Last Updated on November 4, 2019 by LawEuro
Information Note on the Court’s case-law 215
February 2018
M.K. v. Greece – 51312/16
Judgment 1.2.2018 [Section I]
Article 8
Positive obligations
Article 8-1
Respect for family life
Refusal of Greek father to comply with court order requiring him to return child to mother in France: no violation
Facts – The present case concerned the inability of the applicant, a Romanian national divorced from her Greek husband and living and working in France, to be reunited with one of her sons following a judgment of the Greek courts in September 2015 awarding her permanent custody. The situation arose from the refusal of the child’s father to return her son to her.
Law – Article 8: The non-enforcement of the decision awarding her custody had deprived the applicant of the opportunity to be with her son and therefore constituted interference with the exercise of her right to respect for her family life.
In view of the final nature of the judgment, it had been incumbent on the judicial and administrative authorities and the social workers to take steps to ensure its enforcement. After the mother had applied to the public prosecutor in July 2016, the social workers had taken action to trace the father in order to secure enforcement of the judicial decision. However, having traced him, the authorities had observed that the child wished to remain living with his father and his brother and that he felt more secure with them. In September 2016 the child had reiterated to the psychologist at the psychiatric clinic that he wanted to stay in Greece.
Article 7 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction required the Central Authorities of the Contracting States to cooperate with each other and promote cooperation amongst the competent authorities in their respective States to secure the voluntary return of the child or to bring about an amicable resolution. Nevertheless, given the circumstances of the present case and in particular the highly confrontational relationship between the applicant and her ex-husband and the fact that she lived in France, it would have been difficult for the authorities to prioritise cooperation and negotiation between the parents, or mediation as advocated by Recommendation No R (98) 1 of the Committee of Ministers of the Council of Europe on family mediation. Furthermore, the child had reached the age of understanding and his clearly expressed wish to remain in Greece was bound to carry significant weight when the authorities considered the various options. As a general rule, children’s best interests precluded any coercive measures concerning them. Moreover, Article 13 of the Hague Convention provided that the judicial or administrative authorities could refuse to order the return of a child if the child objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of his or her views. Referring to that Article, the Brussels IIa Regulation* allowed the requested State to take the child’s interests into consideration, as the Greek authorities had done in the present case.
In any event, the Greek authorities, besides complying with Article 8 of the European Convention, appeared also to have acted in keeping with the spirit of the Hague Convention and the Brussels IIa Regulation. In that regard it had to be borne in mind that the 2015 judgment had been based on information dating back to 2013, when the same judge had ruled that the child should have his residence in France. That judgment had not taken into consideration the fact that the child had a brother who had remained in Greece and that the two were very close. In other words, the judgment had not taken account of the overall family situation. Moreover, the situation had changed radically over the years, to the point where the child no longer wanted to follow his mother to France and had expressed a wish to remain with his father and brother, with whom he felt secure.
The wishes expressed by a child who had sufficient understanding were a key factor to be taken into consideration in any judicial or administrative proceedings concerning him or her.
Having regard to the foregoing and to the respondent State’s margin of appreciation in the matter, the Court held that the Greek authorities had taken the measures that could reasonably be expected of them to comply with their positive obligations under Article 8 of the Convention.
Conclusion: no violation (five votes to two).
(See also the Factsheet on International child abductions)
* 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.
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