EHRM, 02-11-2010, nr. 7239/08

The facts of the case, as submitted by the applicants, may be summarised as follows.

Noa, the second applicant, was born in Italy on 5 April 2000. Her father, an Italian national, and the first applicant — who were not married — both had parental authority over her, pursuant to Italian law. The family had been living partly in Italy and partly in Spain. In the course of the years, the relationship between the first applicant and Noa's father deteriorated and she started spending periods of time in the Netherlands together with her daughter.

During the first such visit to the Netherlands, the first applicant lodged a request, dated 1 July 2003, with the Utrecht Regional Court (rechtbank) for the parental authority situation to be changed (wijziging gezag) and that she be granted sole legal custody of Noa.

In June 2003 the first applicant had lodged a similar request — for sole parental authority — with the Turin Juvenile Court (Tribunale per i Minorenni).

On 27 November 2003 another such request was lodged by the first applicant with the Utrecht Regional Court.

At a moment in time not known to the Court, Noa's father was prosecuted on charges of having abducted his daughter and having threatened the applicant around that same time.

On 14 May 2004 Noa's father was acquitted of those charges. An appeal against this acquittal was lodged by the first applicant, the outcome of which is not known to the Court.

In an interim decision of 1 June 2004 the Turin Juvenile Court entrusted the first applicant with parental authority over Noa until the competent Italian welfare agency had carried out an assessment — on the instructions of the court — of the question to which parent Noa should best be entrusted. The Turin court further stipulated that pending the welfare agency's evaluation and the subsequent proceedings on parental authority, Noa was not to leave Italy. Noa and her mother were housed in a reception centre at that time, in the absence of other adequate housing.

In August 2004, the first applicant and Noa left Italy for the Netherlands.

On 23 September 2004, the Juvenile Section of the Turin Court of Appeal (Corte d'Appello Sezione Speciale per i Minorenni) ordered Noa's return to Italy, where she was to be placed in the care of the Italian child welfare agency, since the first applicant had breached the Turin Juvenile Court's ruling by taking Noa to the Netherlands.

On 26 October 2004 the Netherlands Ministry of Justice (Ministerie van Jusitie), in its capacity as Central Authority under Article 6 of the Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’) and on behalf of Noa's father, advised the first applicant voluntarily to return Noa to Italy by 12 November 2004, in compliance with the Turin Court's order of 1 June 2004. Failure to do so would result in the Central Authority bringing a case before a Netherlands Regional Court for the purposes of enforcement of Noa's return to Italy.

On 16 November 2004 the first applicant's Dutch lawyer informed the Central Authority of his client's intention not to comply with the Central Authority's request, as she was of the opinion that Noa's place of habitual residence was not Italy. The lawyer also stated that he had been informed by the Utrecht Regional Court that the proceedings for changing parental authority over Noa lodged by the first applicant with that court in 2003 had been stayed for the duration of the proceedings for Noa's return under the Hague Convention.

On 6 December 2004 the Central Authority requested the Amsterdam Regional Court, under Article 12 of the Hague Convention, to order the first applicant to return Noa to Italy, the latter's removal from that country having been effected in violation of Article 3 of the Hague Convention.

By decision of 2 February 2005, the Amsterdam Regional Court rejected the Central Authority's request. It held that although Noa's removal from Italy had been unlawful in terms of Article 3 of the Hague Convention, her return to Italy would entail a grave risk that she be exposed to physical or psychological harm or otherwise placed in an intolerable situation, within the meaning of Article 13 (b) of the Hague Convention. The Amsterdam Regional Court considered in this regard, inter alia, that the first applicant was the only stable factor in Noa's life as regards the latter's care and education and that Noa had never developed strong roots in Italy, whereas she had developed a certain bond with the Netherlands, in which country she also attended school and where she was settling in well.

Based on Article 13 (b) of the Hague Convention the Amsterdam Regional Court thus refused to order Noa's return to Italy, her place of habitual residence.

The Regional Court also noted, in its account of the facts, that the proceedings lodged by the first applicant with the Utrecht Regional Court in 2003 for changing parental authority over Noa had been stayed until 29 April 2005, for which date a pro forma hearing was scheduled.

On 10 February 2005 the Central Authority filed an appeal with the Amsterdam Court of Appeal (gerechtshof) against the Amsterdam Regional Court's decision, arguing, inter alia, that the Regional Court's finding as regards the applicability of Article 13 of the Hague Convention was flawed. The first applicant filed a cross-appeal on 2 March 2005 to which the Central Authority replied on 6 April 2005.

On 22 February 2005, a lower Turin court, in a decision on the merits, granted the first applicant's request of June 2003 to be entrusted with sole parental authority over Noa and established contact arrangements between Noa and her father. The latter appealed the judgment.

On 20 April 2005, a Turin appeals court quashed that ruling and attributed sole parental authority over Noa to her father, under the condition that the first applicant be allowed to visit Noa as often as possible in a secured environment and including a prohibition on the first applicant leaving Italy with Noa. The first applicant was not heard before this court.

After hearings had been held on 3 March and 2 May 2005, the Amsterdam Court of Appeal rejected, on 19 May 2005, both the Central Authority's appeal and the first applicant's cross-appeal and upheld the impugned ruling of the Amsterdam Regional Court of 2 February 2005, albeit on different grounds. It took note, inter alia, of the lower Turin court's judgment of 22 February 2005 (supra) and subsequent quashing thereof by the Turin appeals court on 20 April 2005. It inferred from the latter that Noa, if returned to Italy, would be placed in the custody of her father. The court further had regard to the Dutch Child Care and Protection Board's (Raad voor de Kinderbescherming) expert opinion setting out, inter alia, the Board's advice not to return Noa to Italy, notwithstanding the illegal nature of the manner in which she had been taken away from that country, in view of the stability which Noa had found in the Netherlands.

The Amsterdam Court of Appeal went on to consider that Italy was to be seen as Noa's place of habitual residence within the meaning of the Hague Convention; that the Turin appeals court had failed to hear the first applicant in the proceedings culminating in its judgment of 20 April 2005; that that court had based itself on partly untruthful facts submitted by Noa's father; that, as a result of this mendacious conduct in the Turin proceedings and the misinformed conclusions which that court had drawn from it, Noa would risk being placed in an intolerable situation if returned to Italy, i.e. would find herself in the midst of her parents' troublesome relationship; and that such a situation, in which Noa would be forced to give up her stable life in the Netherlands for the uncertainty awaiting her upon her return to Italy, would not be beneficial to her.

The Court of Appeal thus upheld the Amsterdam Regional Court's decision of 2 February 2005 that Article 13 (b) of the Hague Convention precluded Noa from being taken back to her habitual place of residence, being Italy, for fear that she would be exposed to physical or psychological harm or otherwise placed in an intolerable situation.

The Court of Appeal did not make mention of the proceedings lodged by the first applicant with the Utrecht Regional Court for changing parental authority over Noa, in which proceedings a pro forma hearing had been scheduled for 29 April 2005 according to the Amsterdam Regional Court in its decision of 2 February 2005.

No reference was made in any subsequent proceedings to those proceedings.

On 16 June 2005 Noa's father lodged an appeal in cassation with the Netherlands Supreme Court (Hoge Raad) arguing, inter alia, that the Amsterdam Court of Appeal had erred in finding that Noa was at risk of being placed in an intolerable situation if returned to Italy.

The Central Authority, by letter of 12 July 2005, informed the Supreme Court that it refrained from lodging an appeal in cassation on behalf of Noa's father. It did, however, endorse the appeal in cassation lodged by him.

On 12 July 2005 the first applicant responded to the cassation appeal and lodged a cross-appeal in cassation in case the principal appeal was successful (voorwaardelijk incidenteel cassatieberoep). The first applicant argued that the Amsterdam Regional Court, in its judgment of 2 February 2005, had erred in finding that Noa's removal from Italy by her mother had been wrongful within the meaning of Article 3 of the Hague Convention.

Noa's father responded to the first applicant's cross-appeal on 2 August 2005.

On 20 January 2006 the Supreme Court quashed the impugned judgment and remitted the case to the Court of Appeal of The Hague. It considered that Article 13 (b) of the Hague Convention, which provides for an exception to the general rule underlying the Hague Convention that wrongfully retained or removed children are to be returned to the States where they had their habitual residence, should be applied restrictively. In this regard the Supreme Court referred to the advisory opinion of the advocate-general and references made therein to, inter alia, relevant sections of the Explanatory Report to the Hague Convention (see relevant sections below). The Supreme Court held that under the Hague Convention the requested State should refrain from considering that the criteria of Article 13 (b) are fulfilled on the basis of its own findings on the merits that the child's interests are better served in the requested State than in the requesting State. The Amsterdam Court of Appeal had done exactly that, the Supreme Court held.

The first applicant's cross-appeal was rejected.

The Court of Appeal of The Hague, in an interim decision of 20 September 2006, decided that Noa should be heard.

That hearing having taken place and an attempt at mediation having failed, the Court of Appeal, by decision of 17 January 2007, quashed the impugned decision of the Amsterdam Regional Court of 2 February 2005 and ordered the first applicant to return Noa to the latter's habitual residence in Italy within one week of pronouncement of the judgment. It was considered that in her interview with the judges (which had taken place in camera just before the hearing) Noa had demonstrated a level of maturity justifying that her opinion be taken into consideration. Noa had shown that she did not have a negative attitude towards her father, that she appeared to be unharmed in her relationship with both parents and that her father had sufficiently demonstrated that he was able to provide her with a positive upbringing and to look after her well. Furthermore, no objective obstacles were found to exist for the first applicant to travel to Italy and visit her daughter as often as possible there.

It was thus the Court of Appeal's conclusion that the situation as set out in Article 13 (b) of the Hague Convention did not arise.

On 14 February 2007 the first applicant lodged an appeal in cassation against that decision arguing, inter alia, that Article 8 of the Convention stood in the way of Noa's return to Italy and that Noa had settled in the Netherlands — making that country her place of habitual residence in terms of the Hague Convention. It was further argued in this latter context that the efforts to return Noa to Italy despite her being settled in the Netherlands amounted to violations of Articles 12 § 2, 13 (b) and 20 of the Hague Convention.

On 7 March 2007 Noa was returned to Italy.

In a decision of 28 September 2007 the Supreme Court rejected the first applicant's appeal in cassation. It held that, after a wrongful removal, the child's habitual residence, as defined by Article 4 of the Hague Convention and in casu deemed to be Italy, did not change due to the lapse of time and consequent settlement of the child in another State. This could only be different where the parent invested with parental authority from whom the child had been removed had acquiesced in the situation and any efforts made to return the child to its place of habitual residence had no prospect of restoring the situation prior to the wrongful removal.

The Supreme Court further held that Article 12 § 2 in conjunction with Article 13 (b) of the Hague Convention only applied where a request for the return of a child, settled in its new environment, had been lodged more than one year after the wrongful removal, which was not the case here.

Furthermore, the Supreme Court held that the mere settlement of the child in the receiving State could not, ipso facto, lead to the situation described in Article 13 (b) of the Hague Convention. The same held true for Article 20 of the Hague Convention.

As regards Article 8 of the Convention, the Supreme Court found, with reference to the Strasbourg Court's findings in the case of Ignaccolo-Zenide v. Romania, (no. 31679/96, § 95, ECHR 2000-I), that a correct reading of that provision in situations like the one at issue prescribed that the authorities of the requested State should in principle abide by the Hague Convention where matters concerned by it were raised. Consequently, no violation of Article 8 was found in the instant case, in the light of the Supreme Court's findings regarding the application of the Hague Convention.

On 23 March 2007, just over two weeks after Noa's return to Italy and pending the proceedings in the Netherlands, the first applicant instituted proceedings before the Turin Juvenile Court, requesting a number of urgent interim measures, inter alia an investigation by the Italian Child Care and Protection Board into Noa's wellbeing, the restoration of the first applicant's shared parental authority, the establishment of a right to communicate with Noa, as well as the establishment of an arrangement concerning access to Noa in Italy and, during holidays and weekends, in the Netherlands.

The second applicant's father opposed these requests on 29 May 2007.

On 14 October 2008 and in reply to questions put to her pursuant to Rule 49 § 3 (a) of the Rules of Court, the first applicant submitted the following.

The first question regarded the outcome of the request of 23 March 2007 for interim measures lodged by the first applicant on the basis of article 317bis of the Italian Civil Code. The request was aimed at, inter alia, reverting the status quo ante where both the first applicant and Noa's father had parental authority over Noa (it is reiterated that the Turin appeals court had granted Noa's father sole parental custody on 20 April 2005) and ordering an investigation into Noa's wellbeing by the Italian social services (Servizio Sociali Assistenziale).

The Turin Juvenile Court, after having held several hearings, had reached a decision on 10 June 2008. It had granted parental authority over Noa to the Italian social services. Both the first applicant and Noa's father were to receive psychological assistance in order to improve their contacts with their daughter. Meetings between the first applicant and Noa were to take place in the presence of the social services, which were also to decide on the frequency of these meetings. Reports on these meetings were to be drafted by the social services by 31 December 2008, for the consideration of the Turin Juvenile Court. The applicant further informed the Court that she had lodged an appeal against this decision. These proceedings were still pending on 14 October 2008.

The first applicant further informed the Court that Noa's current place of residence was with her father in Italy.

In reply to a final question whether there was any other recent information of relevance to the Court, the first applicant submitted that the relationship between her and her daughter had suffered due to the cumbersome and sparse contacts between them following Noa's return to Italy on 7 March 2007.

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, ratified by the Netherlands and Italy, provides, in so far as relevant, as follows.

Paragraph 34 of the Explanatory Report on the Hague Convention drafted by Elisa Pérez-Vera in 1982, states as follows:

Furthermore, paragraphs 9, 19 and 124 of the Explanatory Report, in so far as relevant, read as follows:

The first applicant contended that, although she no longer had parental authority over her daughter, she was still entitled to bring proceedings on her behalf before the Court. She noted that she had lost custody of her child as a result of court proceedings in Italy that had allegedly contravened the Convention and recalled that prior to the retention of the child, the two parents had had joint custody of their child. Neither of them had superior parental rights over their daughter.

The Court reiterates that in principle a person who is not entitled under domestic law to represent another, or whose entitlement to representation is doubtful, may nevertheless, in certain circumstances, act before the Court in the name of the other person. In particular, minors can apply to the Court even, or indeed especially, if they are represented by a parent who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention. In such cases, the standing as the natural parent suffices to afford him or her the necessary power to apply to the Court on the child's behalf, too, in order to protect the child's interests (see Iosub Caras v. Romania, no. 7198/04, § 21, 27 July 2006 and further references therein).

This principle applies in the present case, in particular now that the first applicant has also contested the way in which the Italian courts decided on the custody rights over Noa, which, in the first applicant's view, violated the applicants' Article 8 rights.

The Court finds that the first applicant has standing to act on her daughter's behalf.

The applicants contended that the manner in which the Netherlands Supreme Court had applied the Hague Convention constituted an interference with their right to respect for their family life that was not in accordance with the law or necessary in a democratic society and that that Court had failed to take into consideration the interests of the child as required by Article 3 of the United Nations Convention on the Rights of the Child.

These complaints merit joint examination.

The applicants invoked Article 8 of the Convention, which reads in its relevant parts:

The applicants contended that the competent Netherlands authorities failed to adjudicate on Noa's possible return to Italy expeditiously, resulting in a violation of their rights under Article 6 in conjunction with Article 8.

Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlende v. France [GC], no. 30979/96, § 43, 27 June 2000). Regarding this latter element, special diligence is required in child custody disputes (see Laino v. Italy [GC], no. 33158/96, § 18, 18 February 1999).

In cases of this kind the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with him or her. In proceedings under the Hague Convention this is all the more so, as Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously in proceedings for the return of children and any inaction lasting more than six weeks may give rise to a request for a statement of reasons for the delay (see Ignaccolo-Zenide, cited above, § 102).

Turning to the circumstances of the instant case the Court observes that the proceedings commenced on 6 December 2004 when Noa's father filed his request under the Hague Convention in the Netherlands and that they ended on 28 September 2007 when the Supreme Court rendered its second decision. The proceedings thus lasted a total of two years, nine months and 22 days.

The Court notes that the proceedings involved five court instances; that appeal in cassation was lodged twice; that unsuccessful attempts at mediation took place; that the case was of a sensitive nature in need of careful scrutiny due to the profound consequences its outcome had on the lives of those involved, that it necessitated harmonious interpretation of different legal principles emanating from international legal instruments — the Hague Convention and the Convention on the Rights of the Child — and, lastly, that the applicants never availed themselves of their right to request, under Article 11 of the Hague Convention, a statement of reasons for delay that they might have believed existed on the part of the Netherlands authorities.

Taking all the particular circumstances of the case into account, and bearing in mind that no protracted periods of inactivity attributable to the domestic authorities have been identified, the Court finds that the overall length of the proceedings did not exceed a reasonable time.

It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicants complained that by ordering Noa's return to Italy even though they had been made aware of alleged deficiencies in earlier Italian parental authority proceedings, the Netherlands authorities breached the applicants' right to a fair trial as guaranteed by Article 6 of the Convention which, in so far as relevant, provides as follows in its first paragraph:

The Court observes that the Hague Convention is not essentially concerned with the merits of custody rights. As set out in paragraphs 9, 19 and 124 of the Explanatory Report on that Convention (see above), any debate on the merits of the parental authority claim should be left to the authorities of the State where the child had its habitual residence prior to removal. Accordingly, the proceedings previously conducted in Italy relating to the question of parental authority were not the Netherlands authorities' concern for purposes of the Hague Convention proceedings conducted before the Netherlands courts. Consequently, the fact that the first applicant had not been heard before the Turin appeals court did not affect the fairness of the proceedings in the Netherlands.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Santiago Quesada

Registrar

Josep Casadevall

President