BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
DECISION
Application no.
13420/12
M.R. and L.R.
against Estonia
The
European Court of Human Rights (First Section), sitting on 15 May
2012 as a Chamber composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Peer
Lorenzen,
Khanlar
Hajiyev,
Mirjana
Lazarova Trajkovska,
Linos-Alexandre
Sicilianos,
Erik
Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
regard to the above application lodged on 6 March 2012,
Having
regard to the interim measure indicated to the respondent Government
under Rule 39 of the Rules of Court,
Having
deliberated, decides as follows:
THE FACTS
- The
first applicant, Ms M.R., is an Estonian national who was born in
1981. The second applicant, Ms L.R., is an Estonian and Italian
national who was born in 2009. The President decided that their
identity should not be disclosed to the public (Rule 47 § 3).
The applicants live in Kõrveküla, Tartu County. They were
represented before the Court by Mr T. Pilv and Ms H.
Jürimäe, lawyers practising in Tartu.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicants and as they appear
from the documents on file, may be summarised as follows.
1. The background of the case
- The
first applicant met R., an Italian national and the father of the
second applicant, their daughter, during her studies in the
Netherlands. They developed a relationship and after completing her
studies she often stayed with R. in Arluno near Milan. On 30 June
2009 the second applicant was born in Italy. After the birth of the
child, relations between the parents deteriorated. According to the
first applicant she suffered mental abuse from R. Allegedly, R. had
only wished to bring the child up in accordance with Italian
traditions and with assistance from his parents, whereas the first
applicant’s opinions had been disregarded. R. had worked long
hours and had barely participated in taking care of the child.
- The
applicants travelled to Estonia on a number of occasions, including
for three weeks starting from 26 December 2010. Thereafter, they went
to Estonia on 2 March 2011 with R.’s consent. However, they did
not return to Italy on 11 March 2011, as had been agreed, but stayed
in Estonia.
2. Proceedings in Estonia
(a) Proceedings before the County Court
(i) The parties’ requests and the
course of the proceedings
- On
7 March 2011 the first applicant asked the Tartu County Court to
award her sole custody of the child.
- On
16 March 2011 R. travelled to Estonia. He wished to see the child but
refused to do so in a law firm, as proposed by the first applicant.
However, he met the first applicant who gave him the keys to his
apartment in Italy at his request.
- On
29 March 2011 R. made a request to the Italian Ministry of Justice
for the child’s return under the Hague Convention on the Civil
Aspects of International Child Abduction (“the Hague
Convention”). On 13 April 2011 the Italian authorities
forwarded the request to the Estonian Ministry of Justice and on 10
May 2011 it was sent to the Tartu County Court.
- The
County Court dealt with the requests of both parents in the same
proceedings. A hearing took place on 27 May 2011, with the
participation of the first applicant, R., the second applicant’s
State-appointed lawyer and a social worker from the Tartu rural
municipality where the applicants resided in Estonia. At the closure
of the hearing, the court announced that it would make its ruling
after the receipt of an opinion from the Italian child protection
services. The subsequent proceedings were conducted in writing.
- On
30 May 2011 the County Court issued a temporary injunction concerning
R.’s access rights to the child according to which he could
meet her in the presence of her mother and a third person of his
choice. This arrangement was later amended by the court so as to
enable the first applicant to be also accompanied by a person of her
choice during the meetings. R. met the child on four weekends between
May and July 2011. At least at some of the meetings both Italian and
Estonian psychologists were present. According to the first
applicant, R. subsequently ceased to show interest in the child.
- On 1 July 2011 the County Court notified the first
applicant that she had until 1 August 2011 to send them her written
submissions concerning R.’s claim for the return of the child
to Italy. It informed her of its intention to rule on the matter by
15 August 2011 at the latest. In her submissions the first applicant
referred to the need for several items of evidence yet to be received
(opinion of the Tartu rural municipality, medical expert opinion, and
additional information from the Italian authorities) and requested
the postponement of the County Court’s ruling until the receipt
of further evidence. She raised the issue of the child’s sexual
abuse by R. The first applicant also submitted to the court written
statements from a number of persons (her mother and other relatives,
friends, colleagues and a teacher) describing the relations between
the parties and R.’s abusive behaviour, as well as a
psychotherapist’s observations based on the first applicant’s
counselling. According to a note by a child psychiatrist the child
was restless and nervous and had sleep disorders; it was suggested
that the meetings with R. be conducted at home in a secure
environment.
- On 25 August 2011 the Italian Ministry of Justice
transferred to its Estonian counterpart a report by the Magenta
Children and Family Protection Centre. It was noted that no extensive
replies to the questions formulated by the Estonian authorities could
be given on the basis of the information gathered. The Italian
authorities had met R. and his parents and visited R.’s
residence. They had also met the first applicant’s music
teacher. It was noted in the report that R. had a controlling and
egocentric character and traits of dependence. Latent depressive
tendencies could be seen in R.’s family of origin where the
woman’s natural role was seen as that of taking care of
children, even at the expense of her professional self-fulfilment. A
family pattern of this kind could have also been established in the
relationship between R. and the first applicant and caused her
uneasiness. It was noted that R. had denied that his mother had been
treated for mood disorders, although this had been the case. Lastly,
it was noted that in order to conclusively answer the questions posed
it was necessary to assess both of the parents and to observe the
father’s relationship with the child.
- On 23 September 2011 a psychology expert drew up a
written opinion at the request of the County Court. She had met the
applicants on 1 and 5 September 2011. In response to the County
Court’s questions she noted that it was not possible to decide
on the issue of sexual abuse as alleged by the first applicant. In
respect of whether her transfer to Italy would cause her serious
mental suffering, the expert noted that the child needed a secure,
customary and stable environment, that she had a close attachment
relationship with her mother and that her separation from her mother
would definitely cause her serious mental suffering and could have a
serious life-long negative influence on her. At the age in question
the child and mother belonged together. Even if the mother could stay
in Italy without being prosecuted, she would be fully dependent on
the child’s father and at risk of mental and physical violence;
there would be a resurgence of the situation from which the mother
had escaped from Italy. Traumatisation of the mother would have a
negative effect on the child’s development. The expert
concluded that in these circumstances the return of the child to
Italy would cause her serious mental suffering and would definitely
not proceed from the child’s well-being and needs.
- On
28 September 2011 the first applicant submitted further written
observations and documentary evidence to the County Court and noted,
inter alia, that all the relevant circumstances had not been
established and that the court’s delivery of its ruling on the
matter should be postponed.
(ii) The County Court’s decision
- By
a decision of 7 October 2011 the Tartu County Court ordered the
second applicant’s return to Italy pursuant to the Hague
Convention. It established that the child had resided in Italy
together with her parents until 2 March 2011 and that this finding
was not affected by the first applicant’s argument that she had
only studied and temporarily lived in that country. The court further
established that the parents had joint custody of the child in Italy;
the father had consented to the child’s travelling to Estonia
but not to her settling in Estonia. The court found that the
retention of the child in Estonia was wrongful within the meaning of
Article 3 of the Hague Convention and that the father was entitled to
claim her return under Article 12. In respect of the question
whether the return of the child was excluded under Article 13 §
1 (b) of the Hague Convention, the court noted that it had to
consider the information concerning the child’s social
background provided by the central authority or other competent
authority of the child’s habitual residence. It referred to the
Estonian Supreme Court’s judgment of 6 December 2006, according
to which a child could only not be returned on the basis of Article
13 § 1 (b) of the Hague Convention if this would result in
extremely serious damage to the child’s well-being. Such
exceptional threat to the child’s well-being had to be
sufficiently specific and probable.
- The County Court considered that the second
applicant’s return to Italy would not cause her more suffering
than it would an average two-year-old. On the basis of evidence at
the court’s disposal (expert opinion by a psychologist and
information from the kindergarten) it could not be concluded that the
father had ill-treated the child or been violent towards the first
applicant. Nor could it be established on the basis of the
information provided by the Magenta child protection agency that the
child’s return to Italy would be contrary to her interests. As
the Italian authorities had referred to the need to monitor relations
between the father and the child, their supervision of what was going
to happen in the family was ensured. The court noted that pursuant to
the Hague Convention the child was not returned to the other parent
but to the other country; therefore, the court did not find the first
applicant’s arguments about the separation of mother and child
relevant. A close relationship between the mother and child would
also contribute to the child’s sense of security in Italy where
she had been living until 2 March 2011. R. had confirmed at the
court’s hearing that he was ready to provide the applicants
with lodging and subsistence. The conflict between the parents could
not determine the choice of the child’s country of residence;
these matters could be taken into account in the determination of the
parents’ rights of custody. The first applicant’s
arguments related to her impossibility to return to Italy because of
the risk of arrest were irrelevant because the Italian authorities
could in any event make use of the European arrest warrant. The court
concluded that there were no circumstances that allowed dismissing
the request for the second applicant’s return to Italy.
- The
court acknowledged that the second applicant had developed certain
routines and a feeling of security in Estonia. Nevertheless, courts
could not favour a parent altering a child’s country of
residence without the consent of the other parent. The first
applicant should have sought the determination of her custody rights
in the first place and only thereafter changed her and –
depending on the custody rights awarded – the child’s
residence.
- The
County Court ruled that it had no jurisdiction over the first
applicant’s claim for sole custody as the child was to be
returned to Italy. The court dismissed the first applicant’s
requests for a further hearing to be held, for her and witnesses to
be examined and for a psychiatric expert examination of R. to be
ordered. It noted that owing to exceptional circumstances (delayed
receipt of the reply from the Italian social services and the lodging
of complaints of abuse) it had not been able to resolve the matter
within six weeks. Nevertheless, further suspension of the proceedings
was not possible but it was open to the first applicant to make the
requests in question in the proceedings concerning the custody
rights.
(b) Proceedings before the Court of Appeal
- The applicants appealed against the County Court’s
decision, requesting the dismissal of R.’s request for the
second applicant’s return to Italy and resumption of the
examination of the first applicant’s claim for sole custody of
the second applicant. The first applicant submitted to the Tartu
Court of Appeal, inter alia, an extract of the second
applicant’s medical record according to which the applicants
had been examined in a psychiatric department of the Tallinn
Children’s Hospital in October 2011. It had been found that the
child had a secure attachment relationship with her mother and that
in the event of the continuation of the stressful period related to
the court proceedings the mother and child would need psychological
support.
- By
a decision of 12 December 2011 the Tartu Court of Appeal upheld the
first-instance court’s ruling. It considered that the child had
lived with her parents in Italy until 2 March 2011 and had become
accustomed to her social and family environment in that country. It
was natural that she had also developed such relations in Estonia
after her unlawful retention but neither this nor the child’s
earlier visits to Estonia meant that her habitual residence was in
Estonia. The Court of Appeal agreed with the County Court’s
finding that the return of the child was not excluded under
Article 13 of the Hague Convention. It considered that according
to the spirit of the Hague Convention the child’s swift return
to her habitual living environment was presumed to be in her best
interests. This also had a general preventive effect ensuring that
parents would not take their children unlawfully to another country.
Accordingly, a child could only not be returned in exceptional
circumstances.
- The Court of Appeal was of the view that the second
applicant’s return to Italy would not necessarily lead to her
separation from her mother and accordingly the related arguments of
the appeal were unfounded. It referred to several items of evidence
adduced by R. including, inter alia, an opinion of Italian
experts, according to which the child’s return to Italy was in
her interests, and a notice from the kindergarten the second
applicant had attended in Italy, according to which there had been
nothing to indicate the use of physical or mental violence against
the child. The Court of Appeal concluded that the second applicant
would not be placed in an intolerable situation upon her return to
Italy and that the first applicant’s claims of the abuse of the
child by her father were groundless.
- The Court of Appeal noted that the evidence adduced by
the first applicant, which the first-instance court had disregarded,
did not demonstrate reliably that R. had abused the child. The
psychology expert who had examined the second applicant had not
confirmed that she had been abused by her father. The expert’s
opinion that the child’s return to Italy would cause her
serious suffering had been based on the first applicant’s
groundless claim that the child would be separated from her on
return. The Court of Appeal noted that the first applicant had
confirmed at the County Court’s hearing that R. had not been
violent towards the child and only later in the proceedings had she
claimed that R. had abused the child. The Court of Appeal was in
agreement with R.’s opinion that the first applicant had raised
the accusation about the abuse of the child in order to justify her
retention in Estonia. The allegation of abuse had not been raised in
Italy or immediately after the applicants’ arrival in Estonia;
it had only been made to the police on 12 July 2011. The Court of
Appeal considered the first applicant’s allegations of abuse
were not credible. The parents’ mutual accusations indicated
that there were strained relations between them but did not in
themselves prove the existence of the grounds for refusing the return
of the child under Article 13 § 1 (b) of the Hague Convention.
- The
Court of Appeal referred to the Supreme Court’s judgment of
6 December 2006, according to which a child could only not be
returned on the basis of Article 13 § 1 (b) of the Hague
Convention if this would result in extremely serious damage to the
child’s well-being. The harmful effects that could arise from
the separation of the child from the parent could be avoided by the
return of the child together with the parent in question.
(c) Appeals to the Supreme Court and
subsequent developments
- On
6 February 2012 the Supreme Court declined to examine appeals lodged
by the first applicant and the second applicant’s
representative.
- On
22 February 2012 the Supreme Court refused to reopen the proceedings.
- On
29 February 2012 the first applicant received a bailiff’s
notice (deposited on 28 February 2012), according to which the
child had to be returned to Italy within ten days.
3. Proceedings in Italy concerning the custody of the
second applicant
- On
15 April 2011 R. made a request to the Milan Youth Court seeking the
return of the child and a prohibition on her leaving Italy; he also
claimed sole custody of the child with visitation rights accorded to
the first applicant. On 2 May 2011 the Youth Court suspended the
proceedings. It appears that a time-limit was subsequently set for R.
to settle the case, regard also being had to the proceedings pending
in Estonia, and that the first applicant’s submissions in
English were not admitted by the Youth Court. Pursuant to the Milan
Youth Court’s provisional ruling of 23 December 2011, the
first applicant was ordered to return the child to Italy to her
father to whom sole custody of the child was accorded. In the event
of her failure to do so she would lose her parental rights. The
Arluno Social Services were requested to take the matter under their
supervision and arrange the meetings between the child and the mother
in a neutral environment as well as give the court feedback about the
relationship between the child and each of the parents.
- A
hearing before the Milan Youth Court took place on 2 March 2012 with
the participation of the first applicant and R. According to the
first applicant, the court considered that she and the child should
move into R.’s residence for two weeks and stay there with R.
and a psychologist or psychiatrist of his choosing. Thereafter the
mother’s access rights to the child would be terminated and the
child would remain under the supervision of social workers.
4. Criminal proceedings
- On
12 July 2011, in Estonia, the NGO Järva Naiste Varjupaik (Järva
Women’s Shelter) reported R. for sexually assaulting the second
applicant on the basis of information received from the first
applicant in the course of counselling. On 22 July 2011 the first
applicant was interviewed by a police investigator. She submitted
that she had seen R. sexually abusing their daughter in the summer of
2010. The first applicant further submitted that in February 2010 R.
had pushed her over while she had been holding the then
seven-month-old child.
- A
similar criminal investigation was opened in Italy on the basis of
the first applicant’s complaint of 5 August 2011. On 6 October
2011 the police informed the Milan Prosecutor’s Office of the
state of the investigation. According to the information provided,
the first applicant’s music teacher and R.’s former wife
had been interviewed in September 2011. The first applicant had
talked to the music teacher about her problems with R. and his
parents and had also made comments about R.’s behaviour towards
their daughter. R.’s former wife had described R. as reliable
and affectionate in a relationship, and said that he had never been
violent, aggressive, disrespectful, controlling or jealous. What had
been decisive for ending their marriage had been the influence that
R.’s parents, particularly his father, had exercised over him.
Such influence had never been contested by R. who had had very strong
ties, verging on dependence, with his family. She had also made
reference to R.’s obsession with cleanliness. The police also
examined a report by the Italian Embassy in Tallinn concerning the
second applicant’s living conditions in Estonia – which
were described in positive terms – and information from the
Magenta child protection agency. In respect of the alleged sexual
abuse, the police considered that there was a lack of information
allowing this to be put into context and found that a precise
understanding of the circumstances and sequence of the events was
necessary for assessing their criminal relevance or their
inappropriateness from a parental education point of view. The
information available demonstrated the first applicant’s
difficulty in living with R., above all in relation to the
interference and influence exercised by his father. At the same time,
nothing had emerged to suggest that R. was sexually deviant. Lastly,
the police noted that there were separate criminal proceedings
pending concerning child abduction and detention abroad in respect of
the first applicant initiated on the basis of a complaint by R.
- Criminal
proceedings have also been opened in Italy in respect of R.’s
alleged violence towards the first applicant.
- In
February 2012 the first applicant reported R. to the Estonian
authorities for allegedly making a false accusation and using a
forged document. It appears that R., in turn, has reported the first
applicant for allegedly making a false accusation.
B. Relevant domestic law
- In
a judgment of 6 December 2006 (case no. 3-2-1-123-06) the Civil
Chamber of the Supreme Court dealt with a case under the Hague
Convention. It noted, inter alia, that as a rule, a child who
had been wrongfully removed or retained in another Contracting State
had to be promptly returned. Pursuant to Article 13 § 1 (b) a
wrongfully removed or retained child could only not be returned in
exceptional circumstances, that is when his or her return would cause
extremely serious harm to the child’s well-being. In this
connection, the child’s well-being had to be under
extraordinary threat that was sufficiently specific and probable. An
extensive interpretation of Article 13 § 1 (b) and other
grounds for refusal to return a child would undermine the purpose of
the Hague Convention. Proceeding from the above, the Supreme Court
considered it impossible not to return the child concerned merely
because the mother’s care was important for an infant and the
child had continuously been with the mother up until the material
time and had no experience of living alone with the father. Since the
dispute between the parties did not concern the child’s place
of residence but the return of the child under the Hague Convention,
there was no need to resolve the question of which parent should be
given priority in bringing up the child. The only matter to be
determined was that of the child’s prompt return. Under the
Hague Convention the child was not to be returned to the other parent
but, as a rule, simply returned to the country of his or her habitual
residence. The harmful effects that could arise from the separation
of the child from a parent could in most instances be avoided by the
return of the child together with the parent, separation from whom
could cause serious damage to the well-being of the child. The
Supreme Court also noted that the risk to the child’s
well-being, referred to in the provision concerned, had to be proved.
C. Relevant international law
- The
relevant provisions of the Hague Convention, which entered into force
in respect of Estonia on 1 July 2001, read, in so far as relevant, as
follows.
Article 1
“The objects of the present Convention are:
(a) to secure the prompt return of children
wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under
the law of one Contracting State are effectively respected in the
other Contracting States.”
Article 3
“The removal or the retention of a child is to be
considered wrongful where –
a) it is in breach of rights of custody
attributed to a person, an institution or any other body, either
jointly or alone, under the law of the State in which the child was
habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those
rights were actually exercised, either jointly or alone, or would
have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a)
above, may arise in particular by operation of law or by reason of a
judicial or administrative decision, or by reason of an agreement
having legal effect under the law of that State.”
Article 4
“The Convention shall apply to any child who was
habitually resident in a Contracting State immediately before any
breach of custody or access rights. The Convention shall cease to
apply when the child attains the age of 16 years.”
Article 11
“The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings for the
return of children.
If the judicial or administrative authority concerned
has not reached a decision within six weeks from the date of
commencement of the proceedings, the applicant or the Central
Authority of the requested State, on its own initiative or if asked
by the Central Authority of the requesting State, shall have the
right to request a statement of the reasons for the delay. If a reply
is received by the Central Authority of the requested State, that
Authority shall transmit the reply to the Central Authority of the
requesting State, or to the applicant, as the case may be.”
Article 12
“Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial or administrative
authority of the Contracting State where the child is, a period of
less than one year has elapsed from the date of the wrongful removal
or retention, the authority concerned shall order the return of the
child forthwith.
The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the period of
one year referred to in the preceding paragraph, shall also order the
return of the child, unless it is demonstrated that the child is now
settled in its new environment.
Where the judicial or administrative authority in the
requested State has reason to believe that the child has been taken
to another State, it may stay the proceedings or dismiss the
application for the return of the child.”
Article 13
“Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of the requested
State is not bound to order the return of the child if the person,
institution or other body which opposes its return establishes that –
a) the person, institution or other body
having the care of the person of the child was not actually
exercising the custody rights at the time of removal or retention, or
had consented to or subsequently acquiesced in the removal or
retention; or
b) there is a grave risk that his or her
return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse
to order the return of the child if it finds that the child objects
to being returned and has attained an age and degree of maturity at
which it is appropriate to take account of its views.
In considering the circumstances referred to in this
Article, the judicial and administrative authorities shall take into
account the information relating to the social background of the
child provided by the Central Authority or other competent authority
of the child’s habitual residence.”
Article 19
“A decision under this Convention concerning the
return of the child shall not be taken to be a determination on the
merits of any custody issue.”
Article 20
“The return of the child under the provisions of
Article 12 may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms.”
COMPLAINTS
- The
applicants complained, relying on Articles 3, 6 § 1, 8 and 14 of
the Convention, that the Estonian courts’ decision to return
the second applicant to Italy had been in breach of international law
and contrary to the practice of the European Court of Human Rights.
They referred to the Court’s findings in the cases of Neulinger
and Shuruk v. Switzerland [GC], no. 41615/07, ECHR 2010;
Raban v. Romania, no. 25437/08, 26 October 2010;
Šneersone and Kampanella v. Italy, no. 14737/09,
12 July 2011; and X v. Latvia, no. 27853/09, 13
December 2011. The national courts had failed to follow the best
interests of the child. They had disregarded the evidence concerning
the child’s habitual residence, her integration into Estonian
life and lack of such integration into life in Italy, the applicants’
arguments relating to the close relations between the child and her
mother, the personality of the child’s father, abuses committed
by him, the first applicant’s impossibility to return to Italy,
and evidence demonstrating that the second applicant would endure
serious mental and physical suffering if sent back to Italy. The
courts had also disregarded or dismissed the first applicant’s
requests for further evidence to be obtained.
THE LAW
- The
applicants complained under different Articles of the Convention
about several aspects of the proceedings before the domestic courts
and their decisions ordering the return of the second applicant to
Italy. Being the master of the characterisation to be given in law to
the facts of the case (see, for example, Guerra and Others v.
Italy, 19 February 1998, § 44, Reports of
Judgments and Decisions 1998 I), the Court considers that
the applicants’ complaints fall to be examined under Article 8
of the Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. General principles
- An
interference with the right to respect for private and family life
will be in breach of Article 8 of the Convention unless it can be
justified under paragraph 2 of Article 8 as being “in
accordance with the law”, as pursuing one or more of the
legitimate aims listed therein and as being “necessary in a
democratic society” in order to achieve the aim or aims
concerned.
- Furthermore,
in the case of Neulinger and Shuruk (cited above, §§ 131-40,
with further references), the Court articulated and summarised a
number of principles that have emerged from its case-law on the issue
of the international abduction of children, as follows:
(i) The
Convention cannot be interpreted in a vacuum, but, in accordance with
Article 31 § 3 (c) of the Vienna Convention on the Law of
Treaties (1969), account is to be taken of any relevant rules of
international law applicable to the Contracting Parties (see
Neulinger and Shuruk, cited above, § 131, with further
references).
(ii) The
positive obligations that Article 8 of the Convention imposes on the
States with respect to reuniting parents with their children must
therefore be interpreted in the light of the Convention on the Rights
of the Child of 20 November 1989 and the Hague Convention on the
Civil Aspects of International Child Abduction of 25 October 1980
(see Maire v. Portugal, no. 48206/99, §
72, ECHR 2003 VII, and Ignaccolo-Zenide v. Romania,
no. 31679/96, § 95, ECHR 2000 I).
(iii) The
Court is competent to review the procedure followed by the domestic
courts, in particular to ascertain whether those courts, in applying
and interpreting the provisions of the Hague Convention, have secured
the guarantees of the Convention and especially those of Article 8
(see, to that effect, Bianchi v. Switzerland, no. 7548/04, §
92, 22 June 2006, and Carlson v. Switzerland, no. 49492/06, §
73, 6 November 2008).
(iv) In
this area the decisive issue is whether a fair balance between the
competing interests at stake – those of the child, of the two
parents, and of public order – has been struck, within the
margin of appreciation afforded to States in such matters (see
Maumousseau and Washington v. France, no. 39388/05, §
62, 6 December 2007), bearing in mind, however, that the child’s
best interests must be the primary consideration (see, to that
effect, Gnahoré v. France, no. 40031/98, § 59,
ECHR 2000 IX).
(v) “The
child’s interests” are primarily considered to be the
following two: to have his or her ties with his or her family
maintained, unless it is proved that such ties are undesirable, and
to have his or her development in a sound environment ensured (see,
among many other authorities, Elsholz v. Germany [GC],
no. 25735/94, § 50, ECHR 2000 VIII, and Maršálek
v. the Czech Republic, no. 8153/04, § 71, 4 April
2006). The child’s best interests, from a personal development
perspective, will depend on a variety of individual circumstances, in
particular its age and level of maturity, the presence or absence of
its parents and its environment and experiences.
(vi) A
child’s return cannot be ordered automatically or mechanically
when the Hague Convention is applicable, as is indicated by the
recognition in that instrument of a number of exceptions to the
obligation to return the child (see in particular Articles 12, 13 and
20), based on considerations concerning the actual person of the
child and its environment, thus showing that it is for the court
hearing the case to adopt an in concreto approach to it (see
Maumousseau and Washington, cited above, § 72).
(vii) The
task to assess those best interests in each individual case is thus
primarily one for the domestic authorities, which often have
the benefit of direct contact with the persons concerned. To that end
they enjoy a certain margin of appreciation, which remains subject,
however, to a European supervision whereby the Court reviews under
the Convention the decisions that those authorities have taken in the
exercise of that power (see, for example, Hokkanen v. Finland,
23 September 1994, § 55, Series A no. 299 A, and
Kutzner v. Germany, no. 46544/99, §§ 65-66, ECHR
2002 I; see also Tiemann v. France and Germany (dec.),
nos. 47457/99 and 47458/99, ECHR 2000 IV; Bianchi, cited
above, § 92; and Carlson, cited above, § 69).
(vii) In
addition, the Court must ensure that the decision-making process
leading to the adoption of the impugned measures by the domestic
court was fair and allowed those concerned to present their case
fully (see Tiemann, cited above, and Eskinazi and Chelouche
v. Turkey (dec.), no. 14600/05, ECHR 2005 XIII
(extracts)). To that end the Court must ascertain whether the
domestic courts conducted an in-depth examination of the entire
family situation and of a whole series of factors, in particular of a
factual, emotional, psychological, material and medical nature, and
made a balanced and reasonable assessment of the respective interests
of each person, with a constant concern for determining what the best
solution would be for the abducted child in the context of an
application for his return to his country of origin (see Maumousseau
and Washington, cited above, § 74).
B. Application of the above principles in the instant
case
- The
Court observes at the outset that Article 8 is applicable in the
present case (see, for example, Neulinger and Shuruk, cited
above, § 90) and that it has no doubts that the domestic
decisions in question interfered with the applicants’ rights
under Article 8, be it due to the possible difficulties of continuing
to live together or to the inherent obligation to relocate to another
country (see Mattenklott v. Germany (dec.), no. 41092/06,
11 December 2006).
- In
respect of the lawfulness of the interference, the Court observes
that the impugned decisions concerning the second applicant’s
return to Italy were based on the Hague Convention, which has been
incorporated into Estonian law. The matter was dealt with by
competent courts at three levels of jurisdiction and they concluded,
in duly reasoned decisions which disclose no sign of arbitrariness,
that the second applicant’s retention in Estonia was wrongful
as the child’s father had not consented to her stay in that
country and that she should be returned to Italy, which had been the
country of her habitual residence. Thus, the Court finds that the
decision concerning the second applicant’s return to Italy was
“in accordance with the law” within the meaning of
Article 8 § 2.
- The
domestic courts’ decisions also pursued the legitimate aim of
protecting the rights and freedoms of the second applicant and her
father (see, on this issue, Tiemann, cited above, and Bayerl
v. Germany (dec.), no. 37395/08, 13 October 2009).
- It
remains to be determined whether the interference with the
applicants’ rights was “necessary in a democratic
society” within the meaning of Article 8 § 2 of
the Convention.
- The
Court notes in this context that the domestic authorities did not
order the second applicant’s return to Italy automatically or
mechanically after having found that the Hague Convention was
applicable. A hearing was held by the County Court and subsequently
the parties were invited to make their submissions in writing on
several occasions. The parties were able to adduce evidence and the
County Court itself ordered an expert examination of the child and
sought additional information from the Italian authorities. The Court
also notes that the second applicant was represented in the
proceedings by a State-appointed lawyer and that a representative of
the local government of the applicants’ place of residence in
Estonia was involved in the proceedings. Furthermore, the applicants
were able to exercise their right of appeal to the Court of Appeal
and to the Supreme Court. Thus, the Court considers that the
applicants were able to fully present their case. The fact that
several of the first applicant’s requests, such as for an
additional hearing, the examination of witnesses and a psychiatric
expert examination of R., were dismissed, did not render the
proceedings unfair. The Court attaches particular importance in this
context to the need to conduct the proceedings in question swiftly
and to the fact that these proceedings were not meant to determine
the merits of the custody issue (Article 19 of the Hague Convention).
- In
respect of the question whether the domestic authorities succeeded in
striking a fair balance between the interests at stake bearing in
mind the child’s best interests as the primary consideration
and whether they conducted an in-depth examination of the entire
family situation, the Court observes that the domestic courts based
their decisions on ample evidence adduced by the parties and obtained
by the courts themselves. The Court notes that the domestic
authorities proceeded from the presumption that pursuant to the
rationale of the Hague Convention, the immediate return of the child
to her habitual place of residence was in her best interests and it
also had a general preventive effect. Therefore, the courts
considered that the return of the child could only be refused in
exceptional circumstances (compare Maumousseau and Washington,
cited above, § 73, and Lipkowsky and McCormack v.
Germany (dec.), no. 26755/10, 18 January 2011, where the Court
found that the exceptions for not returning a child under the Hague
Convention had to be interpreted strictly).
- The
Court further observes that the domestic authorities had regard to
several expert opinions, including those from the court-appointed
psychologist and from a psychotherapist who had counselled the first
applicant in Estonia as well as written opinions from Italian
psychologists adduced by R. The Estonian psychotherapist and an
Italian psychologist were present at at least some of R.’s
meetings with the child in the summer of 2011 in Estonia and it can
be understood that in their opinions they took into consideration
their observations made at these meetings. The Court notes that in
the different opinions the effects of the child’s return and
the relations between the parents and with the child were assessed
differently. It appears from the domestic courts’ decisions and
the materials submitted by the applicants that the Italian experts
pointed out the first applicant’s communication problems and
considered that the child’s return to Italy was in her
interests (see paragraph 20 above). At the same time, the Estonian
experts emphasised the close relations between the mother and the
child and concluded that the child’s return to Italy would
cause her serious harm as she would be separated from her mother;
even if the mother were to move to Italy, she would be at risk of
mental and physical abuse by the child’s father which would
also have negative effects on the child’s development (see
paragraphs 12 and 18 above).
- The
Court further notes that none of the experts was able to confirm that
the child had been sexually abused (see paragraph 12 above). The
Estonian courts also obtained information from the Italian
authorities in whose opinion there had been tensions between the
parents and the relations between the father and the child had to be
monitored. The information also comprised some assessment of the
father’s personality, which gave no grounds for the courts to
rule out the child’s return (see paragraphs 11 and 15 above).
Moreover, neither the information obtained from Italy nor the first
applicant’s statements in court revealed that the father had
been violent towards the child. As concerns written statements from a
number of the first applicant’s relatives, friends and
colleagues, the Court of Appeal noted that the first-instance court
had disregarded this evidence; nevertheless, the appellate court
found for its part that neither this evidence nor the information
concerning the criminal proceedings against R. sufficiently proved
the first applicant’s allegations of sexual abuse of the child.
- Consequently,
the Court cannot agree with the first applicant’s argument that
the domestic courts failed to analyse the evidence in question.
Although the standard of proof in matters such as the present one
need not be the same as in criminal proceedings, the Court does not
consider that there was any degree of arbitrariness on the part of
the domestic courts in not attaching paramount importance to the fact
that the first applicant had reported the child’s father for
committing certain offences. The Court also refers, in this context,
to the fact that the right to be presumed innocent is a right
protected under the Convention and reiterates, moreover, that it is
primarily for the domestic courts to assess the evidence.
- In
respect of the applicants’ argument that the father of the
child would continue to work and the child would be taken care of by
his parents or spend her days in child care in the event of her
return to Italy, the Court reiterates that the proceedings under the
Hague Convention cannot be deemed to determine custody rights and,
moreover, the first applicant also worked in Estonia, her parents
apparently helped her to take care of the child and the child
attended a kindergarten in Estonia.
- As
concerns the first applicant’s allegation that it would be
impossible for her to return to Italy because of the mental and
physical violence she would be subjected to by R., her lack of any
social network in that country, loss of income, lack of sufficient
knowledge of the Italian language and risk of arrest in connection
with the criminal proceedings against her in Italy, the Court notes
at the outset that the domestic courts did not order the first
applicant’s return to Italy. Nevertheless, in response to the
first applicant’s argument that the separation of the child
from her mother would be likely to cause serious harm to the child,
the courts referred to such a possibility indicating that the harmful
consequences could be avoided by the return of the child together
with the parent in question. According to the County Court’s
judgment R. had expressed his readiness to provide the applicants
with lodging and subsistence on their return. Furthermore, in
connection with the alleged risk of arrest the domestic courts took
into account the possible use of the European arrest warrant by the
Italian authorities which rendered the first applicant’s
arguments concerning the impossibility of her return inappropriate
(see paragraph 15 above). The Court also takes note in this context
of the doubts cast by the first applicant as to whether R. would
indeed support the applicants. However, it is not for the Court to
determine whether R.’s offer was of a binding nature or assess
the probability of the first applicant’s arrest by the Italian
authorities. It notes, nevertheless, firstly, that the domestic
courts addressed the objections raised by the first applicant in this
connection and, secondly, that the Italian authorities are bound by
the Convention in the conduct of the criminal proceedings. The same
applies to the civil proceedings in Italy concerning the custody of
the child, in connection with which the first applicant argued that
the Estonian courts’ failure to take into account the violation
of her rights in the Italian proceedings amounted to a separate
violation of Article 6 of the Convention. Moreover, these
proceedings are still pending and, in any event, the Estonian
authorities cannot be held responsible for any alleged violations by
the Italian courts (compare Van den Berg and Sarrì v. the
Netherlands (dec.), no. 7239/08, 2 November 2010).
Furthermore, the first applicant had lived in Italy for a certain
period of time and pursued music studies in that country before she
left for Estonia. Thus, it cannot be said that she had no connections
whatsoever with that country. Therefore, the Court considers that by
dismissing the first applicant’s arguments concerning her
impossibility to return to Italy the domestic courts did not overstep
their margin of appreciation.
- In
conclusion, the Court notes that the national courts found that there
was no information that the child’s return to Italy would
involve a risk of physical or psychological harm or otherwise place
her in an intolerable situation. The Court reiterates that such an
assessment is primarily the task of the domestic authorities who
enjoy a certain margin of appreciation in that regard. There is
nothing to indicate that the domestic courts’ assessment was
arbitrary or that the authorities failed to strike a fair balance
between the competing interests at stake in the present case. The
Court also reiterates that the proceedings in question did not
involve any determination of the parents’ custody rights, which
are subject to separate proceedings in Italy, a Contracting State
bound by the Convention.
- It
follows that the applicants’ complaints are manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
- In
view of the above, it is appropriate to discontinue the application
of Rule 39 of the Rules of Court.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Nina
Vajić
Registrar President
