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Maltese judge dissents in European Court child abduction case

Judge Vincent DeGaetano was one of three European Court of Human Rights judges who insisted Poland violated a citizen’s right to respect for private and family life when a child abduction case took unduly long to be concluded.

When a person goes before the Strasbourg Court claiming his civil case was not dealt with within a reasonable time, article six – right to a fair trial – of the European Convention is usually invoked. However, in a judgment delivered on November 2 (Serghides v. Poland), the ECHR examined whether the delay in the determination of a child abduction case amounted also to a violation of article eight of the Convention.

The applicant, a Polish national residing in London, obtained from the English courts access to his three-year-old daughter. Two weeks later, the wife abducted the child and left for Poland. Eventually, proceedings commenced in Poland in terms of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.

It was, however, only one year and eight months later that the Polish courts finally ordered the return of the child to the UK. As soon as the decision was delivered, the wife went into hiding with her daughter. Proceedings dragged on for almost another year as the wife sought a retrial on grounds that new facts had emerged, including that the child was now fully integrated in her new environment in Poland.

Eventually, the Polish courts revoked their previous order to have the child returned to the UK given the “changed circumstances” of the child. Four of the seven judges on the Fourth Section of the Strasbourg Court felt the Polish authorities could not be faulted over the length of the judicial proceedings.

However, the three other judges, including Judge DeGaetano, disagreed. In a strongly worded joint dissenting opinion, they pointed out that, in line with case law of the Court, the obligations that article eight imposed on a state had to be interpreted in the light of that country’s other international obligations, including not only the Hague Convention but also the Brussels II Regulation.

These instruments imposed a term of six weeks as the normal time limit within which a decision had to be taken by the requested state’s judicial authorities on the return of a child. They stressed that child abduction cases were, by their very nature, urgent cases requiring more than special diligence. They needed to be treated with urgency and the “delay” concept could not be approached in the same way as under article six when considering other “civil rights and obligations”.

Nor were the three judges convinced Poland had advanced any valid reasons why its courts had exceeded the six-week benchmark. Finally, they pointed out it was trite knowledge that a defendant wanting to prolong such proceedings would insist on repeatedly producing expert evidence and if the courts were not fully cognisant of their duty to handle such cases with urgency or if they were burdened with other work, they would inevitably allow such evidence with the consequent delays.

The dissenting judges, therefore, concluded that, in this case, there was a violation of the state’s positive obligation under article 8 not to allow unnecessary interference in family life.

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