Introduction
In this decision issued on 12 September 2022, the UN Committee on the Rights of the Child (CRC Committee) examined a communication on proceedings brought under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Child Abduction Convention). It concerns a mother (the applicant) who took her two children from Canada to Ireland in February 2019 without the consent of the children’s father or the court. Subsequently, Irish courts ordered the children’s return to Canada in August 2019 by application of the Child Abduction Convention. As a result, the mother brought a communication to the CRC Committee under the Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (OPIC) in August 2019, claiming that Ireland violated her children’s rights under the UN Convention on the Rights of the Child (CRC), in particular Articles 3, 9, 12, 16 and 27, by returning her children to Canada. The CRC Committee found that the communication was inadmissible under OPIC.
This decision highlights the complex interplay between the CRC and the Child Abduction Convention. The Child Abduction Convention, adopted almost 10 years before the CRC, has been criticised as not appearing to be rights compliant (Schuz 2013, Khazova 2019). This case note highlights issues faced by the CRC Committee in dealing with this complex relationship, as well as the efforts it has made to harmonise the two instruments. In addition, it will underline some of the gaps that remain in the CRC Committee’s interpretation of procedural issues that it has faced and will continue to face.
Facts
The communication was lodged against Ireland by S.F. (the applicant) on behalf of her two children W.W. and S.W, born in May 2015 and September 2017 respectively. The applicant, the father, and their two children lived in Canada, and in 2018 the parents separated (para. 2.1). The father obtained an order from a Canadian Supreme Court preventing the mother from removing the children from Canada without the express consent of both parents or a further court order. In February 2019, the mother left Canada for Ireland with the children, in breach of the court order. Prior to the children’s removal, the mother had tried to file two protection orders against the father and alleged that the father assaulted her in front of their children (paras. 2.2 - 2.3). In March 2019, the Canadian courts granted the father sole custody of the children and ordered their immediate return (para. 2.4).
In May 2019, the Irish High Court ruled under the Child Abduction Convention that the mother had wrongfully removed the children and ordered the children’s return (para. 2.5). The mother’s appeal was dismissed and the children’s return ordered to take place on 21 August 2019 (para. 2.6). The Court of Appeal denied the applicant a stay of order to appeal to the Supreme Court. Her request for legal aid was also denied on 2 August 2019 (para. 2.7), and the applicant did not seek leave to appeal to the Supreme Court (para. 11.3).
The applicant submitted her communication to the CRC Committee on 16 August 2019, claiming that Ireland violated her children’s rights under Articles 3, 9, 12, 16 and 27 CRC. She claimed that: the return placed her at risk of a dangerous deterioration of her mental health which could have a grave impact on her children; the best interests of her children were not assessed by the courts in Ireland; the courts did not conduct a detailed examination of the children’s circumstances; and the courts failed to duly assess her own mental illness (paras. 3.1-3.3). That same month, the applicant also applied for interim measures to the European Court of Human Rights (ECtHR), which were refused on 16 August 2019.
On 20 August 2019, the CRC Committee requested Ireland to adopt interim measures to suspend the children’s return to Canada (Article 6 OPIC). Nonetheless, the High Court issued a decision directing the mother to comply with the return order. The children were returned to Canada on 23 August 2019 without their mother (para. 2.8), going against the interim measures, with Ireland explaining that it could not comply with the request as it was in conflict with court proceedings under the Child Abduction Convention (para. 1.2).
The mother returned to Canada in September 2019. She claimed that she was unable to contact her children before then, and could not locate them once she arrived in Canada (para. 5.6.). In September 2019, the Canadian Supreme Court ordered an immediate equal parenting time arrangement. When the children were returned to her care, the applicant alleged that her younger child showed signs of serious emotional trauma (para. 5.7).
Procedural Issues
This case raises a number of procedural issues. The first issue is that Ireland did not comply with the CRC Committee’s interim measures, claiming it would conflict with proceedings under the Child Abduction Convention.
The second is that Ireland claimed that the communication was inadmissible for a number of reasons, submitting that: (a) it constituted an abuse of the right of submission that was incompatible with the CRC and its Optional Protocols (Article 7(c) OPIC); (b) the communication had already been examined by the ECtHR (Article 7(d) OPIC); (c) the applicant did not exhaust domestic remedies (Article 7(e) OPIC) since she failed to seek leave for appeal before the Supreme Court; and (d) the communication was manifestly ill-founded and/or insufficiently substantiated (Article 7(f) OPIC) (paras. 4.1-4.5). The applicant claimed that she did not seek leave for appeal because she did not have legal representation, was denied legal aid, and had no reasonable possibility to appeal (para. 2.7).
Findings
Decision
The CRC Committee found that the communication was inadmissible.
To begin with, it found that the applicant’s request for interim measures before the ECtHR did not make the communication inadmissible. It noted that, since the applicant had only applied to the ECtHR for interim measures and did not submit a full application, the Court had not examined the same matter within the meaning of Article 7(d) OPIC (para. 11.2).
However, the CRC Committee found that the applicant failed to exhaust all available remedies, considering that (paras. 11.3-11.6):
- the short timeframe available to seek leave to appeal to the Supreme Court was not in itself sufficient reason to lift the requirement;
- there was no information suggesting the author’s mental health condition justified her not filing the appeal; and
- the applicant failed to substantiate that her financial situation and lack of access to legal aid prevented her from seeking leave to appeal, noting that she managed to bring applications before the ECtHR and the CRC Committee.
Dissenting opinion
Three members of the CRC Committee - Hynd Ayoubi Idrissi, Luis Pedernera Reyna and José Rodríguez Reyes – issued a dissenting opinion.
They considered that, by failing to respect the interim measures issued by the CRC Committee, Ireland was in violation of Article 6(1) OPIC. In fact, it considered that a State Party cannot evade its obligations under Article 6(1) OPIC by invoking a possible conflict with its domestic law or an international treaty. It underlined that, in this case, the children’s return was likely to have resulted in some degree of harm (paras. 2-5).
Moreover, they affirmed that the applicant did not have access to an effective remedy. They considered that the effectiveness of a remedy must take into account both the personal situation of the author and the State Party’s positive obligation under the universally recognised guarantee of access to legal representation and assistance (para. 7).
Commentary
This decision reaffirms the CRC Committee’s competence to hear communications on such proceedings, which was established in N.E.R.Á. on behalf of J.M. v. Chile. In that case, the CRC Committee noted that, though its role was not to decide whether national courts correctly interpreted or applied the Child Abduction Convention, its role was to ensure that such an interpretation or application was made in accordance with obligations under the CRC (para. 7.4).
Nonetheless, the case raises three interesting and important points on the rules of procedure under OPIC. First, the case raises the matter of the inter-play between different legal proceedings: proceedings under the Child Abduction Convention and the examination of these proceedings before the CRC Committee. Separately, it raises questions about the status of interim measures under OPIC. Second, it highlights the need to clarify the link between availability of legal aid and accessibility of effective remedies at the national level, which must be considered integral to the operation of OPIC. Lastly, it furthers the Committee’s interpretation Article 7(d) OPIC, and what is considered as an ‘examination’ of the ‘same matter’.
Competing obligations under the CRC framework and the Child Abduction Convention?
To begin with, this case raises the matter of the inter-play between domestic proceedings under the Child Abduction Convention and individual communications brought before the CRC Committee. This question is also linked to the wider issue of the interpretation of the CRC and the Child Abduction Convention.
Obligations under OPIC and the Child Abduction Convention
In this case, the CRC Committee issued interim measures to suspend the return of the children under Article 6(1) OPIC. However, Ireland did not comply with these measures as it considered that compliance would be in conflict with the Irish court order to return the children made under the Child Abduction Convention.
Although the majority did not address this issue, the dissenting members of the Committee considered that Ireland violated Article 6(1) OPIC (para. 5), underlining that States Parties cannot evade their obligations under this article by “invoking a possible conflict with its domestic law or with an international treaty” (para. 3). OPIC does not clearly set out the powers of the CRC Committee with respect to non-compliance of interim measures (Buck and Wabwile 2013). Its Guidelines on interim measures state that such measures impose an international legal obligation on State Parties to comply, as failure to implement them would undermine the effectiveness of the individual communications procedure and render the case moot (para. 9). However, these Guidelines are not legally binding and, similar to the CRC Committee’s decisions on individual communications, there is thus no legal instrument obliging States Parties to comply with the interim measures. By contrast, decisions taken under the Child Abduction Convention are legally binding. The Child Abduction Convention is a procedural mechanism, which sets a framework to secure the prompt return of wrongfully removed or retained children and ensure that rights of custody and access under a Contracting State’s national law are respected in other Contracting States (Article 1). Therefore, when States ratify the Child Abduction Convention, they agree to incorporate its framework in their national law. This communication thus raises the question as to whether and, if so, how States can be compelled to comply with interim measures recommended by the CRC Committee when they conflict with another legally binding provision either in national or international law.
Unfortunately, the dissenting opinion does not provide any guidance on how States Parties are expected to navigate these potential conflicts, other than stating that such conflicts do not absolve them from their obligations under OPIC. One solution here is that States Parties would be expected to employ the principle of harmonisation, in line with Article 31(3)(c) of the Vienna Convention on the Laws of Treaties. This article provides that, in the interpretation of treaties, "any relevant rules of international law applicable in the relations between the parties” should be taken into account. This seems to be the approach taken in N.E.R.Á. on behalf of J.M. v. Chile, in which the CRC Committee stated that, as far as international child abduction is concerned, the CRC must be interpreted by taking into consideration States Parties’ obligations under the Child Abduction Convention (para. 8.3). Conversely, the interpretation or application of the Child Abduction Convention should be made in accordance with CRC obligations. This is in line with efforts that have been made to harmonise the interpretations of the Child Abduction Convention and human rights, as discussed below.
It could thus be argued that following interim measures suspending the execution of return orders would not be a breach of legal obligations under the Child Abduction Convention, but rather an application of the Convention taking into account the CRC.
Another issue that needs to be considered is the delay between interim measures suspending a return order and the CRC Committee’s decision on the communication. In this case, there was a two-year gap between the two. This delay raises two important concerns. Firstly, suspending children’s return for two years necessarily goes against the objective of the Child Abduction Convention to secure the prompt return of children to their State of habitual residence (Article 1(a)) and their legal obligation to process return applications expeditiously (Articles 2, 11). Secondly, when return proceedings are prolonged, there is a risk that the child’s habitual residence will change to the State in which they have been wrongfully removed or retained. The Child Abduction Convention provides for the return of wrongfully removed or retained children to their State of habitual residence (preamble). It rests on the premise that the merits of the case (such as custody rights) should be decided in children’s State of habitual residence immediately before their wrongful removal (Explanatory Report para. 19). These considerations become complicated when children’s habitual residence changes after their removal/retention. Should they be returned to their State of habitual residence before the wrongful act, or stay in their new State of habitual residence, in which case it could be argued that the person who wrongfully removed/retained the children benefits from their wrongful act? If the interim measures had been complied with, Irish domestic courts may have been left to deal with these considerations after the CRC Committee’s inadmissibility decision.
To avoid similar situations from arising, the CRC Committee should provide clear guidance to States Parties on the weight attached to interim measures, in particular when there is a prima facie case that the implementation of interim measures could be said to be going against legal obligations under another international convention. In addition, it needs to exercise caution with the use of interim measures, in particular when there are long periods between its interim measures and its final decision, which can leave children in situations of legal uncertainty for prolonged periods.
Toward a harmonious interpretation of the CRC and the Child Abduction Convention
Interestingly, this raises wider questions about the tensions between the CRC and the Child Abduction Convention, in particular in relation to the best interests of the child.
The Child Abduction Convention is based on the premise that children’s best interests are best served by their immediate return, except in cases where exceptions to the return under the Convention are established under the Convention (Articles 12, 13 and 20) (Schuz 2002, Explanatory Report para. 25). Proceedings under the Child Abduction Convention are not concerned with the merits of the case (Article 16 Convention) therefore and do not provide for a substantive assessment of the child’s best interests (see Mol and Kruger 2018). However, since these proceedings inevitably affect the individual child concerned, they fall within the scope of Article 3(1) CRC which provides that the best interests of the child should be a primary consideration in all matters affecting the child. It is important to note the distinctive approach here – the Child Abduction Convention approaches the best interests of the child by looking at children collectively (Mol and Kruger 2018), while the CRC is also focused on children as inidividuals (CRC General Comment 14, paras. 22-23).
As stated earlier, potentially conflicting norms between the CRC framework and the Child Abduction Convention can be interpreted with the aim to achieve harmonisation (see Keller and Heri 2015 in relation to the Child Abduction Convention and the ECtHR). There are different views on how the best interests of the child under the CRC and proceedings under the Child Abduction Convention can be reconciled. For example, Schuz argues through the ‘Alternative Reconciliation’ theory that these can be consistent if the a priori weighing of interests is consistent with treating the best interests of the child as a primary consideration, as well as with other main considerations under the Child Abduction Convention (deterring abduction and returning the child). On the other hand, Sthoeger contends that the current legal framework of the Child Abduction Convention and its exceptions already establish an acceptable balance between the best interests of the child and other considerations that sufficiently enable courts to deny return to protect children’s best interests in the rare situations that it is warranted.
It appears that the CRC Committee has started harmonising the best interest principle under Article 3(1) CRC and the Child Abduction Convention in N.E.R.Á. on behalf of J.M. v. Chile. In that decision, the Committee incorporated obligations under Article 3 CRC within the framework of the Child Abduction Convention. In fact, the CRC Committee acknowledged the Child Abduction Convention’s presumptions on the best interests of the child (para. 8.4). It then affirmed that domestic courts must ensure compliance with Article 3 CRC in every decision in which the exceptions provided for in the Child Abduction Convention apply or have been invoked (para. 8.4). The CRC Committee established a two-step process for them to do so: (1) effectively assess the factors that may constitute an exception to the child’s return, in particular when they have been raised by one of the parties, and make a sufficiently reasoned decision on this point; and (2) evaluate these factors in light of the best interests of the child (para. 8.5). The CRC Committee concluded that courts must assess the extent to which the return would expose the child to physical or psychological harm or otherwise be clearly against their best interests, in light of the narrow exceptions established in the Convention and as required under Article 3 CRC (para. 8.6). In conclusion, the CRC Committee did not remove the presumption in favour of the child’s return and allowed for the best interests of the child to be taken into account through the exceptions. (For more information, see case note on N.E.R.Á. on behalf of J.M. v. Chile).
It is also noteworthy that this reasoning is in line with the ECtHR’s interpretation on the assessment of the best interests of the child in child abduction proceedings (see X v. Latvia, paras. 106-107).
However, the CRC Committee did not detail the type of best interests examination that courts should undertake, nor the level of depth that may be required, other than that it is not “the same level of examination” as required by courts deciding on custody and visitation (para. 8.6). Accordingly, it is arguable that the CRC Committee should further clarify the obligations that fall on States to respect children’s rights in proceedings under the Child Abduction Convention.
Financial considerations and exhaustion of domestic remedies
The second aspect which divided the CRC Committee was whether the communication should be declared inadmissible for non-exhaustion of domestic remedies. The majority opinion found that the applicant benefitted from an effective remedy, noting that “ordinarily financial considerations, without adequate justification, do not absolve the authors from exhausting domestic remedies” (para. 11.3), while the dissenting members concluded that the applicant did not have access to an effective remedy (para. 10), considering her personal circumstances and Ireland’s positive obligations “by virtue of the “universally recognized guarantees regarding access to representation and to legal aid, if needed”. (para. 7).
Under OPIC, a communication will be inadmissible if all available domestic remedies have not been exhausted, except where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief (Article 7(e)). The CRC Committee considers that the requirement does not apply if applicants objectively have no prospect of redress, though mere doubts or assumptions about the success or effectiveness of remedies are not enough (para. 11.4). A communication will be admissible if there are no available, effective, and sufficient domestic remedies (Skelton 2019). A remedy is available if it can be pursued by the applicant without difficulties or impediments, and only if the applicant can make use of it in the circumstances of the particular case (D’Ascoli and Scherr 2007). This is highlighted in the dissenting opinion, which affirmed that a remedy must be accessible (para. 7) and take into account the applicant’s personal situation (para. 8) to be effective.
The majority of abducting parents are now the child’s primary or joint-primary carer (van Loon 2017, Lowe 2017). Because of the interface between international child abduction and domestic violence (see Weiner 2000), the issue of access to legal aid in proceedings under the Child Abduction Convention is particularly important. The provision of free or low-cost legal aid is a “crucial element” to ensure that justice systems are economically accessible to women (CEDAW General Comment 33, para. 36). In addition, provision of legal aid in cases of domestic violence is particularly important (see e.g. Chiapetta 2019). In light of the criticism of the Child Abduction Convention for its ability (or lack of) to deal with cases involving domestic violence (see Weiner 2002, Bruch 2004) and the recognition of the impact of domestic violence on children’s rights (see Morrison and Houghton 2022), the issue of availability of legal aid for women who invoke concerns of domestic violence in proceedings under the Child Abduction Convention will require serious consideration from the CRC Committee.
In this case, the applicant had requested protection orders against the father and alleged that he had physically assaulted her (paras. 2.2-2.3), raising concerns of domestic abuse. As a result, the CRC Committee should have given stronger consideration to her financial circumstances and the decisions she took without legal aid in assessing whether she in fact had access to an effective remedy. It will need to clarify the circumstances in which denial of legal aid renders a domestic remedy ineffective.
Interpretation of Article 7(d) OPIC
Finally, the CRC Committee furthered its jurisprudence on the interpretation of Article 7(d) OPIC. The interpretation of an examination of the same matter in relation to the ECtHR and the UN treaty bodies has already been examined, in particular through the jurisprudence of the Human Rights Committee (HRC) (see Helfer 1999). According to the HRC, the “same matter” relates to the same author, the same facts, and the same substantive rights (Petersen v. Germany). For example, it considers that a matter has already been examined if the ECtHR has gone beyond purely procedural admissibility criteria and gave reasons that involve even limited consideration of the merits of the case (Mahabir v. Austria) (see Phuong 2007).
The CRC Committee appears to be following a similar line of interpretation. In previous decisions, it considered that a single-judge decision issued by the ECtHR that does not specify the basis for the finding of inadmissibility (Y. and Z. v. Finland) or a decision that does not examine the case in substance due to non-fulfilment of formal requirements (A.B. v. Finland), does not meet the threshold for non-admissibility under Article 7(d) OPIC. In S.F. Alleged victim: W.W. and S.W. v. Ireland, it found that a request for interim measures, unaccompanied by a “full application” to the ECtHR did not meet this threshold (para. 11.2). This is a coherent interpretation, in particular as Article 6(2) OPIC underlines that the transmission of interim measures does not imply a determination of a communication’s admissibility or merits.
However, this may raise issues of forum shopping, with applicants requesting interim measures to multiple jurisdictions. There is a rising number of international and regional mechanisms competent to receive individual communications. If these interpret their legal norms differently and reach contradictory decisions, they may risk becoming each other’s de facto appellate courts. This may also raise additional issues because some of these mechanisms can make legally binding decisions (such as the ECtHR) whereas others cannot (such as the CRC Committee). That is why the harmonisation of potentially conflicting international legal norms, as discussed earlier, is important. (See Helfer 1999 on forum shopping for human rights).
Conclusion
This decision builds on the CRC Committee’s competence to review whether decisions made under the Child Abduction Convention comply with children’s rights. However, it sheds light on the need for the Committee to provide further interpretation on its rules of procedures. The CRC Committee has begun to interpret the CRC and the Child Abduction Convention in a way that promotes harmonious interpretation, in particular in relation to the examination of the best interests of the child. Nonetheless, it needs to further clarify the authority of its interim measures, in particular when they contradict a domestic court order taken under the Child Abduction Convention and lead to long delays in children’s return. The CRC Committee will also need to clarify when denial of legal aid removes access to effective remedies, in particular in cases of child abductions involving allegations of domestic abuse. Finally, this decision furthers the interpretation of Article 7(d) OPIC, an important development that will need to bear in mind the need to avoid forum shopping and potentially contradictory decisions from different international or regional mechanisms.
This case note has highlighted some of the tensions between the CRC and proceedings under the Child Abduction Convention. Another issue that the CRC Committee will likely have to tackle is the child’s right to be heard during child abduction proceedings (Article 12 CRC). It will be interesting to see the CRC Committee’s position on the child’s right to be heard in proceedings under the Child Abduction Convention, in particular the weight afforded to these views.