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Legal question raised in Portuguese child custody dispute

A Portuguese child custody row has raised a new legal question concerning Strasbourg admissibility conditions, the European Court of Human Rights revealed today.

Judges agreed unanimously in the case of Karoussiotis v. Portugal (no. 23205/08), that there had been a violation of Article 8.

The case raised a new legal question concerning admissibility: did the fact that “infringement proceedings” against the respondent State had previously been introduced before the European Commission make the application to the Court inadmissible as it had “already been submitted to another procedure of international investigation or settlement”? (Article 35 of the Convention, admissibility criteria)

The applicant Diana Karoussiotis, is a German national who was born in 1980 and lives in Krefeld (Germany). She had a son with a Portuguese national in 2001, but the couple separated and the father was deported from Germany after being convicted of drug trafficking. The son never returned from a visit to Portugal to see his father in January 2005.

In March 2005 Ms Karoussiotis requested the assistance of the German authorities to secure the child’s return, as provided for in the Hague Convention. In October 2005 the German authorities sent a request to their Portuguese counterparts for the child’s return. On 24 January 2006 the Braga Family Affairs Court ruled against the child’s return, considering that he was not being kept in Portugal illegally. On 9 January 2009 the Guimarães Court of Appeal found, on the contrary, that the child had been kept in Portugal illegally but, having regard to European Council Regulation EC 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility), considered that it was in the best interests of the child that he should stay in Portugal. The judgment concluded that changing the child’s surroundings and taking him away from his great grandmother, who had become his reference person, might upset his mental balance.

In custody proceedings opened before the Braga Family Affairs Court in March 2005, it was decided that the child would stay with his father for the time being. Ms Karoussiotis asked for custody, alleging that the father had agreed. The great grandmother also applied for the child to stay with her. The proceedings are still under way.

In April 2008 Mrs Karoussiotis brought “infringement proceedings” against Portugal before the European Commission for violation of Regulation EC 2201/2003 because of the excessive length of the proceedings before the Braga court. According to the most recent information in the Court’s possession, those proceedings are still pending.

Complaints, procedure and composition of the Court

The Karoussiotis v. Portugal application was lodged with the Court on 14 May 2008.

Decision of the Court

Admissibility of the Karoussiotis v. Portugal application

The Court essentially had to decide whether the fact that Mrs Karoussiotis had previously lodged “infringement proceedings” against Portugal before the European Commission made her application to the Court inadmissible because it had “already been submitted to another procedure of international investigation or settlement” (Article 35) (2).

That would indeed have been the case if “infringement proceedings” could be considered, from the procedural viewpoint and that of their potential outcome, as individual applications within the meaning of Article 34 of the Convention.

However, the Court found that this was not the case. The sole purpose of “infringement proceedings” was to secure voluntary compliance by the State concerned with the requirements of European Union law. The European Commission had discretion to launch “infringement proceedings” before the Court of Justice of the European Union, whose judgment had no effect on the complainant’s rights and could not award any individual redress (the Court of Justice could only oblige the State concerned to comply with its obligations).

Mrs Karoussiotis could therefore not be considered to have already submitted her application “to another procedure of international investigation or settlement”. It was therefore admissible.

Alleged violation of the right to respect for private and family life

The Court reiterated that Article 8 implied the right for a parent to have measures taken with a view to being reunited with his or her child and an obligation for the national authorities to take such action (but this was not an absolute right; among other things, the State had to take the best interests of the child into account).

The Court also reiterated that proceedings in this field should be dealt with promptly as the passage of time could have irremediable consequences for the child’s relationship with the remote parent. Indeed, both the Hague Convention and Regulation EC 2201/2003 required the requested authorities to take urgent steps to secure the child’s return. Delays of more than six weeks could give rise to requests for explanations.

The Court noted that the proceedings concerning the request for the child’s return to Germany had taken about three years and ten months in all, at two levels. There was no doubt that the length of the proceedings had penalised Ms Karoussiotis, particularly as her child had been less than four years old when he had left for Portugal. As to the proceedings to determine where the child should live, they were still pending more than five years and eight months later.

The Portuguese authorities had not taken effective steps to expedite the proceedings, and this had alienated the child from the parent – the applicant. There had therefore been a violation of Article 8 in respect of Ms Karoussiotis.

Article 41

As Ms Karoussiotis had failed to submit hers in time, the Court made no award in this respect.

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