On March 30, 2021, the European Court of Human Rights, in Case of Thompson v. Russia, weighed in on a Hague Abduction case filed in Russia, seeking the return of a minor child to Spain. At the trial level court in Russia, the court rejected the return petition on the basis that returning the minor child would place the child in an intolerable situation in the vein of Article 13(b), because the child, age 3 years and 3 months, was “deeply attached to his or her mother, both physiologically and psychologically.” The trial court also relied on Principle 6 of the UN 1959 Declaration of the Rights of the Child, arguing that, except in exceptional circumstances, a child of tender years should not be separated from his or her mother. The mother had no intention of returning to Spain. The appellate court agreed and further relied on Article 38 of the Russian Federation Constitution arguing that the child had become well integrated into her social and family environment in Russia. It noted that the “best interests of the child” was the utmost importance in every case, and that the trial court (the District Court) reached its decision on that basis. Further, the court concluded that the domestic Russian authorities had ensured all necessary steps were taken for the child’s father to have an opportunity to have contact with his daughter and participate in her upbringing. The Father exhausted all appellate options, with no different outcome. The Mother brought divorce and maintenance proceedings and to establish the child’s residence with her.
The ECtHR reviewed the articles of the treaty, the Explanatory Report, and the Hague Conference’s 2020 Guide to Good Practice on Article 13(b), as well as the aforementioned declarations and acts.
The Father argues that his, and his daughter’s, rights under Article 8 and 14 of the European Convention on Human Rights were violated. (Article 8 is the right to respect for their private and family life. Article 14 is the right to enjoy the freedoms in the Convention without discrimination on … sex…) The ECtHR analyzed only Article 8. He argued that the Russian courts “substituted the interests of the child’s mother in not returning to Spain, and thus failed to strike a balance between the interests at stake.”
The Court stated, “The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters, taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention of unlawful removal and immediate return correspond to a specific conception of “the best interests of the child”.”
In the end, the Russian courts applied the wrong test under the Hague Abduction Convention to determine whether the Mother’s removal of the child from Spain was wrongful. It focused on the child’s age, the child’s residence in Russia, the child’s integration, and the Mother’s refusal to return to Spain. It was the Mother’s obligation to demonstrate a harm to the child, and it cannot be that the harm came from inconveniences linked to the experience of being returned. “Article 13(b) concerns only situations which go beyond what a child might reasonably be expected to bear.” The Mother’s refusal to return was “rather arbitrary.” “… [T]he harm referred to in Article 13(b) of the Hague Convention cannot arise solely from separation from the parent who was responsible for the wrongful removal or retention.”
The conclusion is, therefore, that the Father and child’s Article 8 rights were violated.