The European Court of Human Rights (ECtHR) pronounced in the Verhoeven v. France case on March 28, 2024 (application no. 19664/20) that Ms Verhoeven, who kidnapped her son and took him to France from Japan must return. Drawing from the 1980 Hague Child Abduction Convention, the French courts ruled that the child had to be returned. The petitioner claims the French courts have infringed on her right to a family life under Article 8 of the European Convention on Human Rights (ECHR). By a majority of six to one, the Court decided that no breach had occurred. The Court used the broad guidelines about transnational child abduction cases from its ruling in X v. Latvia to arrive at its verdict. In this ruling, the Court established a framework to balance the objectives of the Abduction Convention, i.e., prevention and timely return with the notion of the best interests of the child as incorporated into the ECHR by the UN Convention on the Rights of the Child (UNCRC), i.e., the best interests of the child must be the primary consideration in every case. Even while the framework explained in the section on the judicial determination below appears suitable for balancing the instruments of human or children’s rights law with private international law, the Verhoeven v. France ruling demonstrates that conflict may still arise.
What is Verhoeven v. France Case?
French national Ms. Verhoeven marries Japanese national K. In June 2015, their child was born in Japan, where they had decided to live together. Ms Verhoeven and her son took a holiday trip to France in July 2017. She moved for divorce in September 2017 and told K. she planned to stay there. K. initiated return procedures in October 2018 to return his kid to Japan under the Abduction Convention. The case was filed with the Montpellier First Instance Court, Montpellier Court of Appeal, Toulouse Court of Appeal, and Cassation Court. The mother argued against the child’s return before the First Instance Court and the Courts of Appeal, citing two exceptions to the Abduction Convention’s quick return provision. First, according to Article 13(1) (a) of the Abduction Convention, she asserted that the father consented to keep the kid in France. The courts rejected the allegation because they could not establish evidence of such acceptance. Second, according to Ms Verhoeven, the child’s return to Japan would put him in grave danger due to the father’s domestic abuse of the mother at the child’s young age and the fact that she is his principal carer under Article 13(1) (b) of the Abduction Convention. Due to a lack of proof, the courts rejected the domestic abuse claim. The mother’s argument that the child would be put in great danger if she and the child were to part ways was likewise rejected. The Courts of Appeal noted that the mother has not demonstrated that she cannot return to Japan with the kid and stay there for the proceedings on the merits and that the child was born in Japan, had lived there until the illegal retention, and knows the father.
The mother’s complaint that the Court of Appeal failed to look into whether applying Japanese law would deny her parental rights and cause her relationship with the child to end if she returned to Japan with the child was the main focus of the proceedings before the Court of Cassation. For this reason, the Court of Cassation set aside the ruling and forwarded the matter to the Toulouse Court of Appeal. The French public ministry explained to this Court that only one parent is entitled to custody of the kid following a divorce under Japanese law. When two people are binational, as this couple is, the Japanese parent is almost automatically granted custody. Although access rights could be granted to the other parent, there is no mechanism in Japanese law to enforce such rights. After being divorced, the applicant would only be allowed to live in Japan if they were granted exclusive custody, which is extremely improbable due to the highly tight Japanese visa restrictions. The Court of Appeal of Toulouse dismissed this challenge, citing that France did not express any objections about Japan’s admission and that Japan had signed and ratified the Abduction Convention.
Because mediation is a requirement in divorce proceedings and mutual consent divorce is another option provided by Japanese law, the Court ruled that “there can be no prejudging, at this stage of the proceedings, of the legal situation likely to be created by divorce proceedings in Japan.” Using the same grounds, the mother appealed again to the Court of Cassation. The Court of Cassation once again cited Article 3(1) UNCRC and the requirement that exceptions to return stipulated in the Abduction Convention be evaluated in the child’s best interests under the framework propounded by the European Court of Human Rights in X v. Latvia. The Court of Cassation dismissed the appeal after concluding that the Court of Appeal of Toulouse had decided to take the child’s best interests into account.
Judicial Determination
The ECtHR begins by citing the ruling in X v. Latvia. As previously stated, the Court established a structure in its verdict to guarantee that the Abduction Convention and the ECHR are applied consistently. Finding a balance between all the interests involved is crucial, keeping in mind that the child’s best interests come first and that the Abduction Convention’s goal of a rapid return aligns with a particular interpretation of those best interests. National courts must reasonably consider the elements supporting a return exemption under the Abduction Convention and render a well-reasoned ruling to achieve this equitable balance. The Court reiterates that strict interpretation is required for the exceptions.
The Court then looks at whether the national courts satisfied these requirements for every issue that was brought up during the national proceedings, including the father’s acquiescence, the child’s serious risk due to the alleged violence, the child’s young age and the mother’s role as primary carer, and the potential for a mother-child relationship to be shattered if Japanese substantive law is applied. The Court determines that the national courts have complied with the conditions concerning the claims of acquiescence and that the mother-child’s separation would pose a severe risk. Regarding the allegation of domestic violence, the Court reaches the same finding. Although there is little excitement in the Court’s analysis of the first three claims, the Court’s analysis of the fourth claim demonstrates that, even with the framework established in X v. Latvia, there can still be conflict between the objectives of the Abduction Convention and the UNCRC’s definition of the child’s best interests. On the one hand, the Court agrees that the applicant had valid concerns regarding Japanese law and that the French courts’ denial of her claim did not adequately address these concerns.
However, the Court finds that the French courts complied with their procedural duties under Article 8 ECHR by giving due consideration to the variables that might constitute an exception to return under the Abduction Convention and by rendering a decision that was adequately reasoned in this regard, as demonstrated by the Court of Appeal of Toulouse’s ruling. As a result, the Court determined that the aforementioned article was not violated. The Court offers four justifications for its judgement. First, in the context of return procedures, national authorities are not permitted to evaluate substantive matters about custody or the exercise of parental rights under the Abduction Convention. Second, the French courts made their decision fully aware of the circumstances, using data from the competent Japanese authorities and information from the public prosecutor’s office regarding the circumstances in Japan. Third, the French courts highlighted the mediation between the parents at the time of their decision as a significant element that should not be undervalued in light of the child’s best interests. Fourth, the French courts declined to make any assumptions about the legal ramifications of initiating divorce procedures in Japan, insisting that Japan remains a party to the Abduction Convention.
Common Sense Codified in the Convention
Judge Mits disapproves of the ruling and poses the following query in his dissenting opinion: Would the best interests of the child, as stated in Article 8 of the Convention, really support return if the Hague Convention had instead provided an equal choice between the two options, i.e., the child’s return to his father or acceptance of his removal to his mother’s side?However, this is precisely the kind of question that the Abduction Convention’s drafters aimed to avoid. Before the implementation of this Convention, judgements on international kidnapping were made using a method akin to that used in custody cases: a case-by-case evaluation of the child’s best interests. Domestic judges were frequently reluctant to order the child’s return following such drawn-out hearings. Thus, the drafters’ goals were to shield kids from the negative impacts of abduction and ensure that the kidnapping parent’s conduct would not have any legal repercussions. They based the Convention on the idea that children should return to their State of habitual residence as soon as possible to achieve these goals. It is deemed in the children’s best interests to promptly return the kid to the State where they usually reside and, consequently, return the case to the State’s courts on its merits.
The basic tenet of the Abduction Convention is that the child’s best interests should always come first in custody proceedings and that the child’s return allows such proceedings to proceed while guaranteeing that the child’s best interests are respected. Since the Abduction Convention is predicated on mutual faith, it would be unfeasible to provide systematic exceptions to the requirement of timely return. As the Court of Appeal of Toulouse has noted, France has also consented to apply this fundamental reasoning to Japan by allowing that State to accede to the Abduction Convention. The purpose of the Convention would be undermined if it were not applied based on a value judgement of Japanese substantive law about parental rights and how to interpret the child’s best interests in that context.
Rationality of the UNCRC
In addition, regarding children’s rights, the ECtHR interprets the UNCRC, which France and Japan are both Contracting Parties to, into Article 8 ECHR. The child’s best interests should be the priority in all decisions about them, as stated in UNCRC Article 3(1). One of the goals of the child’s best interests concept is to guarantee the complete and adequate enjoyment of all the rights guaranteed in the Convention, as the Committee on the Rights of the Child has clarified in its General Comment No. 14. This implies inter-alia that all of the rights delineated in the Convention must be treasured in the interpretation and application of the best interests notion. Therefore, the other rights guaranteed by the UNCRC come into question, and it appears that Japanese law and how it is implemented do not align with UNCRC Article 9(3). The right of a kid who is separated from one or both parents to have frequent, direct communication and personal relationships with both parents is covered by this article. The other parent must have access rights even if one parent is granted sole custody. While this is true in Japan, there is no legal framework in place to protect these rights; thus, they might not have any repercussions.
Furthermore, parents of Japanese children are only granted visas in cases when they have sole custody. Hence, it appears that after a divorce, children residing in Japan will never be able to keep up personal ties and direct contact with their non-Japanese parents. The fundamental tenet of the abduction convention—that the child’s best interests should be the deciding factor in any custody proceedings and that the Convention guarantees the child’s best interests to be respected by returning the child so those proceedings can proceed—cannot be upheld in the circumstances like the one in question. Although Japan may contend that the child’s best interests are prioritised in its substantive legislation, the country’s interpretation and application of this idea do not comply with the UNCRC.
Conclusion
The ECtHR’s ruling does not diminish the framework established in X v. Latvia to achieve a combined and harmonious application of private international law and children’s rights law instruments. Rather, Verhoeven v. France demonstrates that if both of the abduction’s participating States do not meet the fundamental requirements of both the instruments pertaining to children’s rights and private international law, such a harmonic implementation is not feasible. In this instance, there is no breach of the child’s best interests resulting from the swift return principle applied under the Abduction Convention. Children’s rights are violated because the domestic substantive law is at odds with the UNCRC, and the repatriation will force the domestic courts to base their rulings on this defective legislation. The answer appears to lay in a political or diplomatic debate to persuade Japan to reconsider its substantive policies on custody, access rights, and visas for parents of Japanese children rather than not using either instrument—both of which have advantages. The ruling makes it evident that this discussion is currently in progress. In a resolution by the European Parliament, Japan was urged to strengthen its domestic legal system and ensure that it is applied effectively to uphold Japan’s international obligations, including the 1980 Hague Convention and the UNCRC.