FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application nos. 36812/97 and 40104/98 (joined) 
by Thomas Richard and Carina Maria SYLVESTER 
against Austria

The European Court of Human Rights (First Section), sitting on 26 September 2002 as a Chamber composed of

Mr C.L. Rozakis, President
 Mrs F. Tulkens
 Mr G. Bonello,

Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mrs E. Steiner, judges
and  Mr  E. Fribergh, Section Registrar,

Having regard to the above applications lodged with the European Commission of Human Rights on 26 May 1997 and on 26 February 1998, respectively,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the decision of 24 October 2000 to join the applications and to give notice of them to the respondent Government,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the Third Parties, Ms Jan Rewers McMillan, the National Center for Missing and Exploited Children, the International Center for Missing and Exploited Children and Ms Monika Sylvester,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Thomas Richard Sylvester is a national of the United States of America, who was born in 1953 and lives in West Bloomfield (Michigan). The second applicant Ms Carina Maria Sylvester, is a national of the United States of America and of Austria, who was born in 1994 and lives in Graz. They were represented before the Court by Mr S. Moser, a lawyer practising in Graz. The respondent Government were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The first applicant married an Austrian citizen in April 1994. The marriage was concluded in the United States of America, where the couple set up their common residence. On 11 September 1994, their daughter, the second applicant, was born. The family’s last common residence was in Michigan. Under the law of the State of Michigan the parents had joint custody over the second applicant.

On 30 October 1995 the first applicant’s wife, without obtaining the first applicant’s consent, left the United States with the second applicant and brought her to Austria.

On 31 October 1995 the first applicant, relying on the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Child Abduction Convention”), requested the Austrian courts to order the second applicant’s return. In these and the subsequent proceedings the first applicant was represented by counsel.

On 3 November 1995 the second applicant’s mother filed an application with the Graz District Court (Bezirksgericht für Zivilrechtssachen) for being awarded sole custody over the second applicant.

On 20 December 1995 the Graz District Civil Court, after having heard the first applicant and his wife and the oral statement of an expert in child psychology, Dr. K., ordered that the second applicant be returned to the first applicant in order to bring her back to her former place of residence in Michigan.

The court, noting that under Michigan law the first applicant and his wife had joint custody over their daughter, found that the first applicant’s wife had wrongfully removed the child within the meaning of Article 3 of the Child Abduction Convention. Moreover, it dismissed the mother’s claim that a return would entail a grave risk of physical or psychological harm within the meaning of Article 13 (b) of the Child Abduction Convention. It considered that the fact that the mother was the second applicant’s main person of reference and that her return could cause a massive trauma in her development could not hinder the return. Otherwise mothers of small children could easily circumvent the aim of the Child Abduction Convention. As to the mother’s allegation that the first applicant regularly masturbated in presence of the child, the court referred to the expert’s statement that such conduct would, in view of the low age of the child, not cause immediate harm. The fact that such conduct, if proved, could in the long run be harmful to the child would have to be assessed in the custody proceedings. Finally, it held that the mother could be expected to return with the second applicant to the United States.

On 19 January 1996 the Graz Regional Civil Court (Landesgericht für Zivilrechtssachen) dismissed the appeal brought by the second applicant’s mother.

On 27 February 1996 the Supreme Court (Oberster Gerichtshof) dismissed a further appeal brought by the second applicant’s mother.

On 27 February 1996 the first applicant filed a request for implementing the return order of 20 December 1995.

Meanwhile, the first applicant had started divorce proceedings before the Oakland Circuit Court (Michigan). By decision of 16 April 1996, the court pronounced a default judgment of divorce. Further, it awarded the first applicant sole custody over the second applicant and ordered that the second applicant should reside with the first applicant in case of her return.

On 7 May 1996 the file arrived again at the Graz District Civil Court.

On 8 May 1996 the Graz District Civil Court ordered the enforcement of the return order under section 19 § 1 of the Non-Contentious Proceedings Act (Ausserstreitgesetz). It noted that it was necessary to order coercive measures as there were indications that the mother was obstructing the child’s return. She had given an interview to a local newspaper according to which she was frequently changing her whereabouts and was determined not to let the child be taken away from her.

In the early hours of 10 May 1996, an attempt to enforce the return order was made in accordance with the terms set out in the order of 8 May. A bailiff assisted by a police officer, a locksmith and a representative of the Youth Welfare Office appeared at the house where the second applicant and her mother were living. The mother was present. However, a search carried out in the house, necessitating the exercise of force against the mother and the forceful opening of several doors, remained unsuccessful. On the occasion of the enforcement attempt the Supreme Court’s decision of 27 February 1996 and the enforcement order of 8 May 1996 were served on the second applicant’s mother.

On 15 May 1996 the second applicant’s mother appealed against the decision of 8 May 1996 and again filed a request for being awarded sole custody over the second applicant.

On 29 May 1996 the Oakland Circuit Court issued an arrest warrant on suspicion of international parental kidnapping against the second applicant’s mother.

On 18 June 1996 the first applicant made a further request for enforcement of the return order.

By decision of 25 June 1996 the Graz District Court, upon the request of the second applicant’s mother, transferred jurisdiction to the Leibnitz District Court in the judicial district of which the second applicant then had her residence.

On 29 August 1996 the Graz Regional Civil Court granted the first applicant’s appeal against the transfer of jurisdiction and, upon the mother’s appeal, quashed the Graz District Civil Court’s enforcement order of 8 May 1996 and referred the case back to it.

Referring to section 19 § 1 of the Non-Contentious Proceedings Act (Ausserstreitgesetz), the court found that in the enforcement proceedings the child’s well-being had to be taken into account insofar as a change in the situation had occurred since the issue of the return order and the taking of coercive measures. However, under Article 13 of the Child Abduction Convention, this question was not to be examined ex officio but only upon a request by the person opposing the return. Following the service of the enforcement order of 8 May 1996 the mother had submitted in particular that she was the second applicant’s main person of reference. Due to the lapse of time, the second applicant no longer recognised her father when being shown his picture. By being taken away from her mother the child would suffer irretrievable harm. The court therefore ordered the District Court to examine whether the situation had changed since the return order of 20 December 1995. It also ordered the District Court to obtain the opinion of an expert child psychologist on the question whether the child’s return would entail a grave risk of physical or psychological harm and whether coercive measures were compatible with the interests of the child’s well-being.

Between June and September 1996 numerous letters were exchanged by the United States Department of State and the Austrian Ministry of Justice, acting as Central Authorities under the Child Abduction Convention. The United States Department of State repeatedly requested information as to which steps had been taken to locate the second applicant and to implement the return order of 20 December 1995. The Austrian Ministry of Justice replied that the first applicant was represented by counsel in the Austrian proceedings and that it was up to him to take all necessary steps to obtain the enforcement of the return order.

On 15 October 1996 the Supreme Court dismissed the first applicant’s appeal and set aside the enforcement order of 8 May 1996. It noted in particular that the notion of the child’s well-being was central to the entire proceedings. When ordering coercive measures under section 19 § 1 of the Non-Contentious Proceedings Act, the court had to take the interests of the child’s well-being into account, despite the fact that the return order was final, if the relevant situation had changed in the meantime. Having regard to the aims of the Child Abduction Convention, a refusal of coercive measures was only justified if the child’s return would entail a grave risk of physical or psychological harm for the child within the meaning of Article 13 (b) of the Child Abduction Convention.

The Supreme Court acknowledged that particularly difficult problems arose in cases in which the abductor had created the situation in which the return represented a serious danger to the child’s well-being. Where the abductor of a small child was the latter’s main person of reference and refused to return with the child, a serious threat to the child’s well-being might arise. Nevertheless, Article 13 (b) of the Child Abduction Convention showed that the child’s well-being took priority over the Convention’s general aim of preventing child abduction. Reasons of general deterrence, or in other words, the aim of showing that child abduction was not worthwhile, could not justify exposing a child to a grave risk of physical or psychological harm.

In the present case, the mother claimed that the child, who was now more than two year’s old, was alienated from the father. The child’s abrupt removal from her, the daughter’s main person of reference, and her return to the United States would cause the child irretrievable harm. The Supreme Court emphasised that the particularity of the case lay in the fact that, in the main proceedings, the courts had denied any risk of psychological harm (to be caused by the alleged sexual behaviour of the first applicant) exclusively on account of the child’s low age. In these circumstances it could not be excluded that the child, who was now more than two years old and had been living solely with her mother for more than a year, would suffer grave psychological harm in case of a return to her father. Thus, the Regional Court had rightly found that the question whether the return order could be enforced by coercive measures needed further examination, including an expert opinion in child psychology.

In accordance with the Supreme Court’s decision, the case was referred back to the Graz District Civil Court.

On 23 April 1997 the Oakland Circuit Court issued a safe harbour order, valid until 21 October 1997 which provided inter alia that pending determination of custody in expedited proceedings, the first applicant would not exercise his right to sole custody; the second applicant would live with her mother separate from the first applicant who undertook to cover their living expenses; and the arrest warrant against the mother would be set aside as soon as she and the second applicant boarded a direct flight to Michigan.

On 29 April 1997 the Graz District Civil Court dismissed the first applicant’s request for enforcement of the return order.

In the continued proceedings, the expert on child psychology, Dr. K., had submitted his opinion on 26 March 1997 and the first applicant had been given an opportunity to comment. On the basis of the expert opinion, the court found that since the second applicant’s birth her mother had been her main person of reference. However, the first applicant had had regular contacts with her until 30 October 1995, the date of her abduction. Thereafter they had had no contact at all. Since the return order was made, a year and four months had elapsed and the first applicant had become a complete stranger to the second applicant. Given that a young child needed a stable relationship with the main person of reference at least until the age of six, the second applicant’s removal from her main person of reference, namely her mother, would expose her to serious psychological harm. The court noted the first applicant’s statement of 28 April 1997 and his offer within the meaning of the “save harbour” case-law but considered that this offer did not guarantee that the second applicant’s relationship with her main person of reference would be preserved in the long run. As this relationship was indispensable for her well-being, the request for enforcement of the return order had to be dismissed.

On 28 May 1997 the Graz Regional Civil Court dismissed the first applicant’s appeal. It shared the District Court’s view that the situation had changed fundamentally since the issuing of the return order. At that time the second applicant had been much younger and, given the short time which had elapsed between her abduction and the issuing of the return order, had not yet lost contact with the first applicant. A return of the second applicant accompanied by her mother could not be envisaged either. Apart from the reasons adduced by the District Court, the mother would face criminal prosecution in the United States and the child would, thus, be taken away from her.

On 9 September 1997 the Supreme Court dismissed the first applicant’s further appeal on the ground that it did not raise any important legal issues.

On 29 December 1997 the second applicant’s mother was awarded sole custody over the second applicant by the Graz District Civil Court. It noted that Article 16 of the Child Abduction Convention did no longer apply as the decision not to enforce the return order had become final. Following appeal proceedings the judgment became final in late 1998.

B. Relevant domestic law and practice

1. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

The preamble of the Convention, which has been incorporated into Austrian law, includes the following statement as to its purpose:

“ ...to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, ...”

The object of such a return is that, following the restoration of the status quo, the conflict between the custodian and the person who has removed or retained the child can be resolved in the state where the child is habitually resident. This principle is based on the consideration that the courts of the state of habitual residence are usually best placed to take custody decisions.

Article 3

“The removal or the retention of a child is to be considered wrongful where

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or the retention; and

(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. ...”

Article 7

“Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures

(a) To discover the whereabouts of a child who has been wrongfully removed or retained;

(b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;

(c) To secure the voluntary return of the child or to bring about an amicable resolution of the issues;

(d) To exchange, where desirable, information relating to the social background of the child;

(e) To provide information of a general character as to the law of their State in connection with the application of the Convention;

(f) To initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;

(g) Where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;

(h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;

(i) To keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.”

Article 11

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay ...”

Article 12

“Where a child has been wrongfully removed or retained in terms of Article 3 ..., the authority concerned shall order the return of the child forthwith.”

Article 13

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that

...

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. ...”

2. The Non-Contentious Proceedings Act

Section 19 § 1 provides that adequate coercive measures are to be taken without any further proceedings against a party refusing to comply with court orders.

According to the Supreme Court’s case-law the courts have, in any proceedings relating to the removal of a child, to take the interests of the child’s well-being into account when assessing whether coercive measures are to be ordered and if so which ones are to be applied.

COMPLAINTS

The applicants complained under Articles 6 and 8 of the Convention that the Supreme Court, in its decision of 15 October 1996 in the enforcement proceedings, ordered the courts to review the question whether the second applicant’s return to the United States would entail any grave risk of exposing her to physical or psychological harm within the meaning of Article 13 (b) of the Child Abduction Convention although the return order answering this question had already become final.

THE LAW

1. The first applicant raised the above complaints also on behalf of his daughter, the second applicant.

As regards the criteria for locus standi, Article 34 of the Convention provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government submitted that the first applicant was not entitled to lodge the applications on behalf of the second applicant. When application no. 26812/97 was n 26 February 1998, both parents had joint custody over their daughter under Austrian law. The mother did not agree to the introduction of the applications and, in any case, the approval of the guardianship authority would have been necessary for bringing any legal action pursuant to section 154 of the Austrian Civil Code. In addition, the Government contested that the filing of the applications at issue served the interests of the second applicant.

The first applicant contested the Government’s view. Referring to the Oakland Circuit Court’s judgment of 16 April 1996, he asserted that he had sole custody of the second applicant under United States’ law, when he introduced the two applications. Moreover, he submits that the question whether his right to respect for his family life was violated cannot be separated from the question whether his daughter’s rights under Article 8 were violated.

The Court recalls that in principle a person who is not entitled under domestic law to represent another may nevertheless, in certain circumstances, act before the Court in the name of the other person. In particular, minors can apply to the Court even, or indeed especially, if they are represented by a parent who is in conflict with the authorities and criticises their decisions and conduct as not being consistent with the rights guaranteed by the Convention. In the event of a conflict over a minor’s interests between a natural parent and the person appointed by the authorities to act as the child’s guardian, there is a danger that some of those interests will never be brought to the Court’s attention and the minor will be deprived of effective protection of his rights under the Convention. In such cases, even though the parent has been deprived of parental rights and this indeed is one of the causes of the dispute referred to the Court, the standing as the natural parent suffices to afford him or her the necessary power to apply to the Court on the child’s behalf, too, in order to protect the child’s interests (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000-VIII).

The Court observes that the first applicant’s position in the present case is stronger than that of a parent deprived of parental rights. It is undisputed that he had sole custody under Michigan law and joint custody together with his wife under Austrian law when he lodged the applications on his own behalf and on behalf of his daughter. Given that the dispute opposes the applicant and the Austrian authorities on the question whether his daughter’s return to the United States would be against her best interests, the Court considers that the applicant’s standing to act on behalf of his daughter cannot be made dependent on the consent of the guardianship authority as the Government suggest. In this context, the Court recalls that the conditions governing individual applications are not necessarily the same as national criteria relating to locus standi. National rules in this respect may serve purposes different from those contemplated by Article 34 of the Convention (ibid., § 139).

In conclusion the Court finds that the first applicant has standing to act on his daughter’s behalf.

2. The applicants complain that the Supreme Court, in its decision of 15 October 1996, in the enforcement proceedings ordered a review of questions which had already been dealt with in the final return order under the Child Abduction Convention. They rely on Articles 6 and 8 of the Convention.

Article 6, so far as material, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 8, so far as material, reads as follows:

“1.  Everyone has the right to respect for his private and family life, ...

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”

a. As to Article 8, the Government conceded that the Supreme Court’s decision constituted an interference with the applicants’ right to respect for their family life. However, it had its legal basis in section 19 of the Non-Contentious Proceedings Act and Article 13 § 1 (b) of the Child Abduction Convention and served a legitimate aim, namely the child’s well-being. As to its necessity, the Government contended that at the time of the Regional Court’s decision of 29 August 1996 and the Supreme Court’s decision of 15 October 1996, the Oakland Circuit Court had already awarded the first applicant sole custody without hearing the child’s mother and without examining his ability to take care of the child. Thus, contrary to the situation pertaining when the return order was made, an examination of the mother’s accusations raised against the first applicant in custody proceedings before the United States’ courts could no longer be expected. Referring to Nuutinen v. Finland (no. 32842/96, ECHR 2000-VIII) they pointed out that a State may be obliged at the enforcement stage to review whether a given decision was still in the best interests of the child. Finally, the enforcement of the return order was rejected on the basis of comprehensively considered judicial decisions which weighed all interests involved and gave priority to the child’s well-being. In so doing, the courts did not exceed the margin of appreciation accorded to them under Article 8 § 2 of the Convention.

As to the procedural requirements inherent in Article 8, the Government asserted that the first applicant was sufficiently involved in the decision- making process. He was represented by counsel throughout the proceedings and informed about and heard as to all relevant procedural steps. Moreover, there were no unnecessary delays in the proceedings. Unlike in the case of Ignaccolo-Zenide v. Romania ([GC], no. 31679/96, ECHR 2000-I), the return of the child was not delayed due to the inactivity of the courts. The Graz District Civil Court issued an enforcement order on 8 May 1996, i.e. one day after it received the file with the Supreme Court’s final decision on the return order and an unsuccessful attempt to enforce the order was made on 10 May 1996. No further attempts could be made as the mother appealed against the enforcement order. The decisions in the appeal proceedings followed at reasonable intervals.

The applicants contended that the interference with their right to respect for their family life was not justified under the second paragraph of Article 8. They submitted in particular that the Supreme Court’s decision was based on an erroneous interpretation of the Child Abduction Convention and did not serve a legitimate aim. The interference occasioned by the non-enforcement of the final return order was not necessary. Rather, like in the Ignaccolo-Zenide case, the delays caused by the courts eventually made the enforcement of the return order impossible. In particular, two and a half months passed by between the Supreme Court’s decision of 27 February 1996 and the return of the file to the Graz District Civil Court on 7 May 1996. Moreover, the applicants contested that no further enforcement measures could be taken after the mother had appealed against the enforcement order. Moreover, the measure did not correspond to a pressing social need as the second applicant’s mother could have participated in the custody proceedings before the Oakland Circuit Court.

The third parties, Ms Jan Rewers McMillan, the National Center for Missing and Exploited Children and the International Center for Missing and Exploited Children, argued that the present case was similar to the Ignaccolo-Zenide v. Romania case. The main question therefore was whether Austria had complied with its positive obligations under Article 8. Thus, the “all reasonable measures standard” developed in Ignaccolo-Zenide which referred in turn to the standards laid down in the Child Abduction Convention, in particular in its Articles 7 and 11, had to be applied. In their view the focus of the case lies in the Austrian courts’ failure to enforce the return order timely. The review of the return order in the enforcement proceedings was, thus, just a consequence resulting from this failure and not a justified interference with the applicants’ rights under Article 8.

The mother of the second applicant, Ms Sylvester, also as a third party, agreed with the Government that there was no indication of a violation of Article 8, as the Austrian courts refused enforcement of the return order on the ground that it would entail a grave risk for the child’s well-being. Thus, their decisions were in line with the Court’s case-law, according to which the State’s obligation to reunite a parent with his child is not an absolute one, as the interests of the child’s well-being may override the parent’s interest in reunification.

b. As to Article 6, the Government referred to the nature and purpose of non-contentious proceedings. Even where a return order has become final, the courts are obliged in the enforcement proceedings to take the child’s well-being into account in accordance with section 19 § 1 of the Non-Contentious Proceedings Act. They emphasised that the applicant did not complain about any alleged unfairness of the proceedings but merely about the review of a final decision, the return order. However, Article 6 does not prevent such a review if there has been a change in the relevant facts.

The applicants conceded that their right to adversarial proceedings had been complied with but maintained their prior submissions, namely that the review of the final return order in the enforcement proceedings violated Article 6.

The third parties, Ms Jan Rewers McMillan, the National Center for Missing an Exploited Children and the International Center for Missing and Exploited Children, asserted that the failure to enforce the return order and its reconsideration in the enforcement proceedings raised an issue under Article 6. They referred to Hornsby v. Greece (judgment of 25 February 1997, Reports of Judgments and Decisions 1997-II) arguing that the execution of a judgment must be regarded as an integral part of the “trial” for the purposes of Article 6. The Government replied that the Austrian courts did not merely remain inactive but refused the enforcement of the return order for good reasons, i.e. in the interests of the child’s well-being.

The Court considers, in the light of the parties’ submissions, that the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Erik Fribergh Christos L. Rozakis Registrar President

SYLVESTER v. AUSTRIA DECISION


SYLVESTER v. AUSTRIA DECISION