The whole object behind orders for the summary return of abducted children is that the children should be quickly returned to their ‘home’ country, so that the courts of the home country can then make decisions as to the children’s future (which parent they should live with, and where, etc.). This, of course, requires the courts of the country to which the children have been abducted to deal with the matter expeditiously, not just in making the return order but also in enforcing it if necessary. Unfortunately, this is not always the case.
It was not the case for the father in the recent European Court of Human Rights (ECHR) judgment Mansour v Slovakia.
The facts of the case can be stated very briefly. The father was Irish. He married a Slovakian national and they settled in Ireland. Their two children, born in 2006 and 2008, are both Irish nationals. On 6 January 2011 the mother travelled to Slovakia with the two children and they have not returned to Ireland since.
The father quickly commenced proceedings in the Slovakian courts for the return of the children, on 31 January 2011. On 1 July 2011 the Slovakian court ordered the return of the children to Ireland. The order became enforceable on 8 July. The mother appealed, but her appeal was unsuccessful, and the Slovakian court made a further return order on 26 October 2011.
The mother failed to comply with the order and in February 2012 the father applied for the order to be enforced.
I will not go into the details of what happened next, as they appear to be specific to the Slovakian legal system, and perhaps even as that system was operating at that time. Suffice to say that the Slovakian court did not enforce the order for technical reasons. The father challenged that decision, and his challenge was upheld by the Slovakian Constitutional court in May 2015.
The enforcement proceedings were then resumed. However, unsurprisingly, the Slovakian court found in April 2016 that the children had by then become settled in Slovakia, and that their return to Ireland would therefore be contrary to their best interests. Accordingly, the return order was not enforced.
The father made an application to the ECHR, complaining that by not enforcing the return order the Slovakian courts had failed to secure his right to respect for his family life, in violation of Article 8 of the European Convention on Human Rights.
The ECHR agreed. The primary issue in the case was the passage of time, which resulted in the children being settled in Slovakia before the return order was enforced. The ECHR found that the Slovakian authorities were responsible for that delay, and accordingly the procedures employed by the Slovakian authorities “fell short of the requirements inherent in its positive obligation to secure to the applicant his right to respect for his family life under Article 8 of the Convention.” In other words, there been a violation of Article 8.
The ECHR awarded the father damages of 10,000 euros, the full amount of his claim, plus five thousand four hundred euros in respect of costs and expenses.
Of course, compensation alone does not help the father when it comes to securing the return of the children to Ireland. The ECHR therefore pointed out that “a more rigid approach is called for, which obliges States to put into place a remedy which is at the same time preventive and compensatory”. Without this, it said, “the State’s positive obligation to take appropriate measures to ensure an applicant’s right to respect for his or her family life risks becoming illusory”. I assume that this is, in effect, a warning to the Slovakian authorities that they need to ensure that their procedures are effective to ensure that in future failures to enforce return orders are promptly dealt with.
As I indicated at the beginning of this post, the basic idea behind return orders is that the best place for decisions to be made about the welfare of children is the court of their home country. It is for that court to decide where the children should live, not the court of the country to which the children have been abducted. That is why return orders will usually be made, unless there are some exceptional circumstances. If a return order is not swiftly enforced, then the whole idea behind such orders is thwarted.
The full report of the case can be found here.