The application of the 1980 Hague Convention and the 2201/2003 “Brussels II bis“ Regulation

The French Supreme Court (Cour de cassation) has ruled on January 17th, 2019 (n°18-23849) that the 1980 Hague Convention on international abductions is not applicable when the child has been abducted from a country that is not a Contracting Party to the Convention.

It also reminded that the 2201/2003 “Brussels II bis“, otherwise called “Brussels IIa“ Regulation is not applicable when the children’s habitual residence was located, immediately prior to the abduction, in a country that is not a Member State of the European Union.

Therefore, it is unfortunately necessary to apply the general rules that apply in France regarding international child abductions, which was much less efficient than those of the abovementioned 1980 Hague Convention and the 22031/2003 “Brussels IIa“ Regulation. This requires that the parent seeking the return of the return of the children must contact the local judicial and diplomatic authorities of the country in which the children have been abducted.

Click here to read the decision (in French)

Exceptions to an immediate return under the 1980 Hague Convention on international child abductions

The French Supreme Court has reminded, in a decision rendered on July 26th, 2019, that article 13 of the Convention allows the authorities of the country in which the child is been abducted to refuse to order the return of the child if there is a grave risk that such return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. These circumstances must be appreciated in consideration of the child’s best interest, pursuant to article 3, § 1, of the 1989 New York Convention on children rights.

The father had filed a claim for the return of the child before the Central Authority of Luxembourg after the mother had moved to France with their child. The French prosecutor had filed a claim against the mother of the child before the family court in order for the French court to order the return of the child to Luxembourg. The court in Luxembourg had thereafter ruled that physical custody of the child should be granted to the father who had proved to have sufficient parental skills and had not, unlike the mother, acted in a way that was in any way detrimental to the child’s best interests.

The French Court of Appeal had refused to order the return of the child under the 1980 Convention Hague, because it had considered that, despite what the authorities in Luxembourg had ruled, the return of the child at the father’s place of residence would place the child under great risk of psychological harm.

The French Supreme Court approves this decision, by reminding that the French courts were not bound by the reasons for the Luxembourger decision. They were therefore right to refuse to order the return of the child since the result of the psychological assessment made by a child psychiatrist and the report issued by the pediatric emergency room doctor showed that the child appeared to have suffered abuse and seemed agitated, aggressive and even suicidal at the prospect of returning to his father’s house to live, but also had audio and visual hallucinations.

The French Supreme Court appreciates very severely claims made, to oppose the return of the child, as to the existence of a great risk of psychological or physical harm in the event of the child’s return. It strives to make sure that the aims of the Convention are protected, by preventing parents from systematically preventing the return of children by arguing that their return would joepardize their physical or psychological health.

However, the Supreme Court’s decision on June 27th, 2019 is important, because it expressly states that the French courts are not bound by the reasons for the decisions issued by the judicial and administrative courts of the State in which the child had his habitual residence prior to the abduction.

This is the case even though the last paragraph of article 13 of the 1980 Hague Convention on international child abductions states that:

“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“.

Therefore, the French court must take into account the information provided by the Central Authority or other competent authority of the child’s habitual residence, but is not bound by the reasons that led to their decision regarding the risk that the child’s return would entail.

The Supreme Court has previously, in a case issued on March 20th, 2019 illustrated the way in which the information provided by the foreign Central Authority must be taken into account by the French courts (Civ. 1ère, 20 mars 2019, n°18-20850).

Click here to read the decision (in French)

The refusal to return the child due to the risk incurred by the parent who committed the abduction and its potentially harmful consequences for the child

The Court of Cassation has also issues several decisions in which it examines, in the light of the best interests of the child, the penalties that would be likely to be imposed by the parent who has committed the wrongful removal if the return of the child (and therefore of his or her parent) were ordered.

Civ. 1, 14 February 2019, n°18-23916.

Physical custody of the children had been granted to the mother by a decision of the District Court of Idaho (United States). The mother then traveled with the children to France, where she refused to return to the United States.

The father applied to the Central Authority of the United States, under the 1980 Hague Convention, in order to obtain the return of the child. The American Central Authority referred the application to the French Central Authority, which led the public prosecutor’s office to summon the mother before the family court.

At the same time, an arrest warrant had been issued for the mother, so that she was liable to be arrested if she entered the United States.

The Court of Appeals in Paris had, in a judgment delivered on 2 October 2018, refused to grant the request for return, reminding that the judicial authority of the requested State was not obliged to order the return of the child where the person opposing it established that there was a serious risk that the return of the child would expose him or her to physical or mental harm.

By a decision of 14 February 2019, the Court of Cassation dismissed the father’s appeal. The Court of Cassation agreed with the appeal judges that the return of the children would expose them to a serious risk of physical or psychological danger because of the father’s alcoholism and the depressive and suicidal disorders from which he suffered, which made him “very irritable” towards his children.

She noted that one of the children, who had been abused by his father, showed major signs of anxiety, and the second, who was very fragile, had major behavioural problems, including anorexia, which required hospital care. Finally, she considered that the youngest child, aged two, was also bearing the stigma of exposure to the father’s violence.

Moreover, it rules that if the return of the children to the United States was ordered by the French judge, the mother, because of the arrest warrant issued against her by the American authorities, risked being arrested, thus preventing her from “ensuring”, in the words of the High Court, the “protection” of the children, since the children risked being entrusted to their father, who moreover produced “no evidence justifying his commitment to maintain the links between the mother and the children”.

It therefore refused to grant the father’s request for return, since the father’s maintenance of the children at his residence was jeopardised by the arrest warrant issued against him.

Click here to read the decision (in French)

Civ. 1st, 22 November 2018, n°18-20546

The mother of the child, who was born in Tokyo, had returned to France for a supposedly temporary stay, during which she had filed a petition for divorce before the French family court.

The father applied to the Japanese Central Authority for the child’s return to Japan, pursuant to the 1980 Hague Convention. The return was granted by the Court of Appeal of Montpellier, which considered that the mother had failed to demonstrate that she was unable to return to and stay in Japanese territory and accompany the child there.

The Court of Cassation overturned the appeal judgment, ruling that :

“In so deciding, without investigating, as requested, whether, if the mother returned with the child to Japan, she would not find herself deprived of her parental rights, thus exposing her son, aged three years old and having always lived with her, to a serious risk of psychological danger, the Court of Appeal did not give a legal basis for its decision“.

The High Court therefore considered that it was for the trial judges to ascertain that the potential consequences potentially incurred by the parent who had removed the child (in a manner deemed unlawful by the requesting State) were not likely to deprive the child of that parent and thus to contravene the best interests of the child.

Click here to read the decision.

Please get in touch with us if you need any legal guidance and assistance in issues related to the international abduction of a child, to or from France. Always keep in mind that in such issues, time is of the essence, and it is important to act as quickly as possible, and receive adequate legal advice in the process.