CASE OF ROYER v. HUNGARY
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano
6. The applicant, is a French citizen, who was born in 1969 and lives in Gaillard, France. 7. In 2003 the applicant met K.B.V., a Hungarian national. In 2009 K.B.V. moved to France and the couple lived together in the applicant’s flat in Gaillard. On 18 October 2013 their son, L., was born. In December 2013 the couple spent the Christmas holidays with the applicant’s family in Nancy. The applicant returned to their home on 27 December 2013. 8. On 28 December 2013 K.B.V. lodged a complaint against the applicant in Toul. She alleged that the applicant had become hostile and sometimes aggressive towards her and constituted a danger to her and their son. 9. On 4 January 2014 K.B.V. left for Hungary with L, without the prior knowledge or authorisation of the applicant. Since then K.B.V. has lived with L. at her parents’ home in Szombathely. 10. On 9 January 2014 K.B.V. initiated custody proceedings in respect of L. before the Szombathely District Court. 11. On 7 February 2014 the applicant instigated proceedings before the Thonon-Les-Bains tribunal de grande instance. On 24 March 2014 the court found that L. had been illegally taken from France, placed the son with his father (that is to say the applicant), and granted the applicant sole custody. The court ordered the provisional execution of the judgment. Following an appeal by K.B.V., in a judgment of 22 July 2014, the Chambery Court of Appeal granted K.B.V. the right to have supervised contact every other Saturday between 2 p.m. and 4 p.m., awarded the parents joint custody, and upheld the remainder of the first-instance decision. 12. On 28 January 2015 the Chambery Court of Appeal issued a certificate of enforceability under Article 39 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (known “the Brussels II bis Regulation”). 13. On 23 September 2015 the Court of Cassation quashed the secondinstance judgment of the Chambery Court of Appeal and remitted the case to the Lyon Court of Appeal. 14. On 10 December 2014 the Pest Central District Court received from the applicant a request under the Hague Convention on the Civil Aspects of International Child Abduction (Articles 11-12) and the Brussels II bis Regulation for the child to be returned to France. The applicant maintained that L.’s place of residence was in France and that under French law parents exercised their custody rights jointly. K.B.V. had decided on the child’s place of residence without his approval. On 17 November and 4 and 12 December 2014, and 8, 22 and 28 January and 9 February 2015 the court examined the request in the presence of both parents. 15. By a decision of 12 February 2015 the Pest Central District Court dismissed the request under Article 11 of the Hague Convention and Article 11 of the Brussels II bis Regulation. Relying on the definition of child abduction, as provided in Article 3 of the Hague Convention, the court found that K.B.V. had abducted L. from his habitual residence in France, where the parents had exercised their custody rights jointly. However, on the basis of the evidence before it, the court concluded that if L. (who was still being breastfed) were returned to France, he would be placed in uncertain circumstances, only seeing his mother every second week for a couple of hours. It emphasised that according to the applicant’s own submissions, he was away from home from 7 a.m. until 10 p.m. and that it would be difficult for him to look after the child during weekends. Thus, as he suggested, his sister would look after L. The court also noted that the applicant had lodged his request almost a year after L.’s abduction and that although he had visited Hungary on a number of occasions, he had not been in contact with L. Thus, the court dismissed the applicant’s request under Article 13(b) of the Hague Convention. 16. The Budapest High Court upheld the first-instance decision on 28 April 2015. It reiterated the conclusion of the first-instance court that there was a grave risk that L.’s return to France would expose him to harm. In this aspect the court found relevant that L. was only one and a half years old and if returned to France he would be deprived of all maternal care. Thus, under Article 13 of the Hague Convention, the Hungarian courts were not bound to order the child’s return. The court also held that Article 11 § 4 of the Brussels II bis Regulation was not applicable, since no measures or arrangements were available to secure the protection of L. after his return. 17. The applicant lodged a petition for judicial review of this decision with the Kúria. He argued that Article 13 of the Hague Convention was applicable to exceptional circumstances only and that neither the child’s age nor his closer connection to his mother had any bearing on the matter and could not constitute a decisive element in the decision to refuse to order the child’s return to his habitual residence. He also argued that he had contributed to the child’s care and that his employment, which allowed him to provide for his family, could not be held against him. Furthermore, the decisions had failed to take into account L.’s best interests, which lay in his being raised by both of his parents. He also maintained that his lack of contact with L. was due to K.B.V.’s own conduct and the fact that he had not been aware of the child’s place of residence until August 2014. Finally, the lower-instance courts had not respected the six-week deadline stipulated by the Brussels II bis Regulation. 18. The Kúria dismissed the applicant’s petition for judicial review on 6 October 2015. According to its reasoning both the Brussels II bis Regulation and the Hague Convention had established the presumption that a child’s interests could best be served by his immediate return to his habitual residence. However, under Article 13 of the Hague Convention this presumption could be rebutted in exceptional circumstances. It agreed with the applicant that the child’s young age, his close connection to the parent living in Hungary and his Hungarian roots could not serve as a basis for the refusal to order his return to France. It nonetheless held that at the time of his abduction L. had only been two and a half months old and that a considerable time had passed without him having contact with the applicant. The reason for this was that the applicant had refused to see L. at the premises of a child protection service, as suggested by K.B.V. The Kúria also found it important that according to the applicant’s own statements his sister would take care of L. if the child were returned to France and that, according to the decision of the French courts, K.B.V. would only have very limited contact with L. Furthermore, there was no information about any measure of protection envisaged in the event of L.’s return. Thus, the Kúria concluded that the return of the child, who was less than two years old, to an unknown environment would cause serious psychological harm. 19. On 9 January 2014 K.B.V. initiated custody proceedings in respect of L. before the Szombathely District Court; she also requested the court to adopt an interim measure placing L. under her custody. 20. On 27 August 2014 the District Court discontinued the proceedings, regard being had to the judgments delivered by the French courts. On 31 October 2014 the Szombathely High Court overturned this decision and ordered the District Court to examine whether the judgments of the French courts could be recognised and if not whether it had jurisdiction in the matter. 21. On 5 January 2015 the District Court discontinued the proceedings again, finding that K.B.V. could have exercised her procedural rights before the French courts, submitting her written observations through her representative in the course of the appellate proceedings. This decision was overturned again by the High Court on 5 March 2015 owing to procedural errors. 22. On 22 April 2015 the applicant tried to abduct L., who was walking with his grandfather on the street. Following the incident K.B.V. lodged a criminal complaint against the applicant and requested that a restriction order be imposed on him. On 8 May 2015 the Szombathely District Court issued a restriction order in respect of the applicant, which was subsequently overturned on appeal on the grounds that the mother herself had not been a victim of violent behaviour on the part of the applicant. 23. On 30 April 2015, in an interim decision, the District Court decided not to recognise the judgments adopted by the Thonon-Les-Bains tribunal de grande instance and the Chambery Court of Appeal, established that it did have jurisdiction in the matter, and temporarily placed L. in his mother’s sole custody. According to the District Court the French courts had found that the interests of the child could best be served by his return to France. However, the proceedings before the Thonon-Les-Bains tribunal de grande instance had failed to respect K.B.V.’s right to a fair trial, since – owing to the fact that the applicant had given false information to the French authorities – she had not been informed of the proceedings and had not been able to be heard in person. Thus, the court concluded that the decision could not be recognised, pursuant to Articles 21 § 4 and 23(d) of the Brussels II bis Regulation. It also held that it had jurisdiction under Article 8 (1) of the Brussels II bis Regulation, since the child’s habitual residence was in Hungary. As to the interim resolution of custody rights, the Court held that the interests of the child could be best served if he remained in his habitual environment – that is to say in the company of his mother and maternal grandparents – and that removing him from Hungary would pose a risk of causing him psychological harm. 24. Following a further appeal, on 11 August 2015 the Szombathely High Court overturned the decision concerning custody rights and remitted the case to the first-instance court. As to the decision on the non-recognition of the judgments delivered by the French courts, it found that recognition could not be refused on the basis that K.B.V. had not been heard in person before the French courts, since the Brussels II bis Regulation did not stipulate such an obligation and the mother could have submitted written observations. Nonetheless, the court found that the recognition of the foreign judgments could not be recognised, pursuant to Article 23(b) of the Brussels II bis Regulation, since recognition would have been contrary to the public policy of Hungary, given that the best interests of the child had only been respected in a formalistic way. According to the High Court, restricting the mother’s contact with L. to two hours every second week would have caused harm to L., especially since the applicant himself had stated that L. would be looked after by his sister. The court also had regard to the forensic psychiatric opinion prepared by Dr Gy.L.K. on 28 August 2014 and supplemented by L.K. on 6 March 2015, according to which from a psychological point of view – the enforcement of the French courts’ judgment would constitute “institutional abuse”. Furthermore, the court found that no measures were being contemplated by the applicant to ensure the protection of the child after his return to France. A petition for judicial review lodged by the applicant with the Kúria was dismissed as time-barred on 15 January 2016. 25. On 13 July 2015, in the course of the custody proceedings, the applicant also lodged a request for an interim measure regulating his access rights. 26. On 8 December 2015 the applicant abducted L. from K.B.V., in the course of which he caused grievous bodily harm to her. L was taken to France. 27. On 10 December 2015 the Szombathely District Court issued an interim decision on the exercise of parental custody and access rights. It noted that since January 2014 the applicant had seen his son only three times and had been in contact with him seven or eight times via Skype. It held that L. needed to have contact with his father and therefore ruled that the applicant could visit him for three hours every second weekend and could contact him via Skype every other weekend. Given the applicant’s violent behaviour towards the mother (and previously towards the child’s grandfather – see paragraph 22 above), the court held that the applicant’s visits should take place under supervision. The applicant appealed. 28. On 11 December 2015 the Szombathely District Court issued a European arrest warrant against the applicant, who was detained in France on 14 December 2015. L. was placed in a childcare institution. 29. By a decision of 24 December 2015 the Thonon-Les-Bains tribunal de grande instance found that the applicant had endangered the child’s development and temporarily placed L. in his mother’s custody. The applicant was granted access rights, in accordance with the Szombathely District Court’s decision of 10 December 2015. The applicant appealed against this decision. 30. L. was returned to Hungary on 28 December 2015. 31. On 3 February 2016 the Szombathely High Court upheld the decision of the District Court of 10 December 2015 on the temporary placement of L. in his mother’s custody, emphasising that the ThononLesBains tribunal de grande instance had arrived at the same conclusion. 32. In the meantime, on 24 February 2015 the applicant applied for the execution of the judgments delivered by the Thonon-Les-Bains tribunal de grande instance and the Chambery Court of Appeal. 33. On 7 September 2015 the Szombathely District Court dismissed the application, relying on the decision of the Szombathely High Court of 11 August 2015 on the non-recognition of the French courts’ judgments. It relied on Article 23(a) of the Brussels II bis Regulation. 34. The applicant appealed, arguing that the District Court had erred in finding that the decision on the non-recognition of the French courts’ judgments was relevant in the case. Since in the meantime the Court of Cassation had overturned the judgment of the Chambery Court of Appeal, the applicant requested the enforcement of the judgment of the ThononLesBains tribunal de grande instance and maintained that this judgment had been declared automatically enforceable. The Szombathely High Court held that the judgment of the Thonon-Les-Bains tribunal de grande instance, under which no rights at all were granted to the mother at all, was contrary to the public policy of Hungary since it did not respect fundamental rights, and in particular the best interest of the child, and refused by a decision of 10 December 2015 to execute it.