Category: Family Law

As I have explained here many times previously, the rationale behind the Hague Convention on Child Abduction is that the child should usually be returned to their ‘home’ country, where decisions as to their welfare should be made. The ‘defences’ to a Hague application open to the ‘abducting’ parent are therefore very limited. One of those defences is that there is a grave risk that the child’s return would expose them to physical or psychological harm, or otherwise place the child in an intolerable situation.

It is comparatively rare for such a defence to be successful. Sometimes, however, the court, perhaps in its ‘eagerness’ to follow the rationale and order a return, gets it wrong, by not accepting the defence when perhaps it really should. Such was the situation in the recent European Court of Human Rights (‘ECHR’) case OCI and others v Romania.

The facts in the case were that the mother was a Romanian national and the father was an Italian national. They had two children, who held joint nationality. The family resided in Italy.

In June 2015 the family went to Romania for the summer holidays. A few days later the father returned to Italy, expecting to go back to collect the mother and the children at the end of the summer. On the 25^th of June 2015 the mother informed the father that she and the children would not be returning to Italy. The father made an application under the Hague Convention for the summary return of the children to Italy.

The mother opposed the application, raising the ‘grave harm’ defence. She alleged that the father had used serious violence towards the children, including beating them with hard objects, bruising their faces and giving them nose bleeds, calling them names and humiliating them. The Romanian court found that the evidence proved “without doubt that the father used physical force and a raised voice to discipline his children”, and the father confirmed this in his statement. Notwithstanding this finding, the court found that there was nothing to oppose the children’s return to Italy, and therefore made a return order. The mother appealed, but the appeal court upheld the return order. However, the order was never enforced, due to the children’s refusal to go back to Italy.

The mother, on her behalf and on behalf of the children, issued proceedings in the ECHR, alleging that the Romanian courts had breached their right to respect for their family life, protected by Article 8 of the European Convention on Human Rights, in so far as the courts had failed to take into account the grave risk that the children would be subject to physical or psychological harm at the hands of their father.

The ECHR found that there had been a violation of Article 8. The Romanian courts, while condemning in general terms abuse against children, were nevertheless satisfied that what the children had suffered at the hands of their father had only been occasional acts of violence and would not reoccur “often enough to pose a grave risk”. However, that assessment ran counter to the prohibition of abuse against children under domestic law, and cast doubt on the decision-making process. The ECHR said:

“Corporal punishment against children cannot be tolerated and States should strive to expressly and comprehensively prohibit it in law and practice … In this context, the risk of domestic violence against children cannot pass as a mere inconvenience necessarily linked to the experience of return, but concerns a situation which goes beyond what a child might reasonably bear.”

Furthermore, there was nothing in the Romanian courts’ decisions that led the ECHR to believe that they considered that the children were no longer at risk of being violently disciplined by their father if returned to his care.

The ECHR considered that the Romanian courts should have given more consideration to the potential risk of ill-treatment of the children if they were returned to Italy. They should have at least ensured that specific arrangements were made in order to safeguard the children. In short, the Romanian courts had failed to examine the allegations of “grave risk” in a manner consistent with the children’s best interests within the scope of the procedural framework of the Hague Convention, and there had accordingly been a violation of Article 8.

You can read the full report of the case here.

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I wrote here last week explaining why we don’t need another code of conduct for solicitors dealing with children disputes (we already have one). Remarkably, despite my post there are still some who are not convinced, and who continue to call for a new code. Yes, I know that it is difficult to understand that some people disagree with me, but clearly I need to explain in more detail.

Seriously, I’m sure that most of those who make these calls are well meaning, but what bothers me is the implied idea that any further code must by definition be a good thing. But you can’t solve everything just by making more rules. It needs to be understood that ‘more is not necessarily better’. In fact, more can actually be a bad thing.

For a start, another code would impose a further burden on family law solicitors, who are already have enough law, rules, guidance and codes to weigh them down. Yes, I realise that few lay people are going to be concerned about how much solicitors are required to know, but every new thing further impinges upon their freedom of action. I’ve often thought that I’m glad I stopped practising ten years ago, as there now so many sets of rules, guidance and codes that I would be afraid to advise a client upon a particular course of action, for fear that I might be in breach of the latest edict setting out the ‘correct’ way to proceed.

And any new code will obviously be more complicated than what we have now, dealing with specific situations that its proponents believe are required to be covered (more of which in a moment), rather than generalisations. But surely, a more complicated code is less likely to be remembered and complied with than a simple code. The beauty of the Resolution Code is its simplicity. It essentially comprises seven short and easy to remember sentences (excluding the Guides to Good Practice). And most of it is common sense anyway (again, more of which in a moment). In the realm of children disputes, if one just follows the first two points of the Code (‘Reduce or manage any conflict and confrontation; for example, by not using inflammatory language’, and ‘Support and encourage families to put the best interests of any children first’) then you are not going to go far wrong. You can simply apply those general principles to whatever situation you are faced with.

Which brings me to my next point. A more complicated code is, by definition, going to be more rigid. It will prescribe what to do in a given situation. But you simply cannot cover all possible situations that a family lawyer will face, and very often the situation is not as ‘black and white’ as any code maker may envisage. In fact, a rigid code may even point towards the wrong outcome.

And that brings me to my last point. A rigid code encourages solicitors to disregard the one thing that they require above all else: common sense (yes, I accept that some family law solicitors may be lacking in this commodity, but I’m sure the vast majority are not.) Common sense is what is really required to guide family law solicitors, just as it is anyone else. Yes, use a basic code as an outline, but apply common sense to it. Don’t let yourself be blindly guided by a code, just because you have been told that you must follow it.

Let us finish by briefly looking at some practical examples. After she read my last post, that well-known and very highly regarded family lawyer to whom I referred, and who suggests a further code may be required, sent me the following tweet (I have expanded the abbreviations, for the sake of clarity):

“Agree that respecting/enforcing existing codes vital. But clear that more needed. Are we, for example, under a duty to follow instructions if they are obviously in conflict with the child’s best interests? What should be our role getting clients to sign a parenting pledge? What about litigants in person?”

OK, I think I can deal with those three examples very quickly, using what we have already: follow the ‘put the best interests of the child first’ point in the Resolution Code, and apply common sense. Sorted.

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