CEDH · CASELAW;CLIN;ENG — 21 septembre 2017

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Austria - 53661/15 Judgment 21.9.2017 [Section V] Article 8 Positive obligations Article 8-1 Respect for family life Failure to take adequate steps to enforce order for children’s return under Hague Convention: violation Facts – The applicant was the father of twins born in 2006 and lived with their mother, a dual French and Austrian national, in the family home in France. Under French law, the couple shared joint custody. However, in December 2008, following a dispute, the mother left France with the children and took them to Austria. In February 2009 the applicant brought proceedings in Austria under the Hague Convention and the Brussels IIa Regulation seeking the children’s return.* The Austrian courts found in his favour after rejecting the mother’s allegations that the children would be at risk of abuse by the applicant if returned. In December 2009 the Austrian authorities made an initial attempt to enforce the return order but were unable to trace the mother and children. Subsequently, after obtaining psychological expert evidence and after a series of applications and appeals stretching over several years, the Austrian courts finally refused to enforce the return order amid concerns that the children risked being separated from their mother on a return to France (as she faced a one-year prison sentence there for wrongly removing the children) and that there was a grave risk that such separation would severely traumatise and psychologically harm the children within the meaning of Article   13   (b) of the Hague Convention.** Law – Article   8: The Court accepted that a change in the relevant circumstances could exceptionally justify the non-enforcement of a final return order. However, having regard to the State’s positive obligations under Article   8 and the general requirement of respect for the rule of law, the Court had to be satisfied that the change was not brought about by the State’s own failure to take all measures that could reasonably be expected to facilitate the enforcement of the return order. The Austrian courts had issued the return order relatively swiftly and given detailed and comprehensive reasons why they considered that the mother’s allegations of sexual abuse of the children by the applicant were not credible. After the return order had become final and the mother had failed to comply with it, they had reacted expeditiously by ordering the enforcement of the order and attempting to enforce it by searching for the mother and the children at the known addresses. However, after that first unsuccessful attempt no further steps towards enforcement were taken. The Austrian Government had not submitted any convincing reasons why the domestic courts did not consider any further coercive measures which could have convinced the mother of the legal need to comply with the return order. With the passage of time, the courts’ focus had shifted more and more from the unproven allegations of sexual abuse to the possibility of the children being further traumatised in the event of their return to France. Nearly five and a half years after the initial attempt at enforcement they finally decided against enforcing the return order on the grounds that the children had adapted well to living in Austria and were very likely to be further traumatised on their return because of the imminent separation from their mother. The change in circumstances was thus primarily determined by the passage of time and – regard being had to the failure to adopt any further coercive measures, including measures to locate the family – was mainly attributable to the conduct of the Austrian authorities. In sum, the applicant had not received effective protection of his right to respect for his family life. Conclusion : violation (unanimously). Article   41: EUR 20,000 in respect of non-pecuniary damage. (See also the Factsheet on International Child Abductions ) *   Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction; 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, repealing Regulation (EC) No.   1347/2000. ** Article   13 (b) of the Hague Convention provides that a State is not bound to order the return if   there is a grave risk that it would expose the child to physical or psychological harm.     © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes