March 07, 2023
By Nadia Rusinova
The recent judgment in Veres v. Spain once more revolves around the time factor in proceedings related to child abduction. It concerns the violation of the father’s right to respect for his family life under Article 8 of the ECHR (hereinafter: the Convention). It demonstrates the detrimental effect of judicial delays especially when it comes to an excessive length at the stage of recognition and enforcement in child-related proceedings.
The applicant is the father of Z, a girl born in 2006 in Budapest, Hungary. They all lived together until 2015, when the mother moved to her parents’ home with the child, then 9 years old, and applied to the Budapest Court for custody over Z.
Later in 2015, while custody proceedings were still pending in Hungary, the mother moved with Z. to Palma de Mallorca, Spain, without informing the father, who requested the Hungarian court hearing the custody dispute to adopt interim measures. In April 2016 the Budapest court adopted three interim measures, to be applied until the final judgment was given: the establishment of Z.’s residence at her mother’s home in Hungary; the obligation for the mother to bring the child back to Hungary within eight days; and the obligation for the mother to prove the registration of Z. in a school in Hungary within the same period.
On 1 July 2016 the applicant applied to the Palma de Mallorca Civil Court for recognition and enforcement in Spain of the interim decision of the Hungarian court, without being able to prove that it had become final and enforceable. The court dismissed the father’s application, ruling that the decision was not enforceable in Spain on two separate grounds: first, Article 23 (b) of Brussels IIa Regulation, requiring that Z. be given an opportunity to be heard before the Budapest Court, had not been complied with, and second – that such omission ran counter to the principle of the child’s best interests as recognised under the Spanish law.
The appellate court overturned the first-instance court’s judgment and declared the decision enforceable. On 19 July 2018 the Spanish Supreme Court, after the final appeal lodged by the mother, accepted the findings of the appellate court and the judgment became final with immediate effect.
One month later the father applied to the Spanish Court for the enforcement of the Hungarian Courts’ decision. The Court accepted the enforcement request and ordered the mother to take Z. back to Hungary within eight days, to establish Z.’s residence in Hungary and to register her in a school in Hungary. On 1 November 2018 the mother travelled to Hungary with Z, where the custody proceedings continued, resulting in custody over Z. being assigned to the mother and visiting rights to the father. The final decision mainly relied on the fact that the child had been living with the mother for several years and that her relationship with the mother was closer than that with the father.
Relying on Article 6 § 1 and Article 8 of the Convention, the father complained that the recognition and enforcement proceedings in Spain aimed at returning his daughter back to Hungary had not complied with the ‘reasonable time’ requirement, thus interfering with his right to respect for his family life, as his relationship with his daughter had been interrupted for a period of more than two years.
The European Court of Human Rights (hereinafter: the Court) considered that the issues raised in the case should be examined solely from the perspective of Article 8 of the Convention. As Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. It held that there has been a violation of Article 8 as the proceedings for the recognition of the Hungarian judgment lasted about two years – from 14 September 2016, when the application had been declared admissible, until 1 November 2018, when the enforcement phase was completed.
The Court found that the overall length of the proceedings was not justified in the circumstances of the case. It took the Spanish courts more than two years to enforce the decision of the Hungarian Court, even though it should have been recognised and enforced in Spain without delay in accordance with the Brussels IIa Regulation. Spain therefore failed to deal with the case in an expeditious manner as required by the Convention in this type of disputes, and awarded EUR 24,000 in respect of non-pecuniary damage to the applicant.
This ruling is not an anomaly in the Court’s corpus of cases concerning child abduction. However, it is interesting in two aspects. First, it is another illustration of how the Convention system can lend support to the obligation on EU Member States to comply with EU law, and second, it emphasises the importance of the fair and streamlined process at the stage of actual enforcement of decisions concerning children.
In regard to the first aspect, the Court reiterated on multiple occasions that the Convention must be applied in accordance with the principles of international law, in particular with those relating to the international protection of human rights (for example Show v. Hungary, § 68). Consequently, the positive obligations that Article 8 lays on the Contracting States in the matter of reuniting a parent with his or her children must be interpreted, in the present case, in the light of the general principles and aims of the Brussels IIa Regulation and the 1980 Hague Child Abduction Convention.
On the second point, this case portrays the typical sad picture of international child abduction, with a multitude of legal issues around it. Three main ones will be discussed here not only in light of Article 8 but also in light of the newly introduced rules of Brussels IIb Regulation and the improvements they are meant to bring in international family disputes. They concern the importance of the time factor in child abduction proceedings, the required swiftness and efficiency when the case concerns return proceedings under different legal grounds, and the provisional enforcement as a preventive remedy.
It is at the heart of the summary nature of the return proceedings that any unnecessary delay must be avoided in order not to compromise the child’s welfare. The courts must act swiftly and the available procedural framework should facilitate the expeditious and efficient conduct to ensure effective protection of the right to respect for family life. It is not enough for the available proceedings to follow the usual pattern of enforcement proceedings – they must contain specific rules or mechanisms to ensure particular speediness. In addition, the authorities must have appropriate means at their disposal to ensure that contact between the parent who has been left behind and the child (if broken) is re-established and maintained while the proceedings are pending. Finally, the officials involved must apply the most effective and, at the same time, the least restrictive enforcement measure, and should try to do everything possible to ensure the well-being of the child throughout the entire enforcement procedure.
Without overlooking that the enforcement proceedings have to protect the rights of all those involved, with the interests of the child being of paramount importance, it must be noted that it is in the nature of such proceedings that the lapse of time risks to compromise the position of the non-resident parent irretrievably (for example, Lópes Guió v. Slovakia, § 109). Moreover, as already stated in X. v. Latvia (§§ 96-97), as long as the return decision remains in force, the presumption stands that return is also in the interests of the child.
In this case it is notable that the applicant did not bring proceedings before the Spanish courts under the 1980 Hague Child Abduction Convention or under Article 11 of the Brussels IIa Regulation, but under Articles 21 et seq. of the latter instead, with the aim of securing the recognition and enforcement of the Hungarian judgment. He did not initiate the classic ‘Hague return’ proceedings, since he already had the return of the child granted in the form of the interim measure within the custody dispute by the Hungarian court. Is it then the case that the distinction between the Hague child abduction proceedings and the enforcement application of the return order under the general rules of the Regulation decisive as to the required swiftness?Following the argumentation of the Court, the answer to this question should be to the negative.The Court points out that unlike the proceedings brought under the 1980 Hague Convention or Article 11 of the Brussels IIa Regulation, where domestic courts are required to rule on a case no later than six weeks after an application has been lodged, neither the Brussels IIa Regulation nor the domestic law sets out a specific time-limit for the national courts to rule on the recognition of a parental responsibility judgment given in another EU Member State (and this is still the case in the Brussels IIb Regulation). However, it still notes that Article 31 of the Brussels IIa Regulation clearly states that the court is to give its decision without delay. Accordingly, the domestic courts are expected to deal swiftly with return proceedings under that Regulation, regardless of the avenue chosen by the applicant, simply to serve the main purpose of a return decision.
This approach is in line with the earlier case law of the Court. As noted in M.A. v. Austria (§ 136), specific streamlined proceedings may be required for the enforcement of return orders – be it under the Hague Convention or under the Brussels IIa Regulation. This is necessary for a number of reasons, the main ones relating to the need to ensure the welfare of the child and the possibility of maintaining a relationship with both parents, which is particularly at stake in these cases. The interpretation of the applicable provisions takes into account not only their wording and the context of each provision, but also the objective of the rule as a whole and the compliance of the decisions with the fundamental rights at stake.
In line with the abovementioned arguments, the European legislator has recently made one big step further. It concerns the Brussels IIb Regulation and the major novelty introduced by it – the abolition of exequatur for all decisions concerning parental responsibility (not only for the ‘privileged’ ones as envisaged by Brussels IIa Regulation). A return decision (granted in a custody dispute), like the one that the applicant tried to enforce in Spain, is without doubt a ‘decision concerning parental responsibility’ within the meaning of Article 2(1) of this Regulation. Therefore, it does not require a declaration of enforceability. As mentioned in the Preamble (Recital 58), the aim of making cross-border litigation concerning children less time consuming and costly justifies the abolition of the declaration of enforceability or the registration for enforcement, as applicable, prior to enforcement in the Member State of enforcement.
It follows that enforcing the return of the child granted within a parental custody dispute might not be less effective in this new setting than a return order issued under the Hague Convention. If the applicant would have had to enforce the interim decision now, under the Brussels IIb Regulation, it would be automatically enforceable in Spain under Article 34 (1), as far as it is enforceable in Hungary as the state of origin, and perhaps the outcome would be much more favourable for the father but also for the child. The father would not have had to spend 2 years in costly and emotionally burdening litigation, with the passage of time ultimately settling the dispute itself – as mentioned above, the Hungarian Court granted the custody over the child Z. to the mother and visiting rights to him, in view of the fact that the child had been living with the mother for several years and that her relationship with the mother was closer than that with the father (emphasis added).
It is worth to note that this outcome of the custody proceedings again proves the irreversible consequences of judicial delays in child abduction cases. In the recent judgment of G.K. v. Cyprus, the Court stated that ‘the aim of the Hague Convention is to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she unilaterally created. Hence, the abducting parent cannot benefit from his or her own wrongdoing’ (§ 53). However, even when the proceedings are not under the Hague Convention but still concern wrongful removal of the child, family courts should be alert and give proper consideration to the parties’ behaviour.
Was it expected from the applicant to request provisional enforcement of the return decision? The Government argued that the applicant had not exhausted all available remedies as he should have brought provisional enforcement proceedings in order to expedite the return of his daughter to Hungary. The Court, however, is not convinced about the effectiveness of such a request, and rightfully notes that even when possible under the national law, Brussels IIa Regulation does not contain any provisions regarding the possibility of provisionally enforcing a judgment given in an EU Member State while the proceedings for a declaration of enforceability are still pending in the Member State of enforcement. Furthermore, the Court noted that not only is it questionable whether provisional enforcement could be seen as an effective remedy to be used to expedite the proceedings, but it additionally entails the risk that in the event that the enforced decision is subsequently overruled, it might be necessary to undo what had been provisionally enforced. Therefore, the applicant cannot be criticised for not attempting to use this remedy.
Would it be different if the applicable instrument was not Brussels IIa Regulation, but the Recast – Brussels IIb Regulation? No, to the extent that the applicant pursued the recognition and enforcement of the Hungarian judgment in the custody proceedings. A notable improvement has been introduced with the Brussels IIb Regulation in this regard. However, it only concerns return orders issued in the Hague Convention proceedings, which according to Article 27(6) may be declared provisionally enforceable, even when not final, given the return of the child before the appeal decision is required by the best interests of the child principle. Indeed, in terms of the concerns that the Court noted regarding such provisional enforcement and subsequent overruling of the return decision, the Regulation envisages appropriate safeguards in Article 56. The enforcement of the return order may be suspended if it exposes the child to a serious risk of physical or psychological harm due to temporary impediments that have arisen after the judgment has been rendered. Moreover, if a serious risk for the child is considered to be of a lasting nature, then the enforcement may be refused.
Finally, there is another question that the facts of the case are silent about: what would the evaluation be had the father requested visiting (access) rights as an interim measure, together with the three granted ones. It looks like such access rights were rather surprisingly not at all discussed and also not granted until the final custody decision of the first instance court in 2018. If he would have had visiting rights, it would have been indeed possible to apply for its provisional enforcement under Article 40 of the Brussels IIa Regulation, which could in turn influence to a high extent the outcome of the case.
The enforcement of return decisions and orders looks like a sort of jigsaw puzzle – how does one make it swift, effective, cost-efficient, and child-friendly at the same time? Are the Hague Convention, Brussels II regime and Article 8 ECHR working well together to serve this purpose? Many factors may play a role together here: unexplained delays and lack of communication on the side of the enforcement authorities, obstructive behaviour or the misuse of the appeal system by the abducting parent to delay enforcement, as well as others. This leads to irreversible damage to the relationship between the parent and the child. The message is clear, and it is not a new one for everyone involved in cross-border family litigation – obtaining a child return decision no matter under which legal ground is only half of the victory, as the enforcement traditionally remains a particularly challenging part of the proceedings.
It is worth noting in this context that the efficiency and swiftness at the enforcement stage of child abduction proceedings are back on the EU agenda as well. On 26 January 2023 the European Commission sent a letter of formal notice to Poland for failure to fulfil its obligations under the Brussels IIa Regulation. This infringement case concerns the non-conformity of the Polish law with the Brussels IIa Regulation, specifically the provisions relating to the enforcement of judgments or orders that require the return of abducted children to their place of habitual residence. The Commission considers that there is a systematic and persistent failure of Polish authorities to speedily and effectively enforce judgments ordering the return of abducted children to other EU Member States.