Type: Judgment

Authority: European Authorities: European Court of human rights

Date: 12/06/2007

Subject: The Court held: by five votes to two that there had been no violation of Article 8 of the European Convention on Human Rights (right to respect for private and family life) as regards the reasons for the French courts’ order that the applicant’s daughter was to be returned to the United States, and the conditions in which the police intervened to enforce that decision; unanimously that there had been no violation of Article 6 § 1 of the Convention (right to a fair trial). Ms Maumousseau submitted that Charlotte’s return to the United States had been contrary to her daughter’s interests and had placed her in an intolerable situation in view of her very young age. She further alleged that the police intervention at Charlotte’s nursery school in September 2004 would leave her daughter with significant psychological after-effects. In addition, she argued that she had been deprived of her right of access to a court. She relied in particular on Articles 8 and 6 § 1 of the Convention. Article 8 Reasons for the decision ordering Charlotte’s return to the United States The main issue for the Court to determine was whether, in ordering Charlotte’s return to the United States, the French courts had maintained a fair balance between the conflicting interests in the case. The Court considered that the French courts had taken into account Charlotte’s “best interests”, understood as her immediate reintegration into the environment she was familiar with. It noted in particular that they had carefully examined the family situation as a whole, studied a number of different factors, conducted a balanced and reasonable assessment of the respective interests and constantly endeavoured to ascertain what was the best solution for Charlotte. The Court further noted that there was no cause to consider that the decision-making process that led the French courts to order Charlotte’s return to the United States had been unfair or had not permitted the applicants to assert their rights effectively. Conditions of enforcement of the return order The Court noted that since the judgment ordering Charlotte’s return the child had become untraceable, as her mother had hidden her whereabouts from the authorities to evade execution of the decision. That showed Ms Maumousseau’s total lack of cooperation with the French authorities. The circumstances of the police intervention at Charlotte’s nursery school were therefore the result of her mother’s constant refusal to hand the child over to her father voluntarily, despite a court order which had been enforceable for more than six months. Although intervention by the police was not the most appropriate way of dealing with situations like the one in the applicant’s case, and might have traumatic effects, the Court noted that it had taken place under the authority and in the presence of the public prosecutor, a professional State legal officer invested with a high level of decision-making responsibility to under whose orders the accompanying officers were placed. It further noted that, faced with the resistance of the people who had taken the applicants’ side in the dispute, the authorities did not persist in trying to take the child away. Consequently, the Court held that there had been no violation of Article 8. Article 6 § 1 The Court considered that the French authorities were required to give their assistance to ensure Charlotte’s return to the United States in view of the object and purpose of the Hague Convention, unless there were objective reasons to believe that the child, and possibly her mother, might be the victims of a flagrant denial of justice there. The Court noted that the risk mentioned by Ms Maumousseau of being unable to enter United States territory to present her case was purely hypothetical and that although she could apply to the competent American judge she had not done so. In that connection, the Court noted that the French Central Authority had made an unsuccessful attempt to mediate with the child’s father, but was prepared to try again by putting Ms Maumousseau’s case to its American counterpart. Consequently, the Court held that there had been no violation of Article 6 § 1. Judge Zupančič, joined by Judge Gyulumyan, expressed a dissenting opinion, which is annexed to the judgment.

Parties: Maumousseau e Washington c/ Francia

Classification: Freedoms - Art. 7 Privacy - Justice - Art. 47 Right to an effective remedy before a tribunal