The removal of a child’s custody from his father, in the best interest of the child, did not violate the father’s right to family life

JUDGMENT

Lacombe v. France 10.10.2019 (no. 23941/14)

see here 

SUMMARY

The case concerned proceedings for the return of a child to his mother in the United States under
the Hague Convention.

The Court found that the domestic courts had taken due account of the applicant’s allegations and
that the decision-making process had been fair. The applicant had been able to present his case
fully, while the best interests of the child had been defended.

In view of the authorities’ margin of appreciation the Court considered that the return decision had
been based on relevant and sufficient reasons for the purposes of Article 8 § 2 of the Convention,
viewed in the light of Article 13 (b) of the Hague Convention and Article 3 § 1 of the Convention on
the Rights of the Child, and that it had been proportionate to the legitimate aim pursued.

PROVISIONS

Article 8

PRINCIPAL FACTS

The applicant, Jean-Philippe Lacombe, is a French national who was born in 1968 and lives in Nice.

In April 1998 Mr Lacombe married a Mexican national in Mexico, where the couple also had a child.
In February 2004 the mother took the child to the United States for two months without telling
Mr Lacombe. A divorce was pronounced that year and parental responsibility was assigned jointly to
the two parents; however, the residence order was issued in respect of Mr Lacombe and the mother
had contact rights. In June 2005 the mother was given residence rights, while the father was granted
contact rights.

A first set of proceedings for international abduction was opened in 2005-2006 following
Mr Lacombe’s departure for France with the child. In a judgment of 19 October 2006 the Marseilles
tribunal de grande instance (TGI) held that the child’s removal had been wrongful within the
meaning of Article 3 of the Hague Convention. However, in view of pending proceedings in Mexico
for the attempted murder of the applicant, in which the mother was suspected of involvement, the
TGI held that there was a grave risk that the child’s return would expose him to harm. The court
applied Article 13 (b) of the Hague Convention and did not order the child’s return to his mother.

Following an agreement with the mother, Mr Lacombe agreed to return custody of the child to her.
In April 2007 the family affairs judge at the Mexico Federal District Court removed the applicant’s
parental responsibility in respect of his child on account of the risk that he would leave the country.
In October 2007 the mother left Mexico for the United States, taking the child with her. A warrant
for her arrest was issued by the Mexican authorities for child abduction. Having found his child in Texas in February 2009, the applicant obtained temporary custody from the Texan courts pending a hearing at which the American court was due to rule on the issue of custody. The applicant took his
son to Mexico and then to France, without attending this hearing. The American authorities issued
an arrest warrant against him for child abduction.

The second set of proceedings for international abduction was opened in 2009-2010. In October
2009 the mother applied to the American Central Authority, requesting the child’s return under the
Hague Convention. In August 2010 the American courts granted her custody of the child and, during
the same period, the Marseilles TGI ordered that he be returned to his mother in the United States.
Mr Lacombe handed the child over to the mother but lodged an appeal against that judgment. The
Court of Appeal upheld the judgment, finding that the child’s habitual residence was indeed in Texas
and that he ran no risk of harm in his mother’s care. The Court of Cassation dismissed an appeal on
points of law lodged by the applicant.

THE DECISION OF THE COURT…

Article 8

The Court noted at the outset that the decisions by the French authorities ordering the return of the
child to his mother had been based on the Hague Convention and had been aimed at protecting the
rights and freedoms of the child. The interference, which had been in accordance with the law, had
therefore pursued a legitimate aim within the meaning of Article 8 § 2 of the Convention.

The Court went on to observe that Mr Lacombe’s main argument in the proceedings before the TGI
and the Court of Appeal had been that the child’s residence in the United States was unlawful.

However, the domestic courts had found that the child’s legal place of residence when he left for
France had indeed been in Texas and that his removal to France by his father had been wrongful.
In the proceedings before the TGI Mr Lacombe had argued that the child was at risk of harm with his
mother and wished to remain with his father. However, the Court observed that the TGI had
expressly based its decision on the child’s interview with the police child protection services. It
noted, like the Court of Cassation, that the judge had taken into account the views expressed by the
child, who had shown no signs of objecting to returning to the United States. The TGI had properly examined Mr Lacombe’s allegations of risk and had responded to them by means of detailed reasoning.

In the Court of Appeal proceedings, when the return decision had been enforced, Mr Lacombe had
again claimed that there was a grave risk of harm to the child, both from the mother herself and
from the complete severing of ties with his father. The Court noted that, in giving reasons for its
decision, the appeal court had taken into account both aspects of the risk alleged by Mr Lacombe,
and had at no point declined to examine an allegation of grave risk. On the contrary, it had found
that the child was at no risk of harm in his mother’s care after examining the documents in the file.

Accordingly, the allegation of grave risk in the event of the child’s return to his mother had been
effectively examined on the basis of the considerations set out by Mr Lacombe regarding the child’s
best interests, and the Court of Appeal had given a reasoned decision. The Court also considered
that the decision-making process leading to the order for the child’s return had been fair. Both
Mr Lacombe and the child’s mother had been able to present their case fully. The Court of Cassation,
for its part, had conducted an effective review as to whether the Court of Appeal had given sufficient
reasons for the return decision in the light of the Hague Convention and the child’s best interests.

In sum, the Court found that the domestic courts had taken due account of Mr Lacombe’s
allegations and that the decision-making process in question had been fair and had allowed the
applicant to fully present his case while ensuring that the child’s best interests were defended. In
view of the authorities’ margin of appreciation the return decision had been based on relevant and
sufficient reasons for the purposes of Article 8 § 2 of the Convention, viewed in the light of Article
13 (b) of the Hague Convention and Article 3 § 1 of the Convention on the Rights of the Child, and
had been proportionate to the legitimate aim pursued.

There had therefore been no violation of Article 8.

 


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