CASE

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Case Name

A.B. v. Poland, Application No. 33878/96

INCADAT reference

HC/E/PL 943

Court

Name

European Court of Human Rights, 2nd Section

Level

European Court of Human Rights (ECrtHR)

Judge(s)
F. Tulkens (présidente); A.B. Baka, I. Cabral Barreto, V. Zagrebelsky, A. Mularoni, L. Garlicki, D. Popovic (juges)

States involved

Requesting State

CANADA

Requested State

POLAND

Decision

Date

20 November 2007

Status

Final

Grounds

Issues Relating to Return

Order

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HC article(s) Considered

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HC article(s) Relied Upon

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Other provisions
Arts 6(1), 8 ECHR
Authorities | Cases referred to
Garcia Ruiz c. Espagne, arrêt du 21 janvier 1999, Recueil des arrêts et décisions 1999-I, 118; Olsson c. Suède (no 1), arrêt du 24 mars 1988, série A no 130, p. 32; Hokkanen c. Finlande, arrêt du 23 septembre 1994, série A no 299-A, p. 20; Keegan c. Irlande, arrêt du 26 mai 1994, série A no 290, p. 19; Ignaccolo-Zenide c. Roumanie, no 31679/96, § 94, CEDH 2000-I; Nuutinen c. Finlande, no 32842/96, § 127, CEDH 2000-VIII; Streletz, Kessler et Krenz c. Allemagne [GC], nos 34044/96, 35532/97 et 44801/98, § 90, CEDH 2001-II, Al-Adsani c. Royaume-Uni [GC], no 35763/97, § 55, CEDH 2001-XI; Eskinazi et Chelouche c. Turquie (déc), no 14600/05, ECHR 2005.
Published in

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INCADAT comment

Implementation & Application Issues

Procedural Matters
Enforcement of Return Orders

Inter-Relationship with International / Regional Instruments and National Law

European Convention of Human Rights (ECHR)
European Court of Human Rights (ECrtHR) Judgments

SUMMARY

Summary available in EN | FR

Facts

The application related o a child born in Canada in 1988 to Polish parents. The parents had relocated to Canada in 1985. In 1991 they separated and the child, a girl, returned to Poland where she was cared for by the paternal grandparents. Some time thereafter the mother took the child back to Canada.

In 1992 the father returned to live in Poland. In 1993 the mother was awarded sole custody by a Canadian court. The child returned to Poland regularly to visit her maternal grandparents. In September 1995 she was abducted by the father from Warsaw airport.

The mother issued a return petition under the 1980 Hague Convention. On 13 December 1995 a court of first instance ordered the return of the child. This decision was upheld on appeal in March 1996. Attempts were then made to enforce the return order.

In July 1997 the Warsaw district court striped the father of his parental authority, a decision which was upheld on appeal in April 1998. Further attempts were made to enforce the return order. In June 1998 the Warsaw district court ordered the provisional imprisonment of the father because of his refusal to comply with the return order.

The father then issued a legal challenge before the Supreme Court of the decision to remove his parental authority. This was upheld on 1 October 1998 with the matter being remitted to a court of first instance for determination. In December 1998 the order for the imprisonment of the father was struck out.

In May 1999 the decision to strip the father of his parental authority was annulled and the matter remitted to a court of first instance. The enforcement of the return order was also suspended. The same month the Canadian embassy in Warsaw requested the extradition of the father, but this was subsequently declined.

In April 2000 the father was again striped of his parental authority, this decision was upheld on appeal. In July 2000 the Warsaw district court lifted the suspension of the return order. In February 2001 the arrest of the father was re-ordered.

In the late Spring of 2003 father and daughter were apprehended and the child was taken into public care. On 10 June her views were then gathered for the first time. She stated that she wished to remain with her father. A meeting was then arranged with the mother, but this ended when the girl attempted to jump out of a window. The mother then withdrew her request for the return of the child.

On the basis of the child's statements the decision to remove the father's parental authority was then annulled. On 22 June the mother went back on her decision not to seek the return of the child, on the basis that she could grant the child emotional stability.

On 11 December the Warsaw regional court ordered that the child be placed with the paternal grandparents. In May 2004 the Ministry of Justice advised the Ministry of Foreign Affairs that in the light of the child having reached the age of 16, the Hague Convention was no loner applicable. The father's petition was lodged with the Commission on Human Rights in September 1996.

Ruling

The Court ruled unanimously that there had neither been a breach of Article 8 (right to family life) nor Art 6(1) (right to a fair trial) in the manner in which the Polish authorities had processed and sought to enforce the order providing for the return of the abducted child to her State of habitual residence.

Grounds

Issues Relating to Return

Removal of Father’s Parental Authority The father argued that the decision to strip him of parental authority and the maner in which attempts were made to enforce the return order were such to breach his right to family life under Art 8 of the ECHR. The Court accepted that the removal of the father’s parental authority was indeed an interference with his family life, the issue was whether this was necessary within a democratic society. The Court noted that the primary motivating factor for this decision was the refusal of the father to comply with the return order and that the national authorities had also taken into account the father’s personal situation. Furthermore the father had not allowed his daughter to live a normal life, she had not attended school or had contact with other children of her own age. The decision was therefore justified and there was no breach of Article 8. Enforcement The Court recalled its previous case law on enforcement and rejecting the father’s submission held that the steps taken were justified by the interests of justice and the protection of the mother’s rights.

INCADAT comment

Enforcement of Return Orders

Where an abducting parent does not comply voluntarily the implementation of a return order will require coercive measures to be taken.  The introduction of such measures may give rise to legal and practical difficulties for the applicant.  Indeed, even where ultimately successful significant delays may result before the child's future can be adjudicated upon in the State of habitual residence.  In some extreme cases the delays encountered may be of such length that it may no longer be appropriate for a return order to be made.


Work of the Hague Conference

Considerable attention has been paid to the issue of enforcement at the Special Commissions convened to review the operation of the Hague Convention.

In the Conclusions of the Fourth Review Special Commission in March 2001 it was noted:

"Methods and speed of enforcement

3.9        Delays in enforcement of return orders, or their non-enforcement, in certain Contracting States are matters of serious concern. The Special Commission calls upon Contracting States to enforce return orders promptly and effectively.

3.10        It should be made possible for courts, when making return orders, to include provisions to ensure that the order leads to the prompt and effective return of the child.

3.11        Efforts should be made by Central Authorities, or by other competent authorities, to track the outcome of return orders and to determine in each case whether enforcement is delayed or not achieved."

See: < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" and "Conclusions and Recommendations".

In preparation for the Fifth Review Special Commission in November 2006 the Permanent Bureau prepared a report entitled: "Enforcement of Orders Made Under the 1980 Convention - Towards Principles of Good Practice", Prel. Doc. No 7 of October 2006, (available on the Hague Conference website at < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" then "Preliminary Documents").

The 2006 Special Commission encouraged support for the principles of good practice set out in the report which will serve moreover as a future Guide to Good Practice on Enforcement Issues, see: < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" then "Conclusions and Recommendations" then "Special Commission of October-November 2006"


European Court of Human Rights (ECrtHR)

The ECrtHR has in recent years paid particular attention to the issue of the enforcement of return orders under the Hague Convention.  On several occasions it has found Contracting States to the 1980 Hague Child Abduction Convention have failed in their positive obligations to take all the measures that could reasonably be expected to enforce a return order.  This failure has in turn led to a breach of the applicant parent's right to respect for their family life, as guaranteed by Article 8 of the European Convention on Human Rights (ECHR), see:

Ignaccolo-Zenide v. Romania, No. 31679/96, (2001) 31 E.H.R.R. 7, [INCADAT cite: HC/E/ 336];

Sylvester v. Austria, Nos. 36812/97 and 40104/98, (2003) 37 E.H.R.R. 17, [INCADAT cite: HC/E/ 502];

H.N. v. Poland, No. 77710/01, (2005) 45 EHRR 1054, [INCADAT cite: HC/E/ 811];

Karadžic v. Croatia, No. 35030/04, (2005) 44 EHRR 896, [INCADAT cite: HC/E/ 819];

P.P. v. Poland, No. 8677/03, 8 January 2008, [INCADAT cite: HC/E/ 941].

The Court will have regard to the circumstances of the case and the action taken by the national authorities.  A delay of 8 months between the delivery of a return order and enforcement was held not to have constituted a breach of the left behind parent's right to family life in:

Couderc v. Czech Republic, 31 January 2001, No. 54429/00, [INCADAT cite: HC/E/ 859].

The Court has dismissed challenges by parents who have argued that enforcement measures, including coercive steps, have interfered with their right to a family life, see:

Paradis v. Germany, 15 May 2003, No. 4783/03, [INCADAT cite: HC/E/ 860];

A.B. v. Poland, No. 33878/96, 20 November 2007, [INCADAT cite: HC/E/ 943];

Maumousseau and Washington v. France, No. 39388/05, 6 December 2007, [INCADAT cite: HC/E/ 942].

The positive obligation to act when faced with the enforcement of a custody order in a non-Hague Convention child abduction case was upheld in:

Bajrami v. Albania, 12 December 2006 [INCADAT cite: HC/E/ 898].

However, where an applicant parent has contributed to delay this will be a relevant consideration, see as regards the enforcement of a custody order following upon an abduction:

Ancel v. Turkey, No. 28514/04, 17 February 2009, [INCADAT cite: HC/E/ 1015].


Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights has held that the immediate enforcement of a return order whilst a final legal challenge was still pending did not breach Articles 8, 17, 19 or 25 of the American Convention on Human Rights (San José Pact), see:

Case 11.676, X et Z v. Argentina, 3 October 2000, Inter-American Commission on Human Rights Report n°71/00, [INCADAT cite: HC/E/ 772].


Case Law on Enforcement

The following are examples of cases where a return order was made but enforcement was resisted:

Belgium
Cour de cassation 30/10/2008, C.G. c. B.S., N° de rôle: C.06.0619.F, [INCADAT cite: HC/E/BE 750];

Canada
H.D. et N.C. c. H.F.C., Cour d'appel (Montréal), 15 mai 2000, N° 500-09-009601-006 (500-04-021679-007), [INCADAT cite: HC/E/CA 915];

Switzerland
427/01/1998, 49/III/97/bufr/mour, Cour d'appel du canton de Berne (Suisse); [INCADAT cite: HC/E/CH 433];

5P.160/2001/min, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile); [INCADAT cite: HC/E/CH 423];

5P.454/2000/ZBE/bnm, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile); [INCADAT cite: HC/E/CH 786];

5P.115/2006/bnm, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile); [INCADAT cite: HC/E/CH 840].

Enforcement may equally be rendered impossible because of the reaction of the children concerned, see:

United Kingdom - England & Wales
Re B. (Children) (Abduction: New Evidence) [2001] 2 FCR 531; [INCADAT cite: HC/E/UKe 420];

United Kingdom - Scotland
Cameron v. Cameron (No. 3) 1997 SCLR 192; [INCADAT cite: HC/E/UKs 112];

Spain
Auto Juzgado de Familia Nº 6 de Zaragoza (España), Expediente Nº 1233/95-B; [INCADAT cite: HC/E/ES 899].


Enforcement of Return Orders Pending Appeal

For examples of cases where return orders have been enforced notwithstanding an appeal being pending see:

Argentina
Case 11.676, X et Z v. Argentina, 3 October 2000, Inter-American Commission on Human Rights Report n° 11/00 [INCADAT cite: HC/E/ 772].

The Inter-American Commission on Human Rights has held that the immediate enforcement of a return order whilst a final legal challenge was still pending did not breach Articles 8, 17, 19 or 25 of the American Convention on Human Rights (San José Pact).

Spain
Sentencia nº 120/2002 (Sala Primera); Número de Registro 129/1999. Recurso de amparo [INCADAT cite: HC/E/ES 907];

United States of America
Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. Va., 2003) [INCADAT cite: HC/E/USf 494].

In Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) [INCADAT cite: HC/E/USf 461] while it is not clear whether the petition was lodged prior to the return being executed, the appeal was nevertheless allowed to proceed.

However, in Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001) [INCADAT cite: HC/E/USf 909] an appeal was not allowed to proceed once the child was returned to the State of habitual residence.

In the European Union where following the entry into force of the Brussels IIa Regulation there is now an obligation that abductions cases be dealt with in a six week time frame, the European Commission has suggested that to guarantee compliance return orders might be enforced pending appeal, see Practice Guide for the application of Council Regulation (EC) No 2201/2003.

European Court of Human Rights (ECrtHR) Judgments