Verhoeven v. France – Reconciling private international law and children’s rights law in international child abduction cases remains a difficult task

By Dr. Tine Van Hof

On the 28^th of March 2024, the European Court of Human Rights rendered a judgment in the case of Verhoeven v. France (application no. 19664/20). This case concerns Ms Verhoeven, who abducted her son from Japan to France. The French courts ordered the return of the child based on the 1980 Hague Child Abduction Convention. According to the applicant, the French courts hereby violated her right to family life under Article 8 ECHR. The Court held by six votes to one that there has not been a violation.

To  reach this decision, the Court applied the general principles regarding international child abduction cases from its X v. Latvia judgment. In this judgment, the Court introduced a framework to reconcile the Abduction Convention’s goals (i.e. deterrence and prompt return) and the UN Convention on the Rights of the Child’s concept of the child’s best interests as read into the ECHR (i.e. the best interests of the child must be a primary consideration in every case). While the framework (discussed in the judgment section below) seems indeed apt to reconcile the private international law and human (or children’s) rights law instruments, the Verhoeven v. France judgment shows that tension can nevertheless remain.

Facts

Ms Verhoeven, a French national, marries K., a Japanese national. They decide to live together in Japan, where their child was born in June 2015. In July 2017, Ms Verhoeven travelled to France together with her son for the holidays. In September 2017, she informed K. that she intends to stay there and filed for a divorce. In October 2018, K. took the necessary steps to institute return proceedings under the Abduction Convention for the return of his son to Japan. The case was brought before the First Instance Court of Montpellier, the Court of Appeal of Montpellier, the Court of Cassation, the Court of Appeal of Toulouse, and eventually again before the Court of Cassation.

Before the First Instance Court and the Courts of Appeal, the mother opposed the return of the child based on two exceptions to the principle of prompt return provided for in the Abduction Convention. First, she claimed that the father acquiesced in the retention of the child in France (Article 13(1)(a) Abduction Convention). The courts did not find such an acquiescence to be proven and dismissed the claim. Second, Ms Verhoeven claimed that the return to Japan would expose the child to a grave risk because of (i) domestic violence of the father against the mother, and (ii) the young age of the child and the fact that she is his primary caregiver (Article 13(1)(b) Abduction Convention). The courts dismissed the claim regarding domestic violence (i) because of a lack of evidence. The mother’s claim that a separation between her and the child would lead to a grave risk for the child (ii) was also dismissed. The Courts of Appeal pointed out that the child was born in Japan, had lived there until the illicit retention, knows the father, and the mother does not prove that she is unable to return together with the child and remain in Japan for the duration of the proceedings on the merits.

The proceedings before the Court of Cassation revolved around the mother’s complaint that the Court of Appeal did not investigate whether, if she would return to Japan with the child, the application of Japanese law would lead to a deprivation of her parental rights and a complete rupture of her relationship with the child. The Court of Cassation quashed the judgment for this reason and sent the case to the Court of Appeal of Toulouse. Before this court, the French public ministry clarified that, according to Japanese law, only one of the parents retains custody of the child after divorce. In case of binational couples, as is the case at hand, custody is quasi-automatically given to the Japanese parent. The other parent could be granted access rights, but Japanese law does not foresee a mechanism to enforce them. The Japanese visa regulations are also very restrictive so that the applicant, once divorced, would only be able to reside in Japan if granted exclusive custody, which is very unlikely.

The Court of Appeal of Toulouse rejected this complaint by referring to the fact that Japan has signed and ratified the Abduction Convention and France did not make reservations to the accession of Japan. Therefore, the court stated that ‘there can be no prejudging, at this stage of the proceedings, of the legal situation likely to be created by divorce proceedings in Japan, especially as mediation is a prerequisite in such proceedings and Japanese law also offers the possibility of organising a divorce by mutual consent’.

The mother appealed again to the Court of Cassation on the same ground. This time the Court of Cassation referred to Article 3(1) UNCRC and the fact that exceptions to return provided for in the Abduction Convention must be assessed in the light of the child’s best interests (in line with the framework introduced by the ECtHR in X v. Latvia, see below). The Court of Cassation found that the Court of Appeal of Toulouse did rule in consideration of the child’s best interests and dismissed the appeal.

Judgement

The ECtHR starts by referring to its X v. Latvia judgment. As mentioned above, in this judgment the Court introduced a framework to ensure a harmonious application of the ECHR and the Abduction Convention. The decisive point is to strike a fair balance between all the interests at stake, taking into account that the best interests of the child are of primary consideration and that the Abduction Convention’s objective of prompt return corresponds to a specific conception of those best interests. To strike this fair balance, national courts must genuinely take into account the factors that could constitute an exception to return under the Abduction Convention and make a sufficiently reasoned decision in this regard. The Court recaps that the exceptions have to be interpreted strictly.

Thereafter, the Court examines whether the national courts met these requirements for all the points that were raised during the national proceedings, namely (i) the acquiescence of the father, the grave risk for the child because of (ii) the alleged violence, (iii) the child’s young age and role of the mother as primary caregiver, and (iv) the possibility that the application of Japanese substantive law will lead to a rupture of the mother-child relationship. Regarding the claim of acquiescence (i) and the claim that the separation between the mother and the child would lead to a grave risk (iii), the Court concludes that the national courts have met the requirements. The Court comes to the same conclusion regarding the claim of domestic violence (ii).

While the Court’s analysis of the first three claims does not lead to much excitement, the Court’s analysis of the fourth claim shows that tension can remain between the goals of the Abduction Convention and the best interests of the child as stated in the UNCRC despite the framework introduced in X v. Latvia. On the one hand, the Court acknowledges that the applicant’s concerns about Japanese law are legitimate and that the French courts’ reasons for dismissing her claim do not fully meet these concerns. On the other hand, the Court concludes that, with the judgment of the Court of Appeal of Toulouse, the French courts fulfilled their procedural obligations under Article 8 ECHR to genuinely consider the factors that could constitute an exception to return under the Abduction Convention and to make a sufficiently reasoned decision in this regard. Consequently, the Court did not find a violation of the said Article.

The Court provides four reasons for this conclusion. First, the Abduction Convention prohibits substantive issues relating to custody or the exercise of parental rights from being determined by national authorities in the context of return proceedings. Secondly, the French courts took their decision in full knowledge of the facts, taking into account both the information provided by the public prosecutor’s office on the situation in Japan and the information provided by the competent Japanese authorities. Third, the French courts pointed to the mediation that took place between the parents at the time of their decision as an important factor which should not be underestimated in relation to the interests of the child. Fourth, the French courts insisted on Japan’s status as a contracting party to the Abduction Convention, and refused to prejudge the legal situation that would result from opening divorce proceedings in that country.

Commentary

Judge Mits disagrees with the judgment and asks the following question in his dissenting opinion: ‘If the Hague Convention had instead offered an equal choice between the two solutions, i.e. the return of the child to his father or the acceptance of his removal to his mother’s side, would the best interests of the child, as enshrined in Article 8 of the Convention, really argue in favour of return?’

The logic of the Abduction Convention

Such a question, however, is exactly what the drafters of the Abduction Convention wanted to avoid. Before this Convention entered into force, decisions concerning international child abduction were based on a case-by-case analysis of the child’s best interests similar to the approach followed in custody proceedings. After such lengthy proceedings domestic judges were often reluctant to order the return of the child. The drafters thus aimed to protect children from the harmful effects of the abduction and to assure that the actions of the abducting parent would not lead to any legal consequences. To reach these aims, they built the Convention upon the principle of the prompt return of children to their State of habitual residence. A prompt return of the child to the State of habitual residence, and thus a return of the case on the merits to the courts of the State of habitual residence, is considered in children’s best interests. The underlying idea is that the child’s best interests are the decisive criterion in the custody proceedings and that by returning the child so that those proceedings can take place, the Abduction Convention ensures respect for those best interests.

The drafters of the Abduction Convention also provided exceptions to this principle of prompt return to cater to situations in which the in concreto interests of a child do not coincide with the in abstracto interest of children to promptly return to the State of habitual residence after an abduction. Nevertheless, the return of the child remains the principle. As Pérez-Vera points out in the Explanatory Report, the Abduction Convention as a whole is based on the ‘unanimous rejection’ of international child abduction and on the conviction that a refusal to legally recognise this is the best way to combat it. This requires that each State acknowledges that the State of habitual residence of the child is best placed to decide on the merits. Systematically granting exceptions to the principle of prompt return would lead to the collapse of the Abduction Convention’s structure since this convention is based on mutual confidence. 

As the Court of Appeal of Toulouse has pointed out, by accepting the accession of Japan to the Abduction Convention, France has accepted to apply this underlying logic also in relation to that State. Not applying the Convention based on a value judgment of Japanese substantive law regarding parental rights and regarding the interpretation of the child’s best interests in that regard would undermine the goal of the Convention.

The logic of the UNCRC

At the same time, both France and Japan are Contracting Parties of the UNCRC, which the ECtHR reads into Article 8 ECHR when children’s rights are concerned. According to Article 3(1) UNCRC, the best interests of the child should be taken into account as a primary consideration in all actions concerning the child. The Committee on the Rights of the Child has clarified in its General Comment no. 14 that one of the aims of the child’s best interests concept is to ensure ‘the full and effective enjoyment of all the rights recognized in the Convention’. This means inter alia that the interpretation and implementation of the best interests concept must be in line with all the rights provided in the Convention.

If we then look at the other rights protected by the UNCRC, Japanese law and its application in practice do not seem in line with Article 9(3) UNCRC. This Article entails the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis. If custody rights are given exclusively to one parent, it is important that the other parent has access rights. Although this is the case in Japan, Japanese law has no mechanism to enforce these rights, so in practice they may remain without consequence. Further, Japan does not provide visas for parents of Japanese children, only when they have exclusive custody. It thus seems impossible for children living in Japan to maintain personal relations and direct contact with their non-Japanese parent after a divorce.

The underlying assumption of the Abduction Convention, namely that the child’s best interests are the decisive criterion in the custody proceedings and that by returning the child so that those proceedings can take place the Convention ensures respect for those best interests, cannot be maintained for situations as the one at hand. While Japan might argue that its substantive law is putting the child’s best interests at the forefront, the interpretation and implementation of that concept in Japan is not in line with the UNCRC.

Conclusion

With this judgment, the ECtHR does not undermine the value of the framework introduced in X v. Latvia to reach a combined and harmonious application of both private international law and children’s rights law instruments. Rather, Verhoeven v. France shows that such a harmonious application is not possible if both States involved in the abduction do not fulfil the basic prerequisites of both the private international law and children’s rights law instruments. Indeed, in this case, it is not the application of the Abduction Convention’s principle of prompt return in itself that leads to a violation of the child’s best interests. The violation of children’s rights lies in the fact that the domestic substantive law is contrary to the UNCRC and that, as a result of the return, the domestic courts will have to base its decision on the merits on this flawed law.

Rather than not applying one or the other instrument, both of which have their merits, the solution seems to lie in a political or diplomatic debate to convince Japan to rethink their substantive rules on custody, access rights, and visas for parents of Japanese children. As is clear from the judgment, such a debate is already ongoing. The European Parliament adopted a Resolution in which it ‘called on Japan to improve its domestic legal framework and its effective implementation so as to ensure the respect of […] Japan’s international commitments, such as the UNCRC and the 1980 Hague Convention’.