts after the movement of the child would have allowed the father to exercise his rights in connection to the child. The Court finds no violation of Art. 8 for the period before 12 May 2008 (the day when the child abduction became known to the applicant) in relation to the domestic court’s initial decision to not rule on the parental responsibility. Instead, the Court stresses that a violation of Article 8 is found only after 12 May 2008 because this date is seen, by the Court, to be the decisive point for the date of the wrongful removal of the child. The subsequent proceedings lasted six years, five months and twenty days, through two levels of jurisdiction, which is unquestionably long for any proceeding concerning a child.
The rationale is obvious: faster proceedings must take place after the wrongful removal of a child to facilitate effective contact with the parent who is left behind. The passage of time in this case has undoubtedly affected the domestic court’s decision at the end to assign custody of the child to the abducting parent (the mother). This decision is based on the integration of the child in its new environment which now fuels the domestic courts’ decision of non-return of the child to the state of its habitual residence.
This reasoning reaffirms the finding in P.F. v. Poland, where the Court held that time is an important factor in proceedings concerning children (not solely in Hague Convention cases, but in procedures concerning children in general) because there is always a danger that any procedural delay will result in the de facto determination of the disputed issue before the court.
As highlighted many times prior, prolonging the proceedings in this way amounts to a violation of the right to family life under Art. 8 as the passage of time can have irreparable consequences for the relationship(s) between child(ren) and the parent who does not live with them. But this is not really news. The first two questions to be asked when discussing the delay in the proceedings, both in parental disputes in cases of child abduction and child abduction cases alone, should be: How long is too long? How to strike a balance to make the return not just ‘mechanical’ but also ‘swift’? The latter question cannot be adequately answered without discussing the aforementioned case law in the light, not only of the Hague Convention, but also in the light of the Brussels IIa recast (entering into force in August 2022).
Two further questions which should be answered, especially in the context of this case, will be the focus of this blog post: Is it necessary to split the periods of time according to the incidence of the wrongful removal, and to thus assess the authorities’ behaviour in reference to these periods? Furthermore, to what extent would this division serve the best interest of the child, if at all? Undoubtedly, the abduction of a child should call for a faster determination. Indeed, this factual change, even outside of the Hague Convention, calls for concluding the proceedings in a timely manner and also for adopting appropriate provisional measures in case the foreseen delay is significant.
To answer the first question, from the perspective of the child’s best interest, the decision of the Court to divide the court procedure into two parts (given the inclusion of the element of child abduction) to be assessed for violation of Art.8 makes perfect sense. On its own, child abduction should call for urgency due to the irreparable damages it can bring to the relationship between the father and the child. However, when child abduction is added to a pending parental dispute, then this separation of the Court’s procedure suggests that there are separate requirements for the domestic courts before and after the abduction. The Court is prima facie taking a more realistic approach to the situation in domestic family litigation as there is a different sense of urgency between a child abduction and lengthy parental disputes.
That being said, when turning to the second question concerning how this division of procedure benefits the child, the Court does state that the concept of the best interest of the child is necessary for specific determinations in both cases – before 12 May 2008 and after it. However, the Court’s call for urgency is only pushed in respect to the child abduction which is seen when the Court points that ‘the important factor in proceedings concerning (the abduction of) children is that time takes on a particular significance’. The reasoning in par. 89-96 of the judgment, concerning the Courts assessment for the period prior to the child abduction is not really persuasive as it does not discuss at all the fact that the mother announced before the introduction of the court proceedings that she intends to take the child to Germany without the applicant’s consent. In this sense, it is rather surprising that the Court didn’t see the failure of the domestic courts to assess the situation and to act in accordance with the requirements of Art. 8. There is, therefore, a disconnect when the Court does not apply the same type of urgency on the events prior to 12 May 2008 but then suddenly expects a level of urgency from the domestic courts on a case that has been considerably complicated by lengthy family litigation. Thus, for practical reasons the Court should apply this approach of splitting the procedure – by placing unequal weights of urgency – with care.
First, as this was not a Hague Convention case (because this is a parental dispute case and not solely based on the issue of child abduction), the 6-week deadline to issue a judgment was not applicable – rather the Court looked to the general procedural rules of Portuguese domestic law. It was clear that in both situations – before and after the child abduction – the state should act with urgency. To say that after the wrongful removal in a pending case a domestic court should act in a different way, brings doubt as to precisely what the obligations of the domestic courts are prior to the removal of the child and this can subsequently lead to practical problems depending on the facts of the case, such as it could impact what evidence can be admissible by the domestic courts.
Second, while it is correct that the passage of time can settle the dispute itself in cases of a wrongful removal, the situation should be analysed as a combination of deeply interrelated facts, and separate matters which should not be taken out of context. Such an approach as in the Balbino v. Portugal – where the Court split the assessment of the procedural behaviour of the state depending on the mere fact of the wrongful removal of the child – would be a confusing message to send to domestic family courts. Specifically, they might find it hard to identify what to consider decisive, and how to assess the best interest of the child in these complex situations.
Lastly, it should be noted that due to many factors, domestic court proceedings always contain some incoherence in their development. By way of example, objective circumstances like the need for expert opinions or the difficulties in serving the other party with legal documents may take longer periods of time. In these, and other circumstances, the mechanical application of the law would only serve to violate the adversarial nature of the process and the right to a fair trial.
How could the Court have acted differently? Obviously, the case concerns the inability of the domestic courts to facilitate the effective relationship between the applicant and his daughter for a long period of time. It is not really clear what is the difference in the procedural behaviour of the Portuguese domestic authorities before and after the abduction, but the attention of the Court is focused only on the period after the removal of the child, giving the impression that this is the fact which should determine the speed in the proceedings. Compare this lack of urgency in the Court’s reasoning in the time period before the abduction, where the Court finds no violation of Art. 8 despite there being no (not even provisional) measures taken by the domestic courts. Instead, long ineffective mediation procedures had been introduced, and the domestic court in seeking an amicable solution only wasted more time. The Court thus (almost) automatically ignores the process before the child abduction and moves its analysis only on the time after it, when the same sense of urgency should have been put on the behaviour of the Portuguese courts before 12 May 2008. By putting all the emphasis on the events after this date solely because of the fact of the child abduction, the Court sends a message to the domestic courts on the speed at which they must operate – something difficult to implement in cases concerning many complex and moving parts.