On June 01, 2022, the case was won in the UN Committee on the Rights of the Child.

Заголовок: On June 01, 2022, the case was won in the UN Committee on the Rights of the Child. Сведения: 2024-05-09 05:39:34

The case of N.E.R.A. v. Chile. Views of the Committee on the Rights of the Child dated June 1, 2022. Message No. 121/2020.

In 2020, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Chile.

In the Committee's opinion, the decision of the Supreme Court of Chile to return H.M. (the author's son) to Spain pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction did not comply with the condition arising from his right to the priority consideration of his best interests, in violation of article 3, paragraph 1, of the Convention on the Rights of the Child, considered separately and in conjunction with articles 9 and 23.

As seen from the text of the Views, the author claimed that by deciding to return her child to Spain, the State party violated her rights under articles 3, 9, 11 and 23 of the Convention on the Rights of the Child. With regard to article 3 of the Convention, the author recalled that the concept of ensuring the best interests of the child is a fundamental right, a principle of interpretation of the law and a rule of procedure. The author of the message emphasized the special vulnerability of her son, who has been diagnosed with autism. She argued that, specifically in his case, the Supreme Court did not consider the circumstances of the best interests of the child and did not attach due importance to them, since, as indicated in its ruling, it based its decision solely on the Hague Convention on the Civil Aspects of International Child Abduction, and not on compliance in form and substance with the principle, as stipulated in article 3 of the Convention. With regard to article 9 of the Convention, the author claimed that because of H.M.'s autism. (the author's son) his separation from his mother will have serious and potentially irreversible consequences for his mental health. With regard to article 11 of the Convention, the author argued that the State party should not have transferred the child to the State if there were reasonable grounds to believe that he would be in real danger of irreparable harm. The author also claimed that, in violation of article 23 of the Convention, the Supreme Court did not take due account of the condition of H.M., who was diagnosed with autism at an early age and who is receiving medical care in Chile. His relocation to Spain will in practice lead to separation from his mother, who is his primary guardian, with whom he feels safe and has established the strongest emotional ties (paragraphs 3.1 - 3.4 Considerations).

The Committee's legal position: the examination of facts and evidence and the interpretation of national legislation is within the competence of national authorities, except in cases where such consideration or interpretation is obviously arbitrary or amounts to a denial of justice. The Committee considers that in cases of international return of children and adolescents, the role of the Committee is not to decide whether the Hague Convention on the Civil Aspects of International Child Abduction has been correctly interpreted or applied by national courts, but to ensure that such interpretation or application complies with the obligations established by the Convention on the Rights of the Child (para. 7.4 Considerations).

The Committee recalls that, in accordance with article 3, paragraph 1, of the Convention on the Rights of the Child, States parties must ensure that the best interests of the child are given priority in all actions or decisions taken with regard to children by public institutions. The Committee also draws attention to the fact that the decision to return the child to another country is an "action" within the meaning of article 3 of the Convention. The Committee emphasizes that the best interests of the child should be "adjusted and determined on a case-by-case basis in accordance with the specific situation of the child... taking into account his personal context, situation and needs" (paragraph 8.2 of the Considerations).

The Committee notes that the Convention on the Rights of the Child should be interpreted in accordance with the general principles of international law. Any such interpretation should take due account of the context of application of the Convention, which, according to subparagraph "c" of paragraph 3 of article 31 of the Vienna Convention on the Law of Treaties, includes "any relevant rules of international law applicable in relations between the parties", and, in particular, rules relating to the international protection of human rights. With regard to international child abduction, the Convention on the Rights of the Child should be interpreted taking into account the obligations of States parties under the Hague Convention, especially since, as the State party recognizes, in accordance with article 11 of the Convention on the Rights of the Child, States parties should take measures against the illegal export and detention of children abroad, including by joining agreements such as the Hague Convention (paragraph 8.3 of the Considerations).

The Committee recognizes the complexity and diversity of circumstances that may arise in each case, as well as the fact that the objectives of the Hague Convention on the Civil Aspects of International Child Abduction, namely, the prevention of child abduction and their immediate return, are aimed at protecting the best interests of the child. The Committee notes that the Hague Convention establishes a firm presumption that ensuring the best interests of the child means his immediate return. However, this presumption can be refuted by the exceptions set out in articles 12, 13 and 20 of the Hague Convention, according to which, in each case, it is necessary to determine whether such a return would in fact be in clear conflict with the best interests of the child. In such cases, the best interests of the child within the meaning of article 3 of the Convention on the Rights of the Child are the main consideration when deciding on return. The Committee notes that the above does not mean that the decision on the international return of the child, taken by the national court solely on the basis of the Hague Convention, necessarily ensures compliance with the obligations of the State party under the Convention on the Rights of the Child. In particular, since the child's right to have his or her best interests taken into account in the first place presupposes the application of procedural guarantees and interpretative standards, it cannot simply be stated that all decisions of national courts taken solely on the basis of the Hague Convention will inevitably lead to compliance with article 3 of the Convention on the Rights of the Child. It is up to the national courts to ensure that the standards of article 3 of the Convention on the Rights of the Child are respected in every decision in which the exceptions provided for in articles 12, 13 and 20 of the Hague Convention are applied or used (paragraph 8.4 of the Considerations).

Among other things, the Hague Convention aims to protect the right of children not to be illegally removed or detained, to ensure that custody or guardianship decisions are made by a judge at their place of habitual residence, to maintain regular contact with both parents and their families and to promptly resolve a request for return. See the Explanatory report of the Rapporteur on the Hague Convention, paragraphs 11 and 24-25.

The Committee considers that, when deciding on cases of international child abduction, national courts should, first, effectively assess the factors that may constitute an exception to the obligation to immediately return the child (according to articles 12, 13 and 20 of the Hague Convention on the Civil Aspects of International Child Abduction), in particular when such factors They are raised by one of the parties to the proceedings, as well as to make a sufficiently informed decision on this issue. Secondly, such factors should be assessed taking into account the best interests of the child. The Committee emphasizes that the second condition largely depends on the actual definitions, which usually fall within the jurisdiction of national courts. The Committee notes that, given that the Hague Convention is designed to ensure a fair balance between the standard establishing a presumption in favor of the international return of a child and factors that, in certain cases, may make such return contrary to the best interests of the child, it seems unlikely that proper observance of the above-mentioned procedural guarantees will lead to a significant violation of article 3 of the Convention (paragraph 8.5 of the Considerations).

The Committee is aware that the purpose of the Hague Convention on the Civil Aspects of International Child Abduction is to return children to their countries of habitual residence so that, if necessary, custody and child protection issues can be resolved in this jurisdiction. He also notes that decisions on return should be taken promptly in order to ensure the proper restoration of the normal situation of the child and practical guarantees of the feasibility of return, in order to avoid distorting the purpose and object of the Hague Convention (See Explanatory Report of the Rapporteur on the Hague Convention, paragraph 22). In this regard, the Committee considers that, in accordance with the principle of ensuring the best interests of the child, a strict interpretation of the exceptions to the obligation to return the child established in the Hague Convention should be followed. National judges called upon to apply The Hague Convention should not be required to have the same level of scrutiny of the best interests of the child as judges called upon to make decisions on custody, visitation or other related matters, especially if the first of the above-mentioned judges does not have access to the same evidence and information as judges of the country of ordinary accommodation. Nevertheless, the judge deciding on the return must assess, taking into account the limited exceptions established in the Hague Convention and in accordance with the requirements of article 3 of the Convention on the Rights of the Child, the extent to which the return may cause physical or psychological harm to the child or otherwise would be clearly contrary to his best interests (paragraph 8.6 of the Considerations).

The Committee's assessment of the factual circumstances of the case: the author's argument was taken into account that in its decision the Supreme Court incorrectly applied the concept of ensuring the best interests of the child both in form and in substance. First, the Committee considered that the examination of this allegation did not mean that it had assumed the role of an appellate body or that the courts had revised the interpretation of national legislation in force in the State party; Rather, it could mean examining the compliance of domestic decisions with the State party's obligations under the Convention on the Rights of the Child under article 5 of the Optional Protocol. Secondly, the Committee noted that, since the principle of ensuring the best interests of the child, as enshrined in article 3 of the Convention on the Rights of the Child, imposes both procedural and substantive obligations, it is within the competence of the Committee to verify the compliance of these obligations with the reasoning underlying decisions taken by national courts. Thirdly, the Committee pointed out that the very substance of the author's allegations lies in determining the extent of the State party's obligations under the Convention on the Rights of the Child in relation to decisions taken on the basis of the Hague Convention (paragraph 7.4 of the Views).

The Committee took note of the author's argument that the decision to return H.M. (the author's son) to Spain would violate articles 9 and 23 of the Convention on the Rights of the Child, since his return would have serious and potentially irreversible consequences for his mental health, especially given his autism, as this would entail his separation with his mother, who is his primary caregiver and the person with whom he has the strongest emotional ties. The Committee noted that these allegations were based on the factual premise that the return of H.M. it will entail his separation from his mother. The Committee recalled that its functions, as a rule, do not include the establishment or review of issues of facts determined by national courts. However, since the author claimed that the Supreme Court did not pay due attention to her possible separation from H.M. and the impact that such separation would have on the child due to his particular vulnerability, the Committee considered that these allegations were sufficiently substantiated for purposes of admissibility, since they could be considered tantamount to violations of article 3 of the Convention on the Rights of the Child in conjunction with articles 9 and 23 (paragraph 7.5 of the Views).

The Committee found the author's allegations under article 3 of the Convention, in conjunction with articles 9 and 23, admissible, since perhaps the best interests of H.M. had not been properly taken into account, in particular in connection with his possible separation from his mother and the impact this would have on his mental health, taking into account his autism (paragraph 7.7 of the Considerations).

The Committee had to determine whether taking into account the best interests of the child was the main consideration under article 3 of the Convention when the Supreme Court decided to return H.M. to Spain in application of the Hague Convention on the Civil Aspects of International Child Abduction (paragraph 8.2 of the Opinion).

The Committee took note of the State party's argument that the application of the Hague Convention on the Civil Aspects of International Child Abduction is directly aimed at ensuring compliance with its obligation to take into account the best interests of the child in accordance with the Convention on the Rights of the Child and therefore it cannot be argued that the Supreme Court did not take into account the best interests of H.M. (paragraph 8.3 of the Views).

Having considered the initial question of the standard applicable under article 3 of the Convention on the Rights of the Child to cases of international return of children, the Committee had to determine to what extent, in the specific case of H.M., the Supreme Court decision complied with this standard. The Committee took note of the State party's argument that all decisions were duly justified and motivated. He also noted that after a thorough analysis of the evidence and applicable standards, the First Family Court of the City of Viña del Mar, whose decision was later confirmed on appeal, in accordance with paragraph "a" of article 13 of the Hague Convention on the Civil Aspects of International Child Abduction, rejected the application for the return of H.M. on the grounds that The father has agreed to the child's stay in the State party. The Family Court also noted that due attention should be paid to the fact that the return of H.M. It will create a "harmful and harmful environment" for him, especially in light of his special vulnerability due to potential separation from his mother, whose role in H.M.'s life is especially important given his condition. These conclusions became part of the analysis of the best interests of the child in the meaning provided for by the Convention on the Rights of the Child. The Committee noted that, by a decision of the Supreme Court, the Family Court's ruling was overturned on the grounds that the proven facts could not be interpreted as the father's consent to make Chile the place of permanent residence of H.M. The Committee noted that the Supreme Court stated in its decision that the author had not proved that there was a serious risk in connection with the requested return (paragraph 8.7 of the Opinion).

The author referred to the exception provided for in paragraph "b" of article 13 of the Hague Convention on the Civil Aspects of International Child Abduction, on the grounds that the alleged dependence of the father (the father spent most of the day communicating with strangers on the Internet) could endanger H.M., an allegation that the Supreme Court considered unproven.

The Committee considered that the decision of the Supreme Court did not adequately refute a number of elements established and included in the decision of the court of first instance, as well as confirmed by the Court of Appeal, which were important for determining whether H.M. should be returned to Spain, primarily taking into account his special vulnerability caused by autism, as well as his potential separation from his mother, who occupies an important place in his life due to his condition. The above was all the more important due to the fact that this decision refuted the conclusions of the lower courts regarding the exception established in paragraph "a" of article 13 of the Hague Convention on the Civil Aspects of International Child Abduction. Despite the understanding that separation, no matter how severe it may be for the child, does not automatically meet the criterion of the severity of the risk, for example, in the light of the requirements of paragraph "b" of Article 13 of the Hague Convention, it was necessary to properly consider the real possibility for the parent to return to the country of habitual residence of the child and maintain contact with him, especially in a case like that of H.M., given the circumstances described above. In particular, special attention should have been paid to his young age at the time of the Supreme Court's decision (three years), the fact that the author was a special person for H.M. during his autism treatment in the State party for the previous two years, as well as the fact that an arrest warrant was issued against the author arrest in Spain. The Committee noted that the Supreme Court's decision refers only to the rights of the father and does not mention anything about the rights or best interests of H.M. Accordingly, without going into a discussion of the Supreme Court's assessment of the facts and applicable standards, the Committee considered that the lack of sufficient argumentation in the Supreme Court's decision did not allow it to confirm that the court had effectively assessed the factors described above (paragraph 8.8 of the Considerations).

The Committee took note of the State party's argument that the scope of the communication could not be reduced to a decision of the Supreme Court, since the interim hearing on the execution of the return order was held in order to ensure the safe return of the child to his country of habitual residence and thereby ensure his best interests, in order to avoid irreparable harm to him. The Committee found that the decision of the Supreme Court ordered the immediate return of H.M. to Spain without specifying the conditions under which his return should take place. The Committee noted that the interim hearing held on November 6, 2020, was limited to the enforcement of the return order and therefore could not remedy the Supreme Court's inability to effectively assess factors that might constitute an exception to the obligation to immediately return the child. The Committee considered that the court ordering the return of the child, at the time of making such an order, should be confident that all necessary measures will be taken for his safe return. The Committee noted the decision to return H.M. to Spain did not comply with the condition arising from his right to have his best interests taken into account, in violation of article 3, paragraph 1, of the Convention, considered separately and in conjunction with articles 9 and 23 (paragraph 8.9 of the Considerations).

The Committee's conclusions: The facts presented indicated a violation by the State party of article 3, paragraph 1, of the Convention, considered separately and in conjunction with articles 9 and 23 (paragraph 8.10 of the Views).

 

 

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