Last Updated on September 1, 2022 by LawEuro
The application concerns proceedings for the return of children under the Hague Convention on the Civil Aspects of International Child Abduction in which the domestic courts refused to order the return of the applicant’s four children to Germany after their mother had retained them in Croatia.
FIRST SECTION
CASE OF Z. v. CROATIA
(Application no. 21347/21)
JUDGMENT
Art 8 • Family life • Domestic courts’ lack of relevant and sufficient reasons for refusing to order return of applicant’s children to Germany, after retention by their mother in Croatia, through finding the Hague Child Abduction Convention inapplicable • No basis for interpreting judgment as requiring respondent State to return the children now
STRASBOURG
1 September 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Z. v. Croatia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Marko Bošnjak, President,
Péter Paczolay,
Krzysztof Wojtyczek,
Alena Poláčková,
Erik Wennerström,
Raffaele Sabato,
Davor Derenčinović, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 21347/21) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Z. (“the applicant”), on 12 April 2021;
the decision to give notice to the Croatian Government (“the Government”) of the complaint concerning the right to respect for family life;
the decision not to have the applicant’s, his children’s and the children’s mother’s names disclosed;
the parties’ observations;
Having deliberated in private on 5 July 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns proceedings for the return of children under the Hague Convention on the Civil Aspects of International Child Abduction in which the domestic courts refused to order the return of the applicant’s four children to Germany after their mother had retained them in Croatia.
THE FACTS
2. The applicant was born in 1982 and lives in Oroslavje. He was represented by Ms V. Adler, a lawyer practising in Zagreb.
3. The Government were represented by their Agent, Ms Š. Stažnik.
4. The facts of the case may be summarised as follows.
I. Background to the case
5. The applicant and Ms X (hereinafter “the children’s mother” or “the mother”) lived as an unmarried couple from 2007 and had four children born in 2008, 2010, 2012 and 2015 respectively. The children were all born in Croatia. The applicant, the children’s mother and the children are all Croatian nationals.
6. In the period between 2011 and 2018 the family lived in Greece (2011), Croatia (2012-2014) Slovakia and Hungary (2015), Sweden (2016) and France (2017), and again in Croatia from spring 2018. In October 2018 the relationship between Ms X and the applicant ended.
7. According to the Government, the parents had an unconventional way of life and of raising children, which included refusing to enrol their children in the public education system. On account of the latter, the parents were even convicted of a minor offence in Croatia in 2018.
II. Events giving rise to the dispute
8. On 22 October 2018, the children’s mother gave the applicant written consent to take the children from Croatia, where they lived at the time, to Germany and to take care of them there, fully and independently.
9. The applicant moved with the children to Germany, where they had their registered residence from 3 December 20l8 onwards. There, the applicant enrolled the children in a private school and kindergarten.
10. On 18 July 2019 the children’s mother revoked her consent to the applicant having care of the children.
11. On 9 August 2019 the mother came for the children to Germany and took them to Croatia.
12. After the summer holidays, she refused to return them to Germany. The applicant then returned to Croatia, where he has been living since.
III. Proceedings in Germany
13. On 9 September 2019, the applicant lodged an application for a provisional measure with a family court in Germany – namely with the Singen District Court (Amtsgericht Singen). He requested that the court grant him the right to independently determine his children’s place of residence and that it order the mother to hand the children over to him.
14. On 11 September 2019 the German family court informed the applicant’s representative that it had jurisdiction regarding the request concerning the children’s place of residence. At the same time, it suggested that the applicant’s request for the handover of the children be withdrawn because it was inadmissible, given that the children were in another country. The court instructed the applicant that he should pursue his request in proceedings based on the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter “the Hague Child Abduction Convention” – see paragraphs 46-47 below). It would appear that the applicant therefore withdrew his request for the handover of the children.
15. By a decision of 21 November 2019, the family court dismissed the applicant’s request for a provisional measure. It held that there was no urgency that could justify temporarily granting him the right to independently determine his children’s place of residence.
16. In so deciding the family court explicitly referred to section 99(1) of Croatia’s Family Act (see paragraph 37 below), concluding that under Croatian law unmarried parents had joint parental responsibility. It then referred to Article 16 § 3 of the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereinafter “the Hague Jurisdiction Convention” – see paragraphs 48-49 below) and concluded that the applicant retained the parental responsibility that he had acquired under Croatian law even after the children had moved to Germany and established their habitual residence there.
IV. PROCEEDINGS in croatia
A. Proceedings for the return of the children
17. Meanwhile, on 9 October 2019, the applicant instituted proceedings for the return of his children to Germany in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu). He relied on the Hague Child Abduction Convention and Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (hereinafter “the Brussels II bis Regulation” – see paragraph 50 below).
18. He argued that the children’s mother had wrongfully retained them in Croatia after the summer holidays. The mother opposed his request, arguing that she and the applicant had agreed on taking the children back to Croatia permanently.
19. In the course of the email correspondence between the German and Croatian Central Authorities (within the meaning of the Hague Child Abduction Convention), on 30 October 2019 a judicial assistant at the German Federal Office of Justice (Bundesamt für Justiz) wrote a letter in reply to the Croatian Ministry of Demographics, Family, Youth and Social Policy. The relevant part of that letter reads as follows:
“… regarding your request for [a copy of] the provisions of German law regarding parental care, with [a] translation into the Croatian language by [a] court interpreter, I would once again like to draw your attention to the fact that German law is not applicable in this case. As already stated in my letter of 9 October 2019, the parents of the children were never married [to] each other. The children were born in Croatia, where they [previously] lived with their parents. Therefore, the parents had joint custody [of] the children in Croatia [, under] … the Croatian Family [Act].
At the end of October 2018, the applicant [and] the children, moved to Germany with the certified consent of the … mother. As a consequence, joint custody of the parents [under] Croatian law subsists in Germany [on the basis of Article 16 § 3] of the Hague Jurisdiction Convention.
Therefore, I am wondering whether the transmission of the – not relevant – provisions of the German law regarding parental care, with [a] translation into the Croatian language by [a] court interpreter, is really needed and I kindly ask you to check my concerns and to inform me [of] the result as soon as possible.”
20. It would appear that the judge of the Zagreb Municipal Civil Court assigned to hear the case was not aware of the above-mentioned correspondence.
21. On 5 November 2019 a hearing was held at which the applicant’s representative informed the court that the day before she had received certain correspondence in German between the Croatian and the German authorities related to the case and that she had brought a copy thereof to the hearing. The court invited her to submit it within three days in a sufficient number of copies for all the participants in the proceedings.
22. At the same hearing the mother’s representative argued that the court should consider the children’s integration into a social and family environment in Croatia, emphasising the fact that all the children’s maternal and paternal grandparents and all their relatives lived in Croatia, whereas in Germany they had no one.
23. On 12 November 2019 a judge of the Zagreb Municipal Civil Court (who had been appointed contact judge for the purposes of the International Hague Network of Judges and the European Judicial Network) requested, through direct email correspondence with her German counterpart (see paragraph 42 below), information regarding the parental responsibility under German law of fathers of children born out of wedlock. She indicated that that issue was decisive in return proceedings conducted under the Hague Child Abduction Convention and that the case concerned Croatian nationals and the return of the children from Croatia to Germany, where the children had had their last habitual residence. The contact judge in Germany referred her to Article 1626a of the German Civil Code (see paragraph 44 below), under which mothers of children born out of wedlock had sole custody and that fathers had no rights unless both parents agreed on joint custody or a court imposed it.
24. By a decision of 15 November 2019, the Municipal Court dismissed the applicant’s request for the return of the children. The court firstly held that at the time of the lodging of the request the children had had their habitual residence in Germany. Therefore, the relevant law for the purposes of assessing whether their retention in Croatia had been in breach of the applicant’s rights of custody (and thus wrongful within the meaning of Article 3 § 1 of the Hague Child Abduction Convention and Article 2 of the Brussels II bis Regulation – see paragraphs 47 and 50 below) was German law.
25. The court then referred to Article 1626a of the German Civil Code and concluded that under paragraph 3 of that Article, the mother of children born out of wedlock had sole parental responsibility if none of the conditions set out in paragraph 1 of that Article were met (see paragraph 44 below). Since those conditions had not been met in the case at hand, the retention of the applicant’s children in Croatia by their mother had not been in breach of his rights of custody because he had not in fact had any such rights in the first place. Consequently, the retention of his children in Croatia had not been wrongful within the meaning of Article 3 § 1 of the Hague Child Abduction Convention and Article 2 § 11 of the Brussels II bis Regulation. This was the sole reason for dismissing the applicant’s request.
26. The applicant appealed. In his appeal he argued that under Croatian law (see paragraphs 35 and 37 below) he had automatically, as a parent, acquired parental responsibility because the children had been born in Croatia. He could not have lost that right by virtue of the fact that he and the children had moved to Germany, as that would have been contrary to Article 16 § 3 of the Hague Jurisdiction Convention, which was binding on both Croatia and Germany (see paragraphs 48-49 below). In support of his arguments the applicant enclosed the above-mentioned letter from the German Federal Office of Justice dated 30 October 2019 and the decision of the Singen District Court of 21 November 2019 (see paragraphs 15-16 and 19 above).
27. By a decision of 15 January 2020, the Zagreb County Court (Županijski sud u Zagrebu) dismissed the applicant’s appeal and upheld the first-instance decision. That court did not in any way refer to the applicant’s arguments based on the Hague Jurisdiction Convention. The relevant part of the second-instance decision reads as follows:
“The … appeal … is ill-founded.
…
Having regard to the finding … that the parents of the children are not married, that the children had registered residence in Germany from 3 December 2008 and that at the time of the lodging of the request they had their habitual residence in Germany, the relevant law for the purposes of assessing whether the children’s removal or retention was wrongful … is German law.
The issue of parental responsibility is in Germany regulated by the Civil Code, which in Article 1626a regulates parental responsibility of minor children born out of wedlock …
The said norm provides that the parents of a minor child born out of wedlock shall have joint parental responsibility:
– if they make a declaration to that effect (a declaration of joint parental responsibility),
– if they marry each other, or
– if the family court transfers parental responsibility to both parents jointly.
Paragraph 2 of the same provision stipulates that, at the request of one of the parents, the family court shall transfer parental responsibility or a part thereof to both parents jointly … if that is not contrary to the best interests of the child. If the other parent does not present any reasons for not transferring joint parental responsibility, and if such reasons are not otherwise apparent, it shall be presumed that joint parental responsibility is not contrary to the best interests of the child. Paragraph 3 provides that, otherwise, the mother shall have parental responsibility.
… It follows from the above-mentioned provisions of the relevant law that … the conditions under which the parents would have joint parental responsibility over the minor children were not met in the present case and that only the mother has the parental responsibility. Therefore, the retention of the children in Croatia by the mother was not wrongful within the meaning of Article 3 § 1 of [the Hague Child Abduction Convention] and Article 2 § 11 of the Brussels II bis Regulation, and the request [for the return of the children] was dismissed…
The appellant’s argument contesting the finding of the first-instance court that the children’s mother wrongfully retained their common children in Croatia … is ill‑founded because the parents did not have joint parental responsibility over [the] children, which belonged only to the mother.
The first-instance court … thus correctly applied the relevant law when it dismissed the request [for the return of the children].”
28. The applicant then, on 28 February 2020, lodged a constitutional complaint alleging that the decisions of the civil courts had been in breach of his right to fair proceedings and his right to respect for his family life, as guaranteed by the Croatian Constitution. He argued that the civil courts had misapplied the relevant substantive law because they had applied German law instead of Article 16 § 3 of the Hague Jurisdiction Convention and the Croatian Family Act, under which he and the children’s mother had joint parental responsibility, which he could not have lost by moving to Germany.
29. By a decision of 18 February 2021, the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and on 4 March 2021 notified his representative of its decision.
30. The Constitutional Court endorsed the reasons given by the civil courts and held that there had been no breach of the constitutional rights that the applicant relied on. As regards his argument based on the Hague Jurisdiction Convention, the court dismissed it as ill-founded, referring to Article 7 §§ 1 and 2 of that Convention, which sets out the situations in which the removal or the retention of a child is to be considered wrongful (see paragraph 49 below). The relevant part of the Constitutional Court’s decision reads as follows:
“15.2 [As regards] the complainant’s argument that according to Article 16 § 3 of the [Hague Jurisdiction Convention] the change of habitual residence to another State does not affect the issue of parental responsibility, the Constitutional Court notes that Article 16 § 3 of the [said Convention] provides [that] ‘3. Parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State.’ However, section 7 §§ 1 and 2 of the [Hague Jurisdiction Convention] provide:
‘(1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State.
…
(2) 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 …’
The Constitutional Court [therefore] finds the said argument by the complainant ill‑founded.
16. It follows … that the reasons given in the contested decisions are relevant and sufficient …and do not disclose … any arbitrariness … The Constitutional Court therefore finds that the complainant’s constitutional rights [to fair proceedings and respect for his family life] were not breached by the contested decisions.”
B. Other relevant proceedings
31. Meanwhile, on 3 October 2019 the children’s mother brought a civil action against the applicant in the Zlatar Municipal Court (Općinski sud u Zlataru) seeking to be awarded the right to have the children live with her.
32. At the hearing of 9 April 2021, the applicant proposed that the three younger children live with their mother and that the oldest child live with him after the end of the school year.
33. By a judgment of 21 April 2021, the court decided (a) that all four children were to live with their mother; (b) that she would independently exercise parental responsibility, and (c) granted the applicant access (contact) rights, to be exercised in the presence of a childcare professional.
34. The applicant appealed, and the case is currently pending before the second-instance court.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. CROATIAN LAW
A. Family Act
35. Under the Family Act of 2003 (Obiteljski zakon, Official Gazette no. 163/03 with subsequent amendments), which was in force between 22 July 2003 and 1 November 2015, that is, at the time of birth of each of the applicant’s children (see paragraph 5 above), both parents of a child (whether born within wedlock or not) acquired parental responsibility jointly by operation of law.
36. Section 97 provided that parents had the right to live with their child unless that was contrary to the child’s welfare.
37. Section 99(1) provided that parents, regardless of whether they lived together or separately, were to care for their child equally, jointly and consensually, unless otherwise provided by the Family Act. Section 99(2), provided that only one parent was to care for the child if the other parent had died, had been declared dead, had been deprived of parental responsibility or fully deprived of legal capacity or partially deprived of legal capacity in relation to parental care, or was otherwise prevented from caring for the child.
38. Section 100 provided that if the parents did not live as a family the court had to decide with which parent the child would live and to determine the manner and times of the child’s contacts with the other parent.
B. The Hague Child Abduction Convention Implementation Act
39. On 1 January 2019 the Act Implementing the Convention on the Civil Aspects of International Child Abduction (Zakon o provedbi Konvencije o građanskopravnim vidovima međunarodne otmice djece, Official Gazette no. 99/18) entered into force. Its purpose was to ensure more efficient and consistent implementation of the Hague Child Abduction Convention, which requires coordinated action by administrative and judicial authorities. The Act thus comprehensively regulates and streamlines the proceedings for the return of the child. More specifically, it aims to establish an effective mechanism that enables swift exchange of information between the relevant authorities, enhances the transparency of the proceedings and prevents unnecessary delays.
40. Section 2 provides that in the proceedings for the return of the child under the Hague Child Abduction Convention the relevant provisions of the Hague Jurisdiction Convention shall also apply within their scope.
41. Section 14 concentrates jurisdiction for international child abduction cases in a single first-instance court (Zagreb Municipal Civil Court) and in a single appellate court (Zagreb County Court).
42. Section 19 provides that in such proceedings the courts can cooperate with the courts of another State through direct communication between the judges or through relevant judicial network.
II. GERMAN LAW
43. The statutory provisions on custody and contact rights are to be found in the Civil Code (Bürgerliches Gesetzbuch). Article 1626 § 1 of the Civil Code provides that the father and the mother have the right and the duty to exercise parental responsibility (elterliche Sorge) over a child.
44. Under Article 1626a § 1 of the Civil Code, the parents of a minor child born out of wedlock shall have joint parental responsibility:
– if they make a declaration to that effect (a declaration of joint parental responsibility),
– if they marry each other, or
– if the family court transfers parental responsibility to both parents jointly, in accordance with paragraph 2 of that Article (see the next paragraph).
Otherwise, as provided by Article 1626a § 3, the mother shall have (sole) parental responsibility.
45. Article 1626a § 2 provides that, at the request of one of the parents, the family court shall transfer parental responsibility or a part thereof to both parents jointly if that is not contrary to the best interests of the child. If the other parent does not present any reasons for not transferring joint parental responsibility, and if such reasons are not otherwise apparent, it shall be presumed that joint parental responsibility is not contrary to the best interests of the child.
III. INTERNATIONAL LAW
A. The Hague Child Abduction Convention
46. The Hague Convention on the Civil Aspects of International Child Abduction was concluded on 25 October 1980 and entered into force on 1 December 1983. It entered into force in respect of Croatia, by notification of succession, on 1 December 1991 and in respect of Germany on 1 December 1990.
47. The relevant provisions of that Convention read as follows:
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 the retention; and
b) ….
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 5
“For the purposes of this Convention –
a) ̒rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
b) ′rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”
…
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 … had consented to or subsequently acquiesced in the removal or retention; …”
Article 14
“In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.”
B. The Hague Jurisdiction Convention
48. The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children was concluded on 19 October 1996 and entered into force on 1 January 2002. It entered into force in respect of Croatia on 1 January 2010 and in respect of Germany on 1 January 2011.
49. The relevant provisions of that Convention read as follows:
Chapter I – Scope of the Convention
Article 1
“(1) The objects of the present Convention are –
…;
c) to determine the law applicable to parental responsibility;
…
(2) For the purposes of this Convention, the term ‘parental responsibility’ includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.”
…
Article 7
“(1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and
a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.
(2) 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) …
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.
(3) So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.
Chapter III – Applicable law
…
Article 16
“(1) The attribution or extinction of parental responsibility by operation of law, without the intervention of a judicial or administrative authority, is governed by the law of the State of the habitual residence of the child.
(2) The attribution or extinction of parental responsibility by an agreement or a unilateral act, without intervention of a judicial or administrative authority, is governed by the law of the State of the child’s habitual residence at the time when the agreement or unilateral act takes effect.
(3) Parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State.
(4) If the child’s habitual residence changes, the attribution of parental responsibility by operation of law to a person who does not already have such responsibility is governed by the law of the State of the new habitual residence.”
…
Article 21
“(1) In this Chapter the term ‘law’ means the law in force in a State other than its choice of law rules.”
…
Chapter VI – General provisions
…
Article 50
“This Convention shall not affect the application of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, as between Parties to both Conventions. Nothing, however, precludes provisions of this Convention from being invoked for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organising access rights.”
IV. EUROPEAN UNION LAW
50. The relevant provisions of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility read as follows:
Article 2
Definitions
“For the purposes of this Regulation:
…
7. the term ‘parental responsibility’ shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access;
8. the term ‘holder of parental responsibility’ shall mean any person having parental responsibility over a child;
9. the term ‘rights of custody’ shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child’s place of residence;
…
11. the term ‘wrongful removal or retention’ shall mean a child’s removal or retention where:
(a) it is in breach of rights of custody acquired by judgment or by operation of law or by an agreement having legal effect under the law of the Member State where the child was habitually resident immediately before the removal or retention;
and
(b) provided that, at the time of removal or retention, the rights of custody were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Custody shall be considered to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child’s place of residence without the consent of another holder of parental responsibility.”
…
Article 11
Return of the child
“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter ‘the 1980 Hague Convention’), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.
…”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
51. The applicant complained that by refusing to order the return of his children to Germany, the domestic courts had violated his right to respect for his family life. He relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his … family life …
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. Admissibility
1. Parties’ submissions
(a) The Government
52. The Government disputed the admissibility of this complaint on several grounds.
53. Firstly, they submitted that Article 8 was inapplicable in the present case. According to the Court’s case-law, the obligations which that Article imposed on the Contracting States in international child abduction cases had to be interpreted in the light of the Hague Child Abduction Convention. However, in the present case the domestic courts had established that the retention of the applicant’s children in Croatia by their mother had not been wrongful within the meaning of Article 3 § 1 of that Convention (see paragraphs 24-25, 27 and 29-30 above). The case thus did not concern international child abduction within the meaning of that Convention, which therefore did not apply. Consequently, Article 8 of the European Convention on Human Rights did not apply either.
54. In the alternative, the Government submitted that this complaint was incompatible ratione personae with the provisions of the Convention because the alleged violation could not be attributed to the respondent State. They pointed out that the Singen District Court had (a) refused to temporarily grant the applicant the right to independently determine his children’s place of residence and (b) indicated that the issue of the handover of the children would be decided by Croatian courts during the return proceedings conducted under the Hague Child Abduction Convention (see paragraphs 14-15 above), which suggested that it had considered that the retention of the children in Croatia had been wrongful, within the meaning of that Convention.
55. However, under Article 7 of the Hague Jurisdiction Convention, in the event of wrongful retention the authorities of the Contracting State in which the child had been habitually resident immediately before the retention in question retained their jurisdiction until the child acquired a habitual residence in another State (see paragraph 49 above). At the time that the Singen District Court had adopted its decision that State had been Germany, whose jurisdiction under Article 16 of the Hague Jurisdiction Convention (see paragraph 49 above) also extended to matters of parental responsibility, which included the right to independently determine children’s place of residence.
56. This meant that if the Singen District Court had been of the view that the retention of the children in Croatia by their mother was wrongful (see paragraph 54 above), it had had jurisdiction to decide on the applicant’s right to independently determine his children’s place of residence. That court’s refusal to decide on that crucial aspect of the applicant’s parental responsibility had affected the outcome of the return proceedings before the Croatian courts, which, in the absence of any formal decision, had found that the applicant did not have parental responsibility – that is, the right of custody under the German law (see paragraphs 15, 24-25, 27 and 29-30 above).
57. The Government therefore considered that Germany had been responsible for the emergence of circumstances that had resulted in the Croatian courts refusing to order the children’s return.
58. Lastly, the Government argued that the applicant was not a victim of the violation complained of because he had agreed that the children would live with their mother in Croatia.
59. The facts of the case showed that the agreement between the applicant and the children’s mother had been that the children would temporarily live with the applicant in Germany (see paragraph 8 above). The mother had given her consent for him to take the children to Germany because she had been unemployed at the time and had been unable to provide appropriate accommodation for the children. Therefore, the consent that she had given him had by its very nature been temporary (the applicant had been aware of this), and she had ultimately revoked it (see paragraph 10 above).
60. Moreover, the applicant had moved shortly after August 2019 to Croatia, where he had remained to date (see paragraph 12 above). Therefore, his application to have the children returned to Germany had become irrelevant.
61. Even subsequently, during the custody proceedings, the applicant had proposed that the three younger children live with their mother and that the oldest child live with him after the end of the school year (see paragraph 32 above). Given such circumstances, the applicant could not claim to be a victim of the violation complained of in respect of the three younger children because he had agreed that custody of them be awarded to the mother (the Government referred to Vujica v. Croatia, no. 56163/12, §§ 67-68, 8 October 2015).
(b) The applicant
62. In reply to the Government’s argument that Article 8 was inapplicable, the applicant, in essence, reiterated the arguments that he had advanced before the domestic courts to the effect that the retention of his children in Croatia by their mother had been wrongful and that the Hague Child Abduction Convention was applicable (see paragraphs 26 and 28 above).
63. As regards the Government’s objection that the violation complained of had not been attributable to the Croatian but to the German authorities, the applicant replied that the Singen District Court had not been asked to decide on his custody rights and thus could not have refused to decide on those rights. Moreover, its decision had not had any influence on the Croatian courts’ decision to dismiss his application for the return of his children.
64. The applicant submitted that he had never consented to the children’s retention in Croatia and that he had subsequently come back to Croatia only because he had wished to be as close as possible to them. He would not have returned if there had been no proceedings in Croatia regarding his children.
65. Lastly, he submitted that he had proposed during the custody proceedings that the three younger children live with their mother but that he had made that proposal only after the adoption of the final decision in the proceedings for their return (see paragraphs 24, 27 and 29 above). He added that he had never agreed that the mother would have sole custody of the children.
2. The Court’s assessment
66. As to the Government’s objection that the alleged violation was not attributable to the Croatian but to the German authorities, the Court finds that their arguments in this regard are difficult to understand (see paragraphs 54‑57 above) and that there is nothing to suggest that the Singen District Court’s decision had influenced the decisions of the Croatian courts in the return proceedings. The Government’s arguments thus cannot be accepted. It follows that the Government’s objection that the complaint was incompatible ratione personae with the provisions of the Convention must be rejected.
67. In so far as the Government’s objection concerning the applicant’s lack of victim status is based on the proposal made by him during the custody proceedings that the three younger children live with their mother, the Court finds that the circumstances of the present case are different from those in Vujica (cited above). In that case the return and custody proceedings were pending concurrently, and the applicant, having agreed during custody proceedings that custody of her two older children be awarded to their father, could not insist that they nevertheless be returned to her in the concurrent proceedings conducted under the Hague Child Abduction Convention (ibid., §§ 20, 26, 37 and 67-68).
68. In the present case the custody proceedings took place after the return proceedings had ended, and the applicant averred that his proposal that the three younger children live with their mother had been influenced by the domestic courts’ decision to dismiss his application for the return of the children (see paragraphs 29, 32 and 65 above).
69. It follows that the Government’s objection concerning the applicant’s lack of victim status, in so far as it is based on the proposal made by the applicant during the custody proceedings that the three younger children live with their mother, must be rejected.
70. As regards the Government’s remaining arguments about the applicant’s victim status, the Court considers that they concern the issue of whether the applicant consented to, or subsequently acquiesced in, the retention of his children in Croatia, within the meaning of Article 13 § 1 (a) of the Hague Child Abduction Convention (see paragraph 47 above). Having regard to its case-law (see Kupás v. Hungary, no. 24720/17, §§ 52-62, 28 October 2021), the Court considers that those arguments will more appropriately be addressed at the merits stage (see paragraph 92 below).
71. Similarly, as regards the Government’s arguments about the inapplicability of Article 8 of the Convention, the Court considers that they concern the issue of whether the retention of the applicant’s children in Croatia was wrongful, within the meaning of Article 3 § 1 (a) of the Hague Child Abduction Convention and Article 2 § 11 of the Brussels II bis Regulation (see paragraphs 47 and 50 above). Having regard to its case-law (see V.P. v. Russia, no. 61362/12, §§ 124-33, 23 October 2014), the Court considers that those arguments will also be more appropriately addressed at the merits stage (see paragraph 92 below).
72. The Court further notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. Parties’ submissions
(a) The applicant
73. The applicant first repeated the argument, which he had raised before the domestic courts, that the retention of his children in Croatia by their mother had been wrongful and that the Hague Child Abduction Convention was applicable (see paragraphs 26, 28 and 62 above). He again pointed to Article 16 § 3 of the Hague Jurisdiction Convention (see paragraph 49 above) and emphasised that his parental responsibility, acquired under Croatia law, had subsisted after he had moved with his children to Germany.
74. In reply to the Government’s argument that the children had not had their habitual residence in Croatia before moving to Germany (see paragraphs 76-77 below), he averred that they had. In this regard he emphasised that Croatia was the country with which the children had the closest connection: they had been born in Croatia and were, like their parents, Croatian nationals. They had always returned to Croatia after the family’s numerous temporary stays abroad. The fact that they had not attended school or kindergarten was linked to their parents’ specific lifestyle (see paragraph 7 above). The older children had taken correspondence courses and had been home schooled. The applicant also pointed to the arguments advanced by the representative of the children’s mother during the return proceedings concerning their integration into a social and family environment in Croatia (see paragraph 22 above).
(b) The Government
75. The Government reiterated their argument advanced above (see paragraph 53) that the domestic courts had established that the retention of the applicant’s children in Croatia by their mother had not been wrongful within the meaning of Article 3 § 1 of the Hague Child Abduction Convention (see paragraphs 24-25, 27 and 29-30 above). The case thus did not concern international child abduction, and the State’s obligations under Article 8 of the present Convention could not have been interpreted in the light of that Hague Convention.
76. The Government further opposed the applicant’s arguments regarding the applicability of Article 16 § 3 of the Hague Jurisdiction Convention. Specifically, they argued that the children had not had their habitual residence in Croatia before moving to Germany and that therefore he could not have acquired parental responsibility under Croatian law, which would have subsisted in Germany.
77. In this regard the Government pointed out that according to the Court’s case-law, habitual residence corresponded to the place that reflected some degree of integration by the child (they referred to Michnea v. Romania, no. 10395/19, § 28, 7 July 2020). However, before moving to Germany, the family had lived in Croatia, Greece, Slovakia, Sweden and France, and again in Croatia since 2018 (see paragraphs 6-9 above). The applicant’s children had been born between 2008 and 2015 (see paragraph 5 above), which meant that some of the children had actually resided in Croatia for only a few months and had not attended a school or kindergarten there.
78. Lastly, the Government submitted that the domestic courts’ refusal to order the return of the applicant’s children to Germany had been in accordance with the law, that it had pursued the legitimate of aim of protecting the rights of others (namely his children), and that it had been proportional to that aim.
2. The Court’s assessment
(a) General principles
79. The relevant principles regarding the right to respect for family life under Article 8 of the Convention in cases concerning the return of a child under the Hague Child Abduction Convention are summarised in X v. Latvia ([GC], no. 27853/09, §§ 92-108, ECHR 2013) and have been recently reiterated in Michnea (cited above, §§ 35-39).
(b) Application of these principles to the present case
80. In the present case, the Court observes that the primary interference with the applicant’s right to respect for his family life cannot be attributed to an action or omission on the part of the respondent State but rather to the actions of the children’s mother, a private party, who retained the children in Croatia (compare Vladimir Ushakov v. Russia, no. 15122/17, § 85, 18 June 2019, and Kupás, cited above, § 44).
81. By a decision of 15 November 2019, the Zagreb Municipal Civil Court dismissed the applicant’s request for the return of the children, finding that the Hague Child Abduction Convention was not applicable (see paragraphs 24-25 above). That decision amounted to an interference with the applicant’s right to respect for his family life (see Vladimir Ushakov, cited above, § 87, and Adžić v. Croatia (no. 2), no. 19601/16, § 79, 2 May 2019 and the cases cited therein), it being understood that the mutual enjoyment by a parent and a child of each other’s company constitutes a fundamental element of family life protected under Article 8 of the Convention (ibid.). It follows that Article 8 of the Convention is applicable in the present case.
82. The Court must examine whether the interference in question was justified in terms of Article 8 § 2. It reiterates that any interference with the right to respect for family life constitutes a violation of that Article unless it is “in accordance with the law”, pursues a legitimate aim, and can be regarded as “necessary in a democratic society” (see, for example, Adžić (no. 2), cited above, § 80).
(i) Lawfulness and legitimate aim
83. The Court first observes that the civil courts’ decisions were based on Article 3 § 1 of the Hague Child Abduction Convention and Article 2 § 11 of the Brussels II bis Regulation, which, in the view of those courts, led to the application of Article 1626a § 3 of the German Civil Code (see paragraphs 24-25, 27 and 29-30 above). However, the applicant argued (see paragraphs 26, 28, 62 and 73 above) – relying on Article 16 § 3 of the Hague Jurisdiction Convention and the relevant findings and the opinion of the German authorities (see paragraphs 15-16, 19 and 49 above) – that the said Article of the German Civil Code was not applicable in his case and that the Hague Child Abduction Convention was applicable. If his arguments were to be accepted, this would render the interference with his right to respect for his family life unlawful.
84. However, the Court considers that it may leave open the issue of the lawfulness of the impugned interference because the applicant’s arguments in this regard are also material considerations to be taken into account in the assessment of whether the interference was “necessary in a democratic society” and will thus be further addressed below (see paragraphs 86-91).
85. The Court further notes that the interference in question pursued the legitimate aim of protecting the rights and freedoms of others – namely the rights of the applicant’s children.
(ii) Necessity of the interference in a democratic society
86. The Court reiterates that in determining whether an interference with one’s right to family life was “necessary in a democratic society”, it must examine whether a fair balance was struck between the competing interests at stake – those of the child, of the two parents, and of public order – within the margin of appreciation afforded to States in such matters (see, for example, Adžić (no. 2), cited above, § 82, and the cases cited therein). In so doing, it must assess whether, in the light of the case as a whole, the reasons adduced to justify the interference were relevant and sufficient for the purposes of Article 8 § 2 (ibid., and the cases cited therein).
87. Insufficient reasoning in a ruling dismissing or accepting objections to the return of a child under the Hague Child Abduction Convention would be contrary to the requirements of Article 8 of the Convention (see X v. Latvia, cited above, §§ 106-7, and Blaga v. Romania, no. 54443/10, § 70, 1 July 2014). The Court considers that this requirement also applies mutatis mutandis to reasoning regarding the issue of the applicability of the Hague Child Abduction Convention. Otherwise, the domestic courts would be able to circumvent that requirement and effectively refuse to order the return of a child by finding that Convention inapplicable without giving sufficient reasons.
88. The Court notes that in his appeal against the first-instance decision the applicant argued that he had automatically, as a parent, acquired parental responsibility under the Croatian law because his children had been born in Croatia and that he could not have lost it when he and the children had moved to Germany, as this would have been contrary to Article 16 § 3 of the Hague Jurisdiction Convention (see paragraph 26 above). He enclosed with his appeal the letter from the German Federal Office of Justice of 30 October 2019 and the decision of the Singen District Court of 21 November 2019 (see paragraphs 15-16, 19 and 26 above).
89. In the light of the finding of the first-instance court (see paragraphs 24-25 above), those arguments were relevant for the issue of whether the retention of the applicant’s children in Croatia by their mother could be considered wrongful within the meaning of Article 3 § 1 of the Hague Child Abduction Convention and Article 2 of the Brussels II bis Regulation (see paragraphs 47 and 50 above). In the Court’s view, their nature and importance therefore required a specific and express reply. However, in its decision of 15 January 2020 the appellate court did not address those arguments at all (see paragraph 27 above).
90. The applicant reiterated those arguments in his constitutional complaint (see paragraph 28 above). However, the Constitutional Court in its decision of 18 February 2021 addressed those arguments by referring to Article 7 of the Hague Jurisdiction Convention, without any further explanation as to how that Article was relevant for the purposes of dismissing the said arguments (see paragraphs 29-30 above).
91. Given these circumstances the Court finds that the reasons adduced by the domestic courts to justify the interference with the applicant’s right to respect for his family life were neither relevant nor sufficient for the purposes of Article 8 § 2 of the Convention (see paragraph 86 above).
92. As regards the Government’s arguments that the applicant and his children had not had their habitual residence in Croatia before moving to Germany (see paragraphs 76-77 above), and that the applicant had consented to, or subsequently acquiesced in, their retention (see paragraphs 58-60 and 70 above), the Court notes that these issues were not examined by the domestic courts in the return proceedings in question. In these circumstances, and having regard to the principle of subsidiarity, the Court does not find appropriate to examine them either.
93. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 8 of the Convention in the present case.
94. Lastly, the Court observes that there is no basis for the present judgment as such to be interpreted as requiring the respondent State to return the children to Germany now (see, mutatis mutandis, Adžić (no. 2), cited above, § 96, and the cases cited therein).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
95. In his observations of 10 November 2021, the applicant for the first time complained that the proceedings for the return of his children had been unfair, particularly given the way that the information on relevant German law had been obtained (see paragraph 23 above). He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
96. The Court notes that the last domestic decision within the meaning of Article 35 § 1 of the Convention in the proceedings complained of was served on the applicant’s representative on 4 March 2021 (see paragraph 29 above), whereas the applicant submitted this complaint for the first time in his observations of 10 November 2021 – that is, more than six months later.
97. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-compliance with the six-month time-limit and that it must therefore be rejected, pursuant to Article 35 § 4 thereof.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
98. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
99. The applicant claimed 60,000 euros (EUR) in respect of pecuniary damage sustained by his having to move to Croatia to be close to his children (see paragraph 12 above) and to leave his job in Germany. He explained that in Germany he had been earning EUR 1,200 per month, whereas in Croatia he could not find a proper job and was still unemployed. The applicant also claimed EUR 60,000 in respect of non-pecuniary damage.
100. The Government contested those claims.
101. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 11,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
102. The applicant also claimed EUR 7,417.52 for the costs and expenses incurred before the domestic courts.
103. The Government contested that claim, emphasising that the applicant could only seek the costs incurred in the return proceedings (see paragraphs 17-30 above) and not the costs of any other proceedings in Croatia concerning his children (see paragraphs 31-34 above) or the costs of the proceedings in Germany (see paragraphs 13-16 above).
104. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,100 for costs and expenses in the domestic return proceedings, plus any tax that may be chargeable to the applicant. This sum is to be paid directly into the bank account of the applicant’s representative.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 11,000 (eleven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,100 (one thousand one hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of his representative;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 1 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata Degener Marko Bošnjak
Registrar President
Leave a Reply