Outline of the Substantive Issues
The communication was submitted by the author (N.R), a national of Argentina, on behalf of his daughter (C.R.), for alleged violations of articles 3, 4, 5, 9, paragraph 3, 10, paragraph 2, 18 and 19 of the Convention. For an undetermined time, the author maintained a relationship with L.R.R., a Paraguayan national, as a result of which a girl (C.R.) was born in La Plata (Argentina). In June 2009, 11 days after the birth of her daughter, L.R.R. left with her for her hometown, Asunción (Paraguay), where they established their residence. The author occasionally travelled to Paraguay while the girl was young to visit her. The author explained that no custody decision was ever made, but that it was the girl’s mother who had de facto custody of her. On an undetermined date, the mother decided to rebuild her life and began to prevent contact between the author and his daughter. The author explained that, due to the mother´s intransigence, he was unable to maintain regular communication with his daughter. On February 16, 2015, the author filed a “relationship regime” procedure before the court. He requested that his daughter be able to communicate with him by telephone, and that she could make trips to Argentina that would be paid for by the author. On April 30, 2015, the Court issued final judgment, establishing a communication and visitation regime.
The author alleged that, since the decision on communication and visitation regime was granted, there was a systematic failure to comply with the court order. On October 5, 2015, the author promoted the judgment of execution of sentence and since then, he denounced the failure to comply with the decision before the specialised court on children and adolescents in two occasions (December 24th 2015 and January 6th 2016). The author also filed complaints for delay of justice on April 29, 2015 and February 24, 2016 and the adoption of precautionary measures by the State Party's courts on April 22 and 29, 2015 and January 6, 2016, without obtaining a response.
In his communication, the author noted that, despite all his complaints, the State Party did not adopt any measures to comply with the decision and did not respond to his requests to guarantee his participation, through videoconferences, in the judicial proceedings carried out in the State Party.
In its observations of September 4, 2018, the State Party maintained that the communication was inadmissible ratione temporis, in accordance with article 7, paragraph (g), of the CRC OP3, since the alleged events occurred before the entry into force of the CRC OP3 for the State Party. At the same time, the State also held that, in accordance with article 7, paragraph (e), of the CRC OP3, the communication was inadmissible due the failure to exhaust domestic remedies. In particular, it indicated that the author did not submit his complaint before to the Supreme Court of Justice, so that it could decide on the merits, according to the provisions of the Code for Children and Adolescents.
In his comments of January 18, 2019, the author indicated that the State Party ignored all the evidence that prove - to date - the difficulty of communication between the author and his daughter. Additionally, the author highlighted that, despite the new legal reforms in place, the judicial branch in the State Party remained incapable of executing all the decisions and agreements on visit and contact between the father and daughter. As for his alleged failure to exhaust the relevant remedies before the Supreme Court, the author indicated the legal impossibility to appeal before this court, as suggested by the State.
The CRC Committee found that violations of the CRC continued after the entry into force of the CRC OP3 in the State party, as the author continued to encounter obstacles in communicating and maintaining a relationship with his daughter after 20 April 2017. Therefore, the CRC Committee considered that, in the particular circumstances of the case, the violations alleged by the author continued after the entry into force of the CRC OP3. Accordingly, the CRC Committee concluded that article 7 (g) of the CRC OP3 did not preclude consideration of the communication ratione temporis. As for the exhaustion of local remedies (Art. 7 (e) of the CRC OP3), the CRC Committee accepted the author's allegations that it was not possible in his case to access the Supreme Court of Justice because the State Party's legislation does not provide that “an incident” may be appealed before that judicial body. Accordingly, the CRC Committee concluded that, for purposes of admissibility, the author had sufficiently substantiated his claims based on articles 3, 4 and 5, 9, paragraph 3, and 10, paragraph 2, of the CRC, in relation to the fact of that the State Party has not taken into account the best interests of the child and has not implemented the judicial decision establishing the right to visit and guaranteeing the author's daughter's right to maintain personal and direct contact with her father.
The CRC Committee considered that the author's claims based on articles 18 and 19 of the CRC had not been sufficiently substantiated for purposes of admissibility and considered them inadmissible under article 7, paragraph f), of the CRC OP3.
The CRC Committee recalled that, as a general rule, it is the competence of the national authorities to interpret and apply national law, unless such examination is clearly arbitrary or amounts to a denial of justice. The role of the CRC Committee is to verify the absence of arbitrariness or denial of justice in the authorities' assessment and to ensure that the best interests of the child were a primary consideration in that assessment.
Based on the before mentioned prerogative, the CRC Committee established that the State Party did not take the necessary measures to guarantee compliance with final judgment No. 139, of April 30, 2015, establishing the provisions related to visits and other forms of contact, and that this decision has had continuous effects after April 20, 2017, the date of entry into force of the CRC OP3 in the State Party. The author has had to file complaints about delays in judicial proceedings and despite the report of the social worker, the State Party authorities had not taken any of the measures provided for in its legislation to guarantee compliance with final judgment. Based on these proven facts, the CRC Committee considered that the judicial procedures that determine the visitation rights between a child and parent from whom the child was separated required an expedited procedure, since the passage of time can have irreparable consequences in the relations between them. This includes the prompt execution of decisions resulting from those procedures. In the present case, the CRC Committee took note of the author's argument, which was not contested by the State Party that, despite its numerous attempts to ensure compliance with the visitation regime established by the court's decision of April 30, 2015 - no response was received.
The CRC Committee was convinced that the decision on the contact and visitation regime had not been implemented and that the author was unable to maintain regular and effective contact with his daughter over the years. In this regard, the CRC Committee took note of the mother's observations on the social worker included in interlocutory order no. 60, of April 25, 2017, according to which she did not have the resources for an internet connection and that it was the girl who, not having spent much time with her father, did not want to travel with him during the holidays. At the time the court issued its decision it was determined that the girl's best interest was to have contact with her father. If that court order had been effectively enforced, the problem of the girl's gradual alienation from her father could have been avoided. In light of this, the CRC Committee considered that the authorities failed to take sufficient measures in a timely manner to ensure that the mother complied with the court's decision. In light of the foregoing, the CRC Committee considered that the lack of effective measures taken by the State Party to guarantee the author's daughter's right to maintain personal relations and direct contact with her father on a regular basis, deprived the girl of the enjoyment of her rights under the CRC.
The CRC Committee concluded that this amounted to a violation of articles 3, 9, paragraph 3, and 10, paragraph 2, of the Convention. Accordingly, it determined the State Party should provide the author's daughter with effective reparation for the violations suffered, in particular by taking effective measures to ensure the implementation of final judgment No. 139, of April 30, 2015, establishing the visitation regime, including through counselling and other appropriate and proactive support services to try to rebuild the relationship between the girl and her father, having duly taken into account an assessment of her best interests at the present time. The CRC Committee also established that the State Party was also under an obligation to prevent similar violations in the future by adopting all the necessary measures to guarantee the immediate and effective execution of judicial decisions in a child-friendly manner, training judges, members of the National Secretariat for Children and Adolescents and other competent professionals on the right of the child to maintain personal relationships and direct contact with both parents on a regular basis and, in particular, on the General Comment no. 14 of the CRC Committee.
Having determined that there had been a violation of articles 3, 9, paragraph 3, and 10, paragraph 2, of the CRC, the CRC Committee did not consider it necessary to examine whether the same facts constituted a separate violation of articles 4 and 5 of Convention.
This is the first case decided under the CRC OP3 that provides an opinion on the right of children to maintain personal relations and direct contact with their parents, in a private family law setting. As such, it is an important contribution to the consolidation of a sustained process in contemporary comparative constitutional and human rights law that has brought together family law, fundamental rights and the best interest of the child.1 In doing so, the decision sends a strong message on the specific obligations of States Parties derived from a child-friendly justice approach to Private Family Law, which demand concrete measures for the determination of the best interest of the child, including his/her right to be heard and taken into consideration, as well as his/her right to have contact with both parents. This is particularly so when conflicting parents need to exercise their parental responsibilities towards children who are not in contact with one of them.
Accordingly, of particular importance is the CRC Committee´s assertion that, in private family law cases, children need to have access to an expedited procedure, since the passage of time can have irreparable consequences in the relations between parents and their children, particularly when they are separated. As the CRC Committee highlights, this proactive role of family proceedings shall be not only expedite/rapid, but also sufficient. That is, States Parties need to provide an efficient execution of judicial decisions or agreements between parents and in relation to personal relations and direct contact. When this is not the case, as this decision demonstrates, the right to family life of children might be severely affected and compromised. Relying on its previous interpretation on the best interest of the child (General Comment Nº 14 par. 70), the CRC Committee rightly holds that the protection of the family environment encompasses preserving the child's relationships in a broad sense, which is particularly important when the parents are separated and live in different places. Such rationale from the CRC Committee seems to be in line with well-established doctrine on the right to family life, particularly on the idea that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (even if the relationship between the parents has broken down), and that any domestic measures hindering such enjoyment amount to an interference with the right in question.2
While decisive in its contribution to the field of family law and child law, the decision raises questions in two specific areas.
On the one hand, the CRC Committee rightly asserts the importance of avoiding the negative consequences of a non-cooperative parent in allowing personal relations (custody/care) and direct contact (visitation) between the non-resident parent and his/her child. The facts of the case seem to give account of a non-resident parent that, despite of the trans-national character the relationship with his daughter, was willing to comply with his parental responsibilities. Despite of his responsible attitude and largely due to the mother´s uncooperative one, he was denied from fully exercising his parental roles, affecting the daughter´s right to maintain on a regular basis, personal relations and direct contacts with both parents.
However, the CRC Committee could have avoided the use of “alienation” in its decision.3 This so, due to the polemical status of the term in both psychology and family law practice, whether defined as “parental alienation syndrome” (PAS), “parental alienation” (PA) or “the alienated child” (AC)4In addition to concerns about the lack of scientific support for parental alienation concepts, several studies have highlighted the inappropriate application of parental alienation concepts in custody and access cases that involve domestic or family abuse/violence, including the potential misuse of parental alienation theory to discount parent and child safety issues or to deflect attention from empirically verified and legally mandated best interests of the child criteria.5
The CRC Committee was careful in not referring to alienation as a “syndrome”. Nonetheless, it is not clear in which other technical sense this expression is used: The alienated child? If so, how we should understand that expression and apply it? The facts in the case suggest a clear violation of daughter´s rights (Articles 3, 9, paragraph 3, and 10, paragraph 2), as a consequence of the mother´s uncooperative attitude and the lack of effective judicial protection by the Paraguayan courts. But the use of the term alienation only distracts the attention to this legal conclusion. In order to avoid such these debates, it might have been preferred not to use diagnostic labels in its decision. Instead, the CRC Committee could have made reference to the mother´s concrete behaviors and court´s attitudes towards the specific case. In doing so, the CRC Committee could have avoided future misinterpretations around parents' attitudes and decisions in highly complex and sensitive family law disputes (such as when child sexual abuse is raised).
On the other hand, while the CRC Committee strongly places the child at the center of its decision and calls the State Party to implement child-friendly measures in the future, it is not clear how it weighs and considers the views of the affected child.6 The CRC OP3 is clear in recognizing a paramount role for the views of the child as a general principle of its interpretation (Art. 2 CRC OP3 General principles guiding the functions of the Committee):
“In fulfilling the functions conferred on it by the present Protocol, the Committee shall be guided by the principle of the best interests of the child. It shall also have regard for the rights and views of the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
While the CRC Committee tangentially refers to the opinion of the child - as expressed through her mother in the domestic proceedings - her views are not presented in any form throughout the communication procedure. This is particularly problematic, considering that in the present case, the CRC Committee requested the State Party to undertake effective measures to ensure the implementation of final judgment No. 139, of April 30, 2015, establishing the visitation regime, including through counselling and other appropriate and proactive support services to try to rebuild the relationship between the girl and her father. Even if that task might not be easy to fulfil, it seems particularly important that the CRC Committee deepens its efforts in assuring that in any communication brought to its attention, there are ways in which children´s views and opinions are duly taken into account. As the historical practice of family law proceedings sadly demonstrates, family disputes around and about parental rights and responsibilities have systematically excluded the views and opinions of children, with just some emerging good practices.7 For that reason, any decision by the Committee on the Rights of the Child
should send a strong message to State Parties that the opinion of children shall be always dully honored and respected in decision-making processes.
- Choudry, S. & Herring, J. (Eds.), The Cambridge Companion to Comparative Family Law, Cambridge University Press, Cambridge, UK, 2019.
- Neilson, Linda C, Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights? (Fredericton: Muriel McQueen Fergusson Centre for Family Violence Research and Vancouver: The FREDA Centre for Research on Violence Against Women and Children, 2018.
- Espejo Yaksic, N. & Lathrop Gómez, F. Eds., La Responsabilidad Parental, Thomson Reuters, Legal Publishing, Santiago de Chile, 2017.
- Guidelines of the Committee of Ministers of the Council of Europe
on child-friendly justie, adopted by the Committee of Ministers of the Council of Europe on 17 November 2010.
- Fortin, J., Children´s Rights and the Developing Law, Third Edition, Cambridge University Press, Cambridge, 2009.
- Espejo Yaksic, N. & Lathrop Gómez, F. (2019), "Towards the Constitutionalization of Family Law in Latin America", in Choudry, S. Herring, J. (eds.), The Cambridge Companion to Comparative Family Law, Cambridge, Cambridge University Press, 2019, pp. 128-157; Nejaime D., "The Family’s Constitution", Faculty Scholarship Series, 5226, Yale Law School, 2017; Gil Domínguez, A., Famá, M. V. & Herrera, M. Derecho constitucional de familia, (I), Buenos Aires, Ediar, 2006 and; Meyer, David D., “The constitutionalisation of Family Law”, in Family Law Quarterly, Vol. 42, No. 3, Golden Anniversary Issue (Fall 2008), pp. 529-572.
- Cfr., European Court of Human Rights (ECHR), Monory v. Romania and Hungary, § 70; Zorica Jovanović v. Serbia, § 68; Kutzner v. Germany, § 58; Elsholz v. Germany [GC], § 43; K. and T. v. Finland [GC], § 151).
- The Committee indicates that, if the court´s order (personal contact and visitation) between the author and his daughter would have been effectively enforced, the problem of the girl's gradual alienation from her father could have been avoided.
- .Cfr., Neilson, Linda C (2018) Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights?, (Fredericton: Muriel McQueen Fergusson Centre for Family Violence Research and Vancouver: The FREDA Centre for Research on Violence Against Women and Children) in: http://www.fredacentre.com/wp-content/uploads/2018/02/Parental-Alienation-Linda-Neilson.pdf; Deirdre C., (2011) 'Parental Alienation Critics and the Politics of Science', The American Journal of Family Therapy, 39: 1, 48 — 71 and; Kopetski, L. M. (2006). “Commentary: Parental alienation syndrome”, in R. A. Gardner, R. Sauber, & D. Lorandos (Eds.), The international handbook of parental alienation syndrome: Conceptual, clinical and legal considerations (pp. 378–390). Springfield, IL: Charles C. Thomas.
- Saunders, Daniel (2016) “The Need to Carefully Screen for Family Violence When Parental Alienation is Claimed” 46(6) Michigan Family Law Journal 7-11; Smith, Holly (2016) “Parental Alienation syndrome: Fact or Fiction? The Problem With Its Use in Child Custody Cases” in 11 Mass. L. Rev. 64; O'Sullivan, Chris, et al. (2011) Custody Evaluations Where There Are Allegations of Domestic Violence: Practices, beliefs, and Recommendations of Professional Evaluators, U.S. Department of Justice, in: https://www.ncjrs.gov/pdffiles1/nij/grants/234465.pdf and; National Council of Juvenile and Family Court Judges (2008), A Judicial Guide to Child Safety in Custody Cases (Reno, NV: NCJFCJ).
- On the concept and implications of child-friendly justice in general, see Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, adopted by the Committee of Ministers of the Council of Europe on 17 November 2010 and explanatory memorandum, in: https://rm.coe.int/16804b2cf3 and; Child-friendly justice, Perspectives and experiences of children involved in judicial proceedings as victims, witnesses or parties in nine EU Member States, European Union Agency for Fundamental Rights (FRA), 2017, in: https://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-child-friendly-justice-children-s-perspective_en.pdf
- Fernando, Michelle, “Family Law Proceedings and the Child's Right to be Heard in Australia, the United Kingdom, New Zealand, and Canada”, Family Court Review, Vol. 52, Nº1, January 2014, 46-59 and; Liefaard, Ton, “El derecho procesal familiar y los derechos de la infancia en Europa y los Países Bajos”, in Espejo Yaksic, N & Ibarra, Ana María, Eds., (2019), La Constitucionalización del Derecho de Familia. Perspectivas Comparadas, Suprema Corte de Justicia de México & Centro de Estudios Constitucionales de la SCJN, Ciudad de México, pp. 321-349, in: https://www.sitios.scjn.gob.mx/cec/sites/default/files/publication/documents/2020-01/Libro%20DERECHO%20DE%20FAMILIA_DIGITAL.pdf