Child relocation, soft law, and the quest for uniformity at the European Court of Human Rights – Part one

Studia Prawa Prywatnego | 03-04/2020
DOI: 10.32027/SPP.20.3.4
Olga Ceran

Broadly speaking, child relocation disputes involve decisions on allowing one of the parents to move to a new geographic location with the child, in particular to another jurisdiction.1 The effects of distance on relationships, particularly in the case of cross-border moves, which are often accompanied by cultural and linguistic factors that may shape the child’s future, raise the stakes above those found in many other parental disputes. The complexity of this matter, and the divergent approaches to child relocation, paired with alleged links between child relocation and child abduction laws,2 have in recent years prompted calls for the establishment of a common international framework on child relocation.3 These calls have led to various initiatives aimed at developing a ‘more uniform’4 and ‘comprehensive and coherent’5 approach internationally. However, none of these have resulted in a binding instrument, and the ability of soft law on child relocation to accomplish these goals has met with some scepticism. The diversity of national approaches, all relying on the ambiguous principle of the child’s best interest, have led some authors to the conclusion that a binding international instrument on child relocation is not possible, and in any case would not live up to expectations.6 It has been suggested that the difficulty in reaching a uniform, or at least predictable, interpretation of the best interests standard in the relocation context might be mitigated if a superior court could control national interpretations, as the Court of Justice of the European Union could in the European Union (EU). However, such a solution was rejected given the limited powers of the EU in family law matters.7 Questions about the potential for a broader international consensus and the value of non-binding instruments on child relocation remain open.8 At the same time, the role of the European Court of Human Rights (“the ECHR”) – another European tribunal with a long history of dealing with family matters9 – was largely left out of the discussion.10 While, in principle, the Court rules only on the compatibility of national measures with the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Convention”),11 this system may offer a possibility for a supranational body to clarify some of the standards on child relocation cases. The ECHR occasionally makes use of soft law instruments,12 and this could allow it to achieve their objectives more fully. In particular, the Court could make use of the most recent soft law instrument on child relocation –Recommendation CM/Rec(2015)4 on preventing and resolving disputes on child relocation (the “Recommendation”) adopted by the Committee of Ministers of the Council of Europe.13 This article explores whether the ECHR can provide for a more uniform approach to child relocation. It does so by analysing the ECHR’s jurisprudence relevant for child relocation disputes in light of the existing soft law instruments, and the Recommendation in particular. § 2 briefly introduces the underlying themes that make child relocation a unique legal issue with high potential for conflict. § 3 discusses the framework of the Convention relevant for child relocation and the jurisprudence of the ECHR on parental disputes, and § 4 introduces the soft law on child relocation. § 5 then examines that Court’s jurisprudence on child relocation. The article concludes with an assessment of the level of guidance provided by the ECHR so far, its potential to bring more uniformity in dispute resolution, and the prospects for the further use of soft law instruments in the Court.