Published on 4 July 2022

FOURTH SECTION

Application no. 18737/18 F.D. and H.C. against Portugal lodged on 16 April 2018 communicated on 15 June 2022

SUBJECT MATTER OF THE CASE

The second applicant was born in Portugal on 11 October 2010 and is a French resident. The first applicant is his father. Following his separation from the second applicant’s mother, O., the Family Court of Privas (France) granted the first applicant contact rights with the second applicant and granted custody exclusively to his mother.

On 8 October 2017, after spending the weekend with the first applicant, the second applicant was not returned to O.

On 11 December 2017, the Family Court of Privas attributed parental rights exclusively to O. and suspended the first applicant’s contact rights with the second applicant.

Subsequently, the French authorities issued a location and judicial return order concerning the second applicant, with a view to the execution of the decision of 11 December.

The complaint concerns the non-judicial proceedings initiated by the Porto Public Prosecutor’s Office (no. 240/18.6Y3MTS) following the French authorities’ request concerning the second applicant. It also concerns the enforcement by the Portuguese police authorities of the mentioned location and return order, in the morning of 15 February 2018, at the primary school attended by the second applicant.

Relying on Article 6 § 1 of the Convention the first applicant, acting in his own name and on behalf of the second applicant, complained of the unfairness of the proceedings brought by the Porto Public Prosecutor’s Office against them (proceedings no. 240/18.6Y3MTS) due to the lack of a judicial hearing and the lack of impartiality of the Public Prosecutor.

Under Article 8 of the Convention the first applicant, acting in his own name and on behalf of the second applicant, also complained that the second applicant was returned to O. without an assessment of there being a grave risk in his regard.

Under Article 13 of the Convention the first applicant, acting in his own name and on behalf of the second applicant, complains of the absence of an effective remedy in respect of these complaints.

Under Article 8 of the Convention the first applicant, acting in his own name and on behalf of the second applicant, alleges that the manner in which the return order was dealt with by the Portuguese authorities breached their right to private and family life.

QUESTIONS TO THE PARTIES

1. Under which legal framework was the location and return order regarding the second applicant issued by the French authorities?

Questions regarding the first applicant:

2. Has there been a violation of the first applicant’s right to respect for family life, contrary to Article 8 of the Convention?

3. In particular, were the proceedings initiated by the Porto Public Prosecutor’s Office in accordance with the procedural requirements of Article 8 of the Convention (see, mutatis mutandis , Avotiņš v. Latvia [GC], no. 17502/07, §§ 96-127, 23 May 2016, and, mutatis mutandis, X. v. Latvia , no. 27853/09, §§ 98 and 107, 26 November 2013)?

Question regarding the second applicant:

4. Does the first applicant have standing to act on behalf of his son, the second applicant (see Raw and Others v. France , no. 10131/11, § 51, 7 March 2013, and Strand Lobben and Others v. Norway [GC], no. 37283/13, § 157, 10 September 2019)?

5. In the affirmative, has there been an interference with the second applicant’s right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention?

6. If so, was that interference in accordance with the law, pursuing a legitimate aim and necessary in a democratic society (see, mutatis mutandis Maire v. Portugal , no. 48206/99, §§ 71 and 74, ECHR 2003 VII, and Maumousseau and Washington v. France , no. 39388/05, §§ 84-85, 6 December 2007)?