VERHOEVEN V. FRANCE (APPLICATION NO. 19664/20) 

VERHOEVEN V. FRANCE (APPLICATION NO. 19664/20) 

Court: 

The European Court of Human Rights 

Date of Judgement: 

28 March 2024 

Judges: 

Georges Ravarani (Luxembourg), 

Lado Chanturia (Georgia), 

Carlo Ranzoni (Liechtenstein), 

Mārtiņš Mits (Latvia), 

Stéphanie Mourou-Vikström (Monaco), 

Mattias Guyomar (France), 

Kateřina Šimáčková (the Czech Republic), 

Martina Keller. 

Introduction: 

The Verhoeven v. France case involved a child’s return to Japan under the 1980 Hague Convention after the mother relocated and initiated divorce proceedings. The European Court of Human Rights ruled that the French authorities acted lawfully and in accordance with the Convention, assessing the child’s best interests and addressing potential harm risks. The case reflected the best interests of the child, referring to the Article 8 of the European Convention on Human Rights (ECHR) along with the UN Convention principles on child rights. 

Facts of the case: 

Marine Verhoeven, a French national, born in 1988, had entered into a marriage with a Japanese national, who is identified as “K” in 2007. The couple resided together concurrently to the birth of their child, identified as “L” in June 2015. However, the marriage didn’t last which led Ms Verhoeven to return to France, in July 2017, along with her son and filed for a divorce. “K” later lodged an application in regards to the return of their son, seeking assistance from Japan’s Minister of Foreign Affairs and served within its area of authority as the Central Authority for the execution of the Hague Convention. 

Subsequently, on 8 January 2018, Ms Verhoeven was called for an appearance before the court, which was summoned by the public prosecutor at the Montpellier tribunal de grande instance. It was then held the separation of the child was unlawful pursuant to Article 3 of the Hague Convention, given that the parents had collectively displayed parental authority up until the return to France. On 20 February 2018, an appeal was filed in opposition to the decision. Ms. Verhoeven appealed a ruling that the Montpellier Court of Appeal had upheld. The case was referred back to the Toulouse Court of Appeal after the Court of Cassation overturned the ruling. On an additional note, in October 2018, “K” still exercised his effort for the return of his son, in accordance with the procedures set out in the Abduction Convention 

Following the next judgement held on 4 July 2019, the Toulouse Court of Appeal still stands on their decision back on 8 January 2018, ordering for the return of her son to his paternal parent. The Court ruled out the evidence supplied by Ms Verhoeven as it lacks a proper basis such as  the no unambiguous proof of the father’s consent to the applicant’s staying in France with the child. Not only that, the Court also rejected the grounds that the father poses a potential harm to the child and deemed the risk of ties being severed unfounded. She appealed again as opposed to the decision however was rejected. Furthermore, the order to return their son back to his father by the public prosecutor on 26 December 2019, was done in the presence of the police and K’s lawyer. 

Rules and legal issues: 

The case concerns Article 8 of the European Convention on Human Rights which encapsulated the right to respect family or life. 

• Whether there was a violation of the right to family life under Article 8 ECHR? 

Ms. Verhoeven, the applicant, contended that her rights under Article 8 had been violated due to the order by the French court for the son’s return to Japan. She had argued that the decision of the French courts to grant full parental authority to the father, allowing the return of their son to Japan, possessed the capability of the mother and the son’s relationship to be disrupted. It was further highlighted that maintaining contact would be particularly challenging for her due to geographical distance and lack of enforceable access rights in Japan. 

Additionally, there was an issue on the basis that the decision made by the French courts failed to consider her rights as the mother and how it would greatly affect her ongoing relationship with her son, further claiming that the judicial process was flawed. 

Court’s decision and reasoning: 

Decision: There was no violation of Article 8 ECHR 

The Court had carefully looked into the factors pertaining to the applicant’s claims along with the domestic courts decision while noting the fact the decisions had relied on the Hague Convention or namely known as the Abduction Convention. They had referenced its earlier decision in X v. Latvia, where it had laid out a framework aimed at aligning the principles of the European Convention on Human Rights with those of the Hague Abduction Convention. The purpose of the treaty was to protect the rights of and freedom of the father, “K” and the son, “L”. It was also worthy mentioning that each of the decisions were made in the best interests of the child. The Court had considered multiple issues such as the consent of the father to the child’s retention in France. The question of whether the act was done in accordance with the best interest along with grave risk surrounding the child was also further examined. Furthermore, the Court had further dismissed the claim regarding the father’s violent conduct, taking into account the child’s age and the potential impact of severing the relationship with the mother. It concluded that the domestic courts had fulfilled the requirements set out under the Convention. 

The matter of consent by the father regarding the child’s retention in France was addressed, stipulating the use of the Abduction Convention no longer prevails. The Court did observe, nevertheless, that the French courts had already looked at this argument thoroughly and had provided specific reasons for rejecting it. Furthermore, Ms. Verhoeven eventually stopped using this argument as a basis for opposing her son’s return to Japan. On the other hand, an observation was done towards the claim of violence. She had failed to provide any physical evidence in support of such a claim, however pointed out the risk of the child being exposed to psychological harm from the father in Japan. As a result, the French courts properly assessed the risk and the authorities offered sufficient justification for the decision to return the child to Japan, with continuous regard for the child’s best interests Not only that, the argument that the child would suffer from psychological harm due to the separation of his mother was examined together with the potential harm of his return to Japan. It was ruled that the child’s adjustment to life in France does not possess a concrete reason to prevent his return. In fact, the Court determined that the main goal was to re-establish the child’s stable and peaceful life with his father and paternal family in Japan, whom he had been unjustly separated from. Thus, such conclusion was derived from the basis that there was no danger of his return and that there was no need in seeking professional assistance on the matter. 

This is due to the fact that returning the child would not be in Using the Hague Convention as a framework, French courts and the European Court of Human Rights determined that Japan complied with the Hague Convention and that, in the absence of significant harm, the child should be returned. The Court also took into the knowledge that Japan’s laws would deprive the mother’s parental rights and it would be impossible for her to reside there. Initially, the Court of Cassation failed to put into account these matters and overturned the decision on that basis, however later the Court of Appeal of Toulouse concluded that the domestic court had fulfilled their obligation in its procedure, considering the rights stated under Article 8 of ECHR. It was uncertain on the legal consequences of a divorce under the Japanese law, The applicant also didn’t manage in proving that she couldn’t live in Japan, while the father had made friendly offers to help her reside there with the child. 

On the other hand, the Court of Cassation upheld the lower courts’ decision stating that the legal risks had been properly examined. It was emphasized that France had accepted the Hague Convention without reservations, allowing French courts to use information from Japanese authorities, including Japan’s Central Authority, for harm assessment. As previously stated, the Court had noted the fact that the mother was not a Japanese national, having a possibility of access rights to the child, as it gained international attention. Furthermore, the return of the child ordered by the domestic courts was not done automatically but rather acknowledged into the applicant’s claims in the lawful process, centralizing the child’s best interests on the decisions. Thus, there was no violation of the Article 8 of ECHR. 

Critical analysis and conclusion: 

At the heart of this case was the need to do what’s best for the child, which lies at the core of both the Abduction Convention and the European Convention on Human Rights. Decisions of the domestic courts relied on the above principle however there was a difference of an opinion from Judge Mits. He had stressed on whether the Abduction Convention provides an equal approach catered to the child’s return to his father in Japan or a matter of acceptance disrupting the relationship between the mother and the child? 1It was a rather immoral decision as it seemed to favour the father more than the mother. Despite the issue being somehow left in the void, each of the procedures done was to shield the child from any potential harm and guarantee that the parent who abducted would not face any legal repercussions from their conduct2. The child’s best interests call for immediate return to their state of residence and forwarding of the matter back to the courts of that state on merits3. 

The validity of the private international law and children rights law aren’t the root of the problem brought upon but rather it was more to the gaps in the Japanese law in catering to the custody issue. The legal framework in Japan isn’t parallel to the mechanism of international law such as the UNCRC. Specifically, Article 9(3) of the UNCRC recognises that when a child is separated from one or both parents, they have the right to maintain regular personal contact and communication with both of them4. The children residing in Japan are usually faced with the complications of keeping in touch with their parent who aren’t Japanese nationals5. Japan only grants visas to parents of Japanese children with exclusive custody. The Japanese had no proper enforcement of such laws although their law acknowledged that if the other parent was not given the custody rights, they still possess the access rights. Ultimately, it defeats the idea sought upon the Convention which is deciding on what was in the best interests of the child. 

In conclusion, the case of Verhoeven v France lays the application of the private international law and children rights laws and its parallelism to its other operation. Both involving States in regards to the abduction of the child must fulfill the requirements of both instruments. The Japanese law is unable to cater to the UNCRC which may be said as the primary violation of the children’s rights in this case.6 The flawed system caused a certain bias towards non-nationalist and their rights to remain in contact with their children are deprived. Over and above that, In order to respect its international agreements, such as the 1980 Hague Convention and the UNCRC, the European Parliament has urged Japan to improve its domestic legal system and its application of existing laws 7. Furthermore, shifting back to the initial issue of violation of Article 8 of ECHR on right to family life, the French Courts had carefully looked into each of the factors which held there was no violation of the Act. 

Reference(S) 

Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3. 

H.F. and Others v. France, App. No. 24384/19, Eur. Ct. H.R. (2024), https://caselaw.statelessness.eu/caselaw/ecthr-hf-and-others-v-france. 

Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. 

Harmonising Private International Law and Children’s Constitutional Rights in Verhoeven v. France, Modern Diplomacy (Aug. 27, 2024), https://moderndiplomacy.eu/2024/08/27/harmonising-private-international-law-and-childrens-co nstitutional-rights-in-verhoeven-v-france/. 

Hearing of the Grand Chamber of the European Court of Human Rights in the Cases of H.F. and M.F. v. France and J.D. and A.D. v. France, Eur. Ct. H.R. (Mar. 29, 2023), https://rm.coe.int/hearing-of-the-grand-chamber-of-the-european-court-of-human-rights-in-/1680 a3f935. 

Verhoeven v. France – Reconciling Private International Law and Children’s Rights Law in International Child Abduction Cases Remains a Difficult Task, Strasbourg Observers (July 12, 2024), 

https://strasbourgobservers.com/2024/07/12/verhoeven-v-france-reconciling-private-international -law-and-childrens-rights-law-in-international-child-abduction-cases-remains-a-difficult-task/.

1 Harmonising Private International Law and Children’s Constitutional Rights in Verhoeven v. France, Modern Diplomacy (Aug. 27, 2024), https://moderndiplomacy.eu/2024/08/27/harmonising-private-international-law-and-childrens-constitutional-rights-i n-verhoeven-v-france/.

2Ibid 

3Ibid 

4 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3. 

5 Verhoeven v. France – Reconciling private international law and children’s rights law in international child abduction cases remains a difficult task, Strasbourg Observers (July 12, 2024), https://strasbourgobservers.com/2024/07/12/verhoeven-v-france-reconciling-private-international-law-and-childrens -rights-law-in-international-child-abduction-cases-remains-a-difficult-task/. 

6Ibid

7Ibid