HC/E/PT 1166
Cour européenne des droits de l'homme
European Court of Human Rights (ECrtHR)
GERMANY
PORTUGAL
1 February 2011
Final
European Convention on Human Rights (ECHR)
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Portugal asserted that the interference was justified on the basis of the child's best interests, as enshrined in Regulation Brussels IIa (Regulation EC No 2201/2003 of the Council of 27 November 2003). The ECrtHR pointed out that while Article 8 "is designed mainly to protect individuals against improper interference by public agencies, it also creates affirmative obligations", in particular "a parent's entitlement to suitable measures to reunite him or her with the child and the obligation for the domestic authorities to take them".
It added, however, that "the obligation for domestic authorities to take measures for such purpose is not absolute, because reuniting one parent with his or her children having lived for some time with the other parent may not be possible immediately and require preparations. Their nature and extent depend on the circumstances of each case, but the understanding and cooperation of all parties involved are always an important factor.
While the domestic authorities should strive to facilitate such collaboration, an obligation on them to have recourse to coercion in such matters can only be limited: they must take into account the interests and rights and freedoms of those parties, and in particular the best interests of the child and the rights conferred on him or her by Article 8.
In the event that contacts with the parents are liable to threaten those interests or to infringe those rights, it is incumbent upon the domestic authorities to ensure that they are fairly balanced". Finally, it pointed out that the ECHR applies in agreement with the principles of international law and stressed that the affirmative obligations with respect to reuniting a parent and child are to be interpreted in the light of the Hague Convention and that genuine respect for family life required "the future relations between parent and child to be determined on the basis only of the relevant factors, and not by the mere passage of time".
Pointing out that the adequacy of a measure was to be appraised by the expeditiousness of its implementation, it considered whether the Portuguese authorities had taken all the measures that could reasonably be expected of them. It stressed that it had no jurisdiction to determine whether the removal was wrongful, and noted that its role was limited to considering whether the relevant rules were applicable, and whether their interpretation was consistent with the ECHR.
It stated that the Court of Appeal, on 9 January 2009, had held the child's retention to be wrongful but consistent with Article 13(1)(b) of the Hague Convention. It observed that after the mother had brought return proceedings in 2005, the lower Court had taken almost 3 months to rule on the application, whereas both Article 11 of the Hague Convention and Article 11(3) of the Brussels IIa Regulation allow no more than 6 weeks after the commencement of proceedings.
That same Court delivered its second judgment more than 8 months after receipt of the mother's deposition from Germany, so that the return proceedings had lasted 3 years and 10 months for two tiers of court proceedings. It had to be observed, in the Court's view, that "the duration of those proceedings created an unfavourable factual situation" for the mother since the child was aged under four at the time of the retention.
And the Court of Appeal had eventually based its decision on the time elapsed. It deduced that the Portuguese courts had "not exercised effective means to process expeditiously the two proceedings concerned". The mother's right had accordingly not "been protected effectively as required by the Convention".
Author of the summary: Aude Fiorini
Preparation of INCADAT commentary in progress.