Child custody communication inadmissible (M.K.D.A.-A. v. Denmark)

In 2005, K.D.A.-A. (a Filipino national) married M.A. (a Danish national).  M.A. began to abuse K.D.A.-A. shortly thereafter.  The couple left Denmark together in 2007 and lived in various countries, including the Philippines, where their son was born.  M.A. returned to Denmark in 2011 and applied for a 28-day family reunification visa for K.D.A.-A. 

K.D.A.-A. informed M.A. that she was reluctant to return to Denmark.  However, she returned to Denmark in May 2011, using the family reunification visa, for a two-week holiday with her son.  M.A. subsequently informed K.D.A.-A. that their son would not be returning to the Philippines with her and he also refused to allow K.D.A.-A. to see their son.  K.D.A.-A. contacted local police, but she was not provided any assistance because the couple had joint custody of their son. 

K.D.A.-A. filed a complaint, and applied for sole custody of her son, with the Regional State Administration.  The Regional State Administration ruled in June 2011 that it did not have jurisdiction over the matter “because the child was resident in the Philippines”.  It did, however, confirm that the child was on holiday in Denmark, even though K.D.A.-A. had entered Denmark using the reunification visa.  M.A. appealed unsuccessfully in July 2011 and again in August 2011.  The couple filed for divorce in July 2011, which was granted in September 2012.

K.D.A.-A. continued to be unable to see her son.  In August 2011, the Bailiff’s Court determined that it did not have jurisdiction to consider whether K.D.A.-A. could return to the Philippines with her son.  Around that time, K.D.A.-A. initiated child custody proceedings in the Philippines.

In September 2011, the Immigration Service informed K.D.A.-A. that it would not extend her visa and she would have to leave Denmark within a month.  She later left the country for two months and returned in November 2011.  

In July 2012, the District Court of Naestved determined that it was in the child’s best interests to live with K.D.A.-A. in the Philippines.  M.A. appealed against the decision and refused K.D.A.-A. access to their son.  In August 2012, the Eastern High Court remitted the case to the City Court of Naestved to decide on the competence of the Danish courts to hear the case.  M.A. limited K.D.A.-A.’s access to their son during this time. 

In September 2012, K.D.A.-A. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) on behalf of herself and her son.  She claimed that Denmark had violated articles 1, 2(d), 5 and 16(d) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  K.D.A.-A. claimed that the State Party had failed to provide effective remedies and protection for her and her son and supported the ongoing practice of “ignoring violent abductions and crimes committed by ethnic Danish men against foreign women and children.”  In addition, K.D.A.-A. noted that many foreign women living in Denmark faced similar obstacles in respect of child custody rights.

[NB: In October 2012, after K.D.A.-A. submitted her communication to the CEDAW Committee, the District Court of Naestved upheld K.D.A.-A.’s claim that her son was to take up domicile with her in the Philippines.  In January 2013, the Eastern High Court upheld the District Court’s judgment on the basis that it was in the son’s best interests to take up domicile with K.D.A.-A.]

State Party’s observations on admissibility

The State Party challenged the admissibility of the communication on several grounds.

Absence of legal standing (art. 2)

The State Party claimed that the communication should be declared inadmissible because the author and her son lacked legal standing under article 2 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).  It claimed that the son could not claim to be a victim under CEDAW because he was male.  It further claimed that K.D.A.-A. and her son could no longer claim to be victims given the January 2013 decision of the Eastern High Court upholding the decision to allow the child to take up domicile with K.D.A.-A. in the Philippines.

Failure to exhaust domestic remedies (art. 4(1))

The State Party also claimed that the communication should be declared inadmissible under article 4(1) of the Optional Protocol due to the failure of K.D.A.-A. to exhaust domestic remedies related to gender-based discrimination.  It asserted that “no allegation concerning gender-based discrimination against her or her son was ever made by her before the State authorities.  Accordingly, the domestic authorities have yet had no opportunity to assess such allegations.”  It further asserted that other domestic proceedings were ongoing at the time K.D.A.-A. submitted her communication to the CEDAW Committee.   

Same matter already examined by another international procedure (art. 4(2)(a))

The State Party claimed that the communication should be declared inadmissible under article 4(2)(a) of the Optional Protocol because K.D.A.-A. had registered the same complaint with the European Court of Human Rights.

Failure to substantiate claim (art. 4(2)(c))

The State Party further claimed that the communication should be declared inadmissible under article 4(2)(c) of the Optional Protocol, as K.D.A.-A. had failed to substantiate why or how it had violated her and her son’s rights under CEDAW.  It asserted that K.D.A.-A. had “completely failed to indicate or specify how particular decisions, acts or omissions by the State party’s authorities [had] allegedly entailed a violation of rights under the Convention.”  It also claimed that K.D.A.-A. had failed to support her claims with any evidence or documentation.  

Abuse of the right to submit a communication (art. 4(2)(d))

Lastly, the State Party claimed that the communication should be declared inadmissible under article 4(2)(d) of the Optional Protocol because it constituted an abuse of the right to submit a communication.  In this connection, it pointed to the alleged failure of K.D.A.-A. to satisfy the aforementioned admissibility criteria.      

CEDAW Committee’s decision on admissibility

The CEDAW Committee determined that K.D.A.-A. and her son lacked legal standing and subsequently declared the communication inadmissible under article 2 of the Optional Protocol. 

It explained that K.D.A.-A. and her son ceased to be victims within the meaning of article 2 of the Optional Protocol following the January 2013 decision of the Eastern High Court upholding the decision to allow the child to take up domicile with K.D.A.-A. in the Philippines (“if indeed,” it explained, “they were victims of discrimination until that judgement”). 

The CEDAW Committee also determined that the K.D.A.-A. lacked standing to bring a communication on behalf of “other foreign women married to Danish nationals.”  In doing so, it affirmed that the Optional Protocol excludes any actio popularis and explained that it therefore could not continue to consider the communication for the sake of “other foreign women married to Danish nationals.”  It further affirmed that article 2 of the Optional Protocol excludes communications on behalf of groups of individuals without their prior consent, unless the absence of consent can be justified and noted that K.D.A.-A.  had failed to address the question of consent of the “other foreign women married to Danish nationals”.

The Committee did not make any determinations in respect of the other grounds of inadmissibility raised by the State Party. 

Communication No. 44/2012, UN Doc. CEDAW/C/56/D/44/2012 (28 October 2013)

Decision

 

  

 

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