Information Note on the Court’s case-law 56

September 2003

Guichard v. France (dec.) - 56838/00

Decision 2.9.2003 [Section II]

Article 8

Article 8-1

Respect for family life

Inability of father not having custody to secure under the Hague Convention the return of his child, taken abroad by the mother: inadmissible

The applicant is the father of an illegitimate child born in 1990, whom both he and the mother offici ally acknowledged. In 1992, the mother, who is of Canadian nationality, decided unilaterally to take the child to live with her in Montreal. There the mother obtained custody of the child. The applicant unsuccessfully applied to the French courts for the c hild to be placed under the joint parental authority of both parents. At the same time, the applicant relied on the Hague Convention on the civil aspects of international child abduction and sought the assistance of the Minister of Justice in order to ensu re his child’s return to France. The Minister of Justice refused on the ground that only the mother had parental authority in respect of the child at the time when she moved abroad and that the child’s removal was therefore not “wrongful” for the purposes of that convention. The administrative courts confirmed that the applicant was not entitled to protection under the Hague Convention. Before the Court, the applicant complains that the national authorities refused to intervene on his behalf in application of that Convention.

Inadmissible under Article 8: The family ties established between the applicant and his child may be analysed as “family life”. On the date on which the child was removed, the Civil Code automatically conferred the exercise of parental authority (which entails a right of custody) in respect of the child. The applicant, who did not have “rights of custody” within the meaning of the Hague Convention, could not rely on the protection which it provided. Accordingly, Article 8 of the Conventi on, interpreted in the light of the Hague Convention, did not impose any positive obligations on the French authorities to secure the child’s return. As regards the former Article 374 of the Civil Code, which formed the basis of the refusal to extend the p rotection of the Hague Convention to the applicant, the Court recalls the case-law of the European Commission of Human Rights on compliance with the right to respect for family life of measures taken by the national authorities on the basis of that provisi on. The Court sees no reason in the present case to depart from that case-law: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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