Court’s delay in Hague Convention case breaches father’s human rights

Family Law|July 21st 2016

All cases involving children should, of course, be dealt with as quickly as possible. However, there is a particular urgency with Hague Convention applications, where one parent seeks the summary return of a child that has been abducted by the other parent to another country. The basic idea of such applications is that the child is promptly returned to its ‘home’ country, and that arrangements regarding the child (i.e. residence and contact) should be dealt with by the courts of that country.

The requirement for urgency is written in to the Convention by Article 11, which specifically states that the court dealing with the application should “act expeditiously”. Article 11 goes on to state that if the court has not reached a decision within six weeks from the date of commencement of the proceedings, then the applicant has the right to request a statement of the reasons for the delay.

Hague Convention applications are, of course, made to the courts of the country to which the child has been abducted, and it is therefore those courts that are under the duty to secure the prompt return of the child. Sometimes, however, they fail in that duty by not dealing with the application in a timely fashion.

So it was in the recent European Court of Human Rights (ECHR) case G.N. v. Poland, which concerned an application by a father alleging that the Polish courts had breached his right to respect for his family life under Article 8 of the European Convention on Human Rights, by refusing to order the return of his child to Canada.

The facts of the case were that the father was Canadian by birth and the mother was Polish. They married in Canada in 2009 and their son was born there in September 2010. In April 2011 the family went to Poland on holiday. They agreed to return to Canada in July 2011 and aeroplane tickets were purchased to that end. However, the couple separated in May 2011 and the mother refused to return to Canada with the child.

In October 2011 the father lodged an application to have the child returned to Canada, under the Hague Convention. The application proceeded extremely slowly. In November 2012 the Polish court decided to obtain an expert report to assess whether there was a grave risk that the boy’s return abroad would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The experts concluded that “the child’s separation from his mother would disturb his sense of security, belonging and stability, and [that] it would be adverse to his development – in particular, psychological [development] – [and] it would be against his best interests. In view of the above, moving the child to his father’s care [posed] a grave risk to his emotional [and] social development, [and] could cause a situation [which] for a two-year-old child [would be] difficult to bear.”

The father’s Hague Convention application was dismissed by the Polish court in January 2013. The father appealed, but his appeal was also dismissed. The father then made his application to the ECHR.

The father made various submissions and allegations in his application, but I do not need to go into the details here. The ECHR found the Polish court at fault in the way it dealt with the application, but was particularly concerned about the length of time that the Polish court had taken to deal with the application. It said:

“…even though the six-week time-limit is non-obligatory under the Hague Convention, the Court considers that exceeding it by sixty-four weeks, in the absence of any circumstances capable of exempting the domestic courts from the duty to strictly observe it, does not meet the urgency of the situation and is not in compliance with the positive obligation to act expeditiously in proceedings for the return of children”

In the circumstances the ECHR concluded that the Polish authorities had failed to comply with their obligations under Article 8. The father was therefore awarded damages of 9,000 euros, plus costs.

The full report of the case can be found here.

Photo by Jordiet. via Flickr under a Creative Commons licence.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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