Judgment F.D. and H.C. v. Portugal - Return of child to mother in France without correct procedure was a violation

issued by the Registrar of the Court   ECHR 003 (2025)   07.01.2025   Return of child to mother in France without correct procedure was a violation   of the Convention   In today’s Chamber judgment1 in the case of F.D. and H.C. v. Portugal (application no. 18737/18) the   European Court of Human Rights held, unanimously, that there had been:   a violation of Article 8 (right to respect for private and family life) of the European Convention on   Human Rights.   The case concerned the enforcement of a seek-and-find order issued by the French authorities in the   context of a custody dispute in respect of H.C. – who had been brought by his father, F.D., to   Portugal from France – and his subsequent return to his mother, O.   The Court found in particular that neither father nor son had been heard by a court in Portugal   before the decision to return the child had been taken, and the alleged risk to the child of ill-   treatment had not been examined, denying them their procedural rights. The Portuguese authorities   had ignored F.D.’s rights as the father, and ignored whether the child’s return had been in his best   interests. The Court also found that the authorities had failed to protect H.C. when he had been   taken and kept at a police station while his father had been arrested. Overall, the decision had not   been “necessary in a democratic society”.   Principal facts   The applicants, F.D. and H.C., are, respectively, a French and Portuguese national and a French   national. They were born in 1970 and 2010 and live in Serpins (Portugal) and France respectively.   They are father and son.   Following the separation of F.D. from H.C.’s mother, O., in October 2013 the Family Court of Privas in   France granted custody of H.C. jointly to F.D. and O., with F.D. having contact rights, but the child’s   primary residence being with his mother.   Several times in the subsequent couple of years H.C. applied to the Privas Family Court for custody   or to have H.C.’s primary residence to be with him, arguing that H.C. was not being properly   educated and accusing O. of being violent, alleging that the child was at risk. He was unsuccessful.   On 6 October 2017 when collecting his son from school, F.D. noticed that he had an injury.   On 8 October 2017 F.D. failed to return the child, who he took to Portugal, to O. The child was   reported missing. On 11 December 2017 the Privas Family Court granted exclusive custody to O. and   suspended F.D.’s contact rights, noting that it had not been established that O. had caused H.C.’s   injuries.   On 14 November 2017 O. made a request to the French authorities for the return of the child under   the Hague Convention on the Civil Aspects of International Child Abduction. This request was sent to   the Central Authority designated for the purpose in Portugal, the Direcção-Geral de Reinserção e   Serviços Prisionais.   1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,   any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges   considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final   judgment. If the referral request is refused, the Chamber judgment will become final on that day.   Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.   Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   A European arrest warrant for F.D. was also issued in January 2018, which was followed by a seek-   and-find request through the Schengen Information System being issued for H.C.   In Portugal meanwhile F.D. applied for sole custody with the Family Court of Matosinhos. However,   on 15 February 2018 the Portuguese police executed the seek-and-find order, taking H.C. out of   school, and keeping him at a police station for several hours. At the same time F.D. was arrested.   Later that same day, at the public prosecutor’s office in Matosinhos, H.C. was handed over to O. in   person. The prosecutor noted the decision of the French courts to grant her custody. In March 2018   the Matosinhos Family Court rejected F.D’s application for sole custody.   Complaints, procedure and composition of the Court   Relying on Articles 6 § 1 (right to a fair trial), 8 (right to respect for private and family life) and 13   (right to an effective remedy), Mr F.D. complained, in particular, that the proceedings brought   against him in Portugal at the request of the French authorities had been unfair, and of H.C.’s return   to O. without an assessment of the risk to the child.   The application was lodged with the European Court of Human Rights on 16 April 2018.   Judgment was given by a Chamber of seven judges, composed as follows:   Lado Chanturia (Georgia), President,   Jolien Schukking (the Netherlands),   Faris Vehabović (Bosnia and Herzegovina),   Ana Maria Guerra Martins (Portugal),   Anne Louise Bormann (Denmark),   Sebastian Răduleţu (Romania),   András Jakab (Austria),   and also Simeon Petrovski, Deputy Section Registrar   Decision of the Court   The Court chose to examine the complaints solely under Article 8. It stated that the return of the   child to his mother by the Portuguese authorities had constituted an interference with the   applicants’ rights under that Article. As regards its accordance with the law, pursuant to Articles 2   and 7 of the Hague Convention the Portuguese authorities had been obliged to take all appropriate   measures to ascertain the child’s whereabouts. Indeed, despite their having located the child as of at   least 15 February 2018 and therefore facing no obstacle to fulfilling their Hague Convention   commitments, they had not done so. There had been a lack of action, communication and   coordination on the part of the Portuguese authorities in response to the request from the French   authorities.   Although the Portuguese Government argued that the return of the child had been based on the   provisions of the Brussels II bis Regulation, the Court saw no evidence of that. The public prosecutor   had ordered the return of the child without any court proceedings. The lawfulness was thus   questionable. The Court however was satisfied that the decision to return the child had had a   legitimate aim, in this case the protection of O.’s and H.C.’s rights.   In any case the Court held that the interference had not been necessary in a democratic society. In   particular, it referred to the fact that neither applicant had been heard by a court, and the risk to the   child had not been examined, denying them their procedural rights. Furthermore, that had been   aggravated by F.D.’s not having had knowledge of the Portuguese prosecutor’s decision; a   declaration that the judgment of the Privas Court had been enforceable in Portugal should have   been made by a court and therefore it would have been open to appeal. The Portuguese authorities   2 had ignored F.D.’s rights as the father, and ignored whether the child’s return had been in his best   interests. As regards the seek-and-find order, the Court reiterated that coercive measures against   children were not desirable. Concerning the period following F.D.’s arrest, the Portuguese   authorities had failed to comply with their obligations to protect H.C., who had been only seven   years old at the time, when he was kept in a police station.   Overall, there had been a violation of Article 8 in respect of both applicants.   Just satisfaction (Article 41)   The Court held that Portugal was to pay the applicants 10,000 euros (EUR) each in respect of non-   pecuniary damage, and jointly EUR 6,000 in respect of costs and expenses.   The judgment is available only in English.   This press release is a document produced by the Registry. It does not bind the Court. Decisions,   judgments and further information about the Court can be found on www.echr.coe.int. 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