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NEULINGER AND SHURUK v. SWITZERLAND - 41615/07 [2010] ECHR 1053 (6 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1053.html
Cite as:
[2010] ECHR 1053,
[2011] 1 FLR 122,
(2010) 28 BHRC 706,
[2011] 2 FCR 110,
[2010] Fam Law 1273,
54 EHRR 31,
(2012) 54 EHRR 31,
[2010] Fam Law 12,
28 BHRC 706
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GRAND
CHAMBER
CASE OF
NEULINGER AND SHURUK v. SWITZERLAND
(Application
no. 41615/07)
JUDGMENT
STRASBOURG
6 July
2010
This
judgment is final but may be subject to editorial revision.
In the case of Neulinger and Shuruk v. Switzerland,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul
Costa,
President,
Nicolas
Bratza,
Peer
Lorenzen,
Françoise
Tulkens,
Josep
Casadevall,
Ireneu
Cabral Barreto,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Elisabet
Fura,
Egbert
Myjer,
Danutė
Jočienė,
Isabelle
Berro-Lefèvre,
Päivi
Hirvelä,
Giorgio
Malinverni,
András
Sajó,
Nona
Tsotsoria,
Zdravka
Kalaydjieva,
judges,
and
Vincent Berger, Jurisconsult,
Having
deliberated in private on 7 October 2009 and on 2 June 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 41615/07) against the Swiss
Confederation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Swiss nationals, Ms
Isabelle Neulinger and her son Noam Shuruk (“the applicants”),
on 26 September 2007. The first applicant also has Belgian
nationality and the second applicant also has Israeli nationality.
The
applicants were represented by Mr A. Lestourneaud, a lawyer
practising in Thonon-les-Bains (France). The Swiss Government (“the
Government”) were represented by their Agent, Mr F. Schürmann,
of the Federal Office of Justice.
The
applicants alleged in particular that by ordering the return of Noam
Shuruk to Israel, the Federal Court had breached their right to
respect for their family life as guaranteed by Article 8, taken
separately and in conjunction with Articles 3 and 9 of the
Convention. They also claimed that there had been a violation of
Article 6, alleging that the Federal Court had adopted an excessively
restrictive interpretation of the exceptions to the Swiss
authorities’ obligation to order the second applicant’s
return and in doing so had failed to take account of his best
interests.
The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
On
27 September 2007 the President of the Chamber decided to indicate to
the Government, under Rule 39, that it was desirable, in the interest
of the parties and for the proper conduct of the proceedings before
the Court, not to enforce the return of Noam Shuruk.
On
22 November 2007 the Court decided to give notice to the Government
of the part of the application concerning the complaint under Article
8. It further decided that the admissibility and merits of the case
would be examined at the same time (Article 29 § 3 of the
Convention). It also decided to give the application priority under
Rule 41.
7 The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other’s observations.
Written
comments were received from Mr Shai Shuruk, the second applicant’s
father, who had been granted leave under Rule 44 § 2 to
intervene as a third party.
9. On
8 January 2009 a Chamber composed of Christos Rozakis, President,
Anatoly Kovler, Elisabeth Steiner, Dean Spielmann, Sverre Erik
Jebens, Giorgio Malinverni and George Nicolaou, judges, and Søren
Nielsen, Section Registrar, delivered a judgment. Unanimously, it
declared the complaint under Article 8 of the Convention
admissible and the remainder of the application inadmissible. By four
votes to three it found that there had been no violation of Article
8. The separate dissenting opinions of Anatoly Kovler, Elisabeth
Steiner and Dean Spielmann were appended to the judgment.
10. On
31 March 2009 the applicants requested that the case be referred to
the Grand Chamber under Article 43 of the Convention and Rule 73. The
panel of the Grand Chamber granted the request on 5 June 2009.
It moreover confirmed the application of the interim measures that
had been indicated under Rule 39.
11. The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24.
The
applicants and the Government each filed written observations on the
merits.
Observations
were also received from Mr Shuruk. However, as they did not comply
with the conditions laid down in Rule 44 §§ 2 and 4 of the
Rules of Court, in conjunction with Article 36 § 2 of the
Convention, they were not added to the case file.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 7 October 2009 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr F. Schürmann,
Head of European law and international human
rights section,
Federal Office of Justice, Agent,
Mr D. Urwyler, acting
head of private international law section,
Federal Office of
Justice, Counsel,
Mrs C. Ehrich, technical adviser,
European law and international
human rights section, Federal
Office of Justice, Adviser;
(b) for the applicants
Mr A.
Lestourneaud, lawyer,
Mrs P. Lestourneaud, lawyer,
Mr M.-E.
Favre,
Mr Y. Zander, Counsel
Ms M.
Marquez-Lestourneaud, Adviser.
The
first applicant was also present.
The
Court heard addresses by Mr Lestourneaud, Mrs Lestourneaud, Mr Favre,
Mr Zander and Mr Schürmann. It also heard the replies of the
parties’ representatives to questions from judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1959 and 2003 respectively and live in
Lausanne (Canton of Vaud).
The
facts as submitted by the parties may be summarised as follows.
The
first applicant, who refers to herself as Jewish, decided to settle
in Israel in 1999. There she met an Israeli national, who is also
Jewish, and they were married on 23 October 2001 in Israel. They had
a son, Noam, who was born in Tel Aviv on 10 June 2003. He has Israeli
and Swiss nationality.
According
to the applicants, in the autumn of 2003 the child’s father
joined the Jewish “Lubavitch” movement, which they have
described as an ultra-orthodox, radical movement that is known for
its zealous proselytising.
Marital
difficulties then arose, and the first applicant, fearing that her
husband would take their son to a “Chabad-Lubavitch”
community abroad for religious indoctrination, applied to the Tel
Aviv Family Court for a ne exeat order to prevent Noam’s
removal from Israel. On 20 June 2004 the court made a ne exeat
order that was to expire when the child attained his majority, that
is to say on 10 June 2021, unless annulled by the court in the
meantime.
In
an interim decision of 27 June 2004, the same court granted
“temporary custody” of the child to the mother and
requested the Tel Aviv social services to draw up an urgent welfare
report. The “guardianship” of the child was to be
exercised jointly by both parents.
In
a decision of 17 November 2004, the court, on the recommendation of a
social worker, confirmed the first applicant’s custody of the
child and granted a right of “visitation” to the father.
On
10 January 2005 the Israeli social services were obliged to
intervene. They instructed the parents to live apart, in the interest
of the child. The letter they sent to the parents read as follows:
“1. We take the view that to maintain a common
home and live, as you have been doing, under the same roof is not in
the child’s interest – and that is an understatement. It
appears to us that the environment of constant recrimination and
invective created by Shai against Isabelle has caused her permanent
stress that may prevent her from fulfilling her role as a mother,
when she is already faced with the need to find a job in order to
support herself and pay the rent. It should be noted that Shai pays
neither the maintenance ordered by the court nor the rent.
We felt that some of Shai’s recriminations verged
on the absurd. He has decided that the child’s illness, like
the glandular fever and the epileptic fit that the child has
suffered, are the mother’s fault. Shai persists in asserting
that Isabelle ‘is not a good mother’; he does not accept
the fact that the child attends nursery school, and claims that the
medical certificates are insufficient. We advise Shai to speak to the
doctors who are treating the child.
Although he is maintained by Isabelle, Shai demands that
the food complies to a very strict degree with Jewish dietary laws,
observing one dietary rule or another ...
There is no doubt that living apart will resolve some of
these problems.
We find that Shai creates a hostile environment at home
- an atmosphere of verbal aggression and threats that terrorise the
mother.
In the light of the foregoing, we cannot but find that
the mother is exposed to mental harassment and that the maintaining
of a common home is harmful to the child.
2. Under the powers conferred on us by sections 19 and
68 of the Law on Legal Capacity, we reiterate our warning to Shai,
calling on him not to take his child with him to engage in religious
proselytising on the public highway, where he encourages passers-by
to put on phylacteries and collects donations.
Likewise, the father is requested not to take the child
with him to the synagogue for a whole day at a time.
We emphasise that the provisions on access in respect of
the child are intended to bring father and child together for their
common activities, and not for other purposes.”
That
same day, the first applicant filed a complaint with the police
accusing her husband of assault.
In
an injunction of 12 January 2005 the competent judge of the Tel Aviv
Family Court, upon an urgent application lodged earlier that day by
the first applicant, prohibited the father from entering the child’s
nursery school or the first applicant’s flat, from disturbing
or harassing her in any manner whatsoever, and from carrying or
possessing a weapon. Restrictions were also imposed on the access
right granted to the father, who was now authorised to see the child
only twice a week under the supervision of the social services at a
contact centre in Tel Aviv.
The
couple’s divorce was pronounced on 10 February 2005 with no
change in the attribution of guardianship.
As
the father had defaulted on his maintenance payments to the first
applicant, an arrest warrant was issued against him on 20 March 2005.
In
a decision of 27 March 2005 a judge of the Tel Aviv Family Court
dismissed an application lodged by the first applicant for the
annulment of the ne exeat order prohibiting the removal of the
second applicant from Israel. The judge found, in particular, that
there was a serious risk that the mother would not return to Israel
with the child after visiting her family abroad, in view of the fact
that she had no ties in that country.
On
24 June 2005 the first applicant secretly left Israel for Switzerland
with her son.
On
27 June 2005 Noam’s father contacted the Israeli Central
Authority, which was unable to locate the child until 21 May
2006, when Interpol Jerusalem forwarded him a note from Interpol
Berne indicating that the first applicant was in Switzerland.
On
22 May 2006 the Israeli Ministry of Justice transmitted to the Swiss
Federal Office of Justice an application for the return of the child
pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction of 25 October 1980 (the “Hague
Convention”; see paragraph 57 below). In support of its
application it indicated, among other things, that Interpol Berne had
notified it only the day before that Noam and his mother were living
in Lausanne and that the latter had applied for the renewal of her
Swiss passport.
In
a decision of 30 May 2006, delivered upon an application by the
child’s father, the Tel Aviv Family Court observed that the
child was habitually resident in Tel Aviv and that, as of 24 June
2005, the date of the applicants’ departure, the parents had
been joint guardians of their son, with the mother having temporary
custody and the father a right of access. The court held that the
child’s removal from Israel without the father’s consent
had been wrongful within the meaning of Article 3 of the Hague
Convention.
On
8 June 2006 the child’s father lodged an application with the
Lausanne District Justice of the Peace seeking an order for his son’s
return to Israel. He requested in particular, as an extremely urgent
measure, that the Lausanne Passport Office be ordered to retain the
applicants’ Swiss passports.
On
12 June 2006 the Justice of the Peace made an order allowing the
application by Noam’s father for an extremely urgent measure.
Following
a new application for an extremely urgent measure, faxed by the
child’s father on 27 June 2006, the Justice of the Peace, in a
provisional-measures order made that same day, ordered the first
applicant to deposit her passport and that of Noam immediately with
the registry of the Justice of the Peace Court, on pain of criminal
sanctions for refusal to comply with the decision of an authority.
The
first applicant, assisted by counsel, and the legal representative of
the father, whose obligation to appear in person had been waived,
made representations to the Justice of the Peace on 18 July 2006.
In
a decision of 29 August 2006, after a hearing, the father’s
application was dismissed by the Lausanne District Justice of the
Peace. The court took the view that, whilst the child’s removal
had been wrongful within the meaning of Article 3 of the Hague
Convention, it had to apply Article 13, sub-paragraph (b), of that
convention, as there was a grave risk that the child’s return
would expose him to physical or psychological harm or otherwise place
him in an intolerable situation.
On
25 September 2006 the father appealed against that decision before
the Guardianship Division (chambre des tutelles) of the Vaud
Cantonal Court, which ordered an expert’s report and for that
purpose appointed Dr. B., a paediatrician and child
psychiatrist. In his report, delivered on 16 April 2007, he stated
that the child’s return to Israel with his mother would expose
him to a risk of psychological harm whose intensity could not be
assessed without ascertaining the conditions of that return, in
particular the conditions awaiting the mother and their potential
repercussions for the child; that the return of the child without his
mother would expose him to a risk of major psychological harm; and
that the maintaining of the status quo would also represent for the
child a risk of major psychological harm in the long term.
On
30 November 2006 the competent court in Tel Aviv cancelled an
indictment for domestic violence that the second wife of Noam’s
father had initiated, as she had left the country.
In
a letter of 12 March 2007, in connection with the proceedings to
secure the child’s return, the Israeli Central Authority made
the following observations to its Swiss counterpart:
“We acknowledge receipt of your letter dated 7
February, 2007. We wish to respond to the questions raised in that
letter as follows:
Mr Shuruk states that in the event that the mother
refuses to return to Israel, he will take care of the child. He
currently lives in an apartment with a roommate, however if the child
is returned to Israel, he states that he will immediately secure an
apartment to live in with the child. He is currently working and
studying at an institution for religious learning, from 9:00 AM to
3:00 PM. The child would be in daycare/nursery school during those
hours. Mr. Shuruk points out that prior to the child’s
abduction to Switzerland, he was in daycare as the mother worked. Mr.
Shuruk advises that his extended family would provide a back-up
system for him in the event that he would need assistance from time
to time.
The Appeal Court in Switzerland has raised a concern as
to how Mr. Shuruk can care for the child when his right of access has
been restricted. As we stated in our letter to your office dated 28
September 2006, it must be remembered that according to the report of
the social worker in Israel, the father and child had a wonderful
relationship. There were plans to expand the visitation, to include
overnight visits, however these plans were interrupted as a result of
the mother’s abduction of the child. If the mother were to
refuse to return to Israel with the child, she would in effect be
agreeing to the father having de facto custody, and Mr. Shuruk could
apply to the Israeli court to grant an order reflecting the new
reality.
You further asked what steps could be taken to protect
the mother should she return, given her allegations of violence on
the part of Mr. Shuruk. Mr. Shuruk denies all such allegation.
Furthermore, we are attaching a copy of the Decision of the Tel Aviv
Magistrate’s Court dated 30 November, 2006 together with a
translation into English. This decision concerned an indictment filed
against Mr. Shuruk for allegations of assault by his second wife. As
you can see, the complainant apparently left Israel and could not be
located, therefore the court canceled the indictment against Mr.
Shuruk.
In any event, we wish to draw your attention to the law
in Israel that provides protection in cases of allegations of family
violence. That law is The Prevention of Family Violence Law 1991. We
are attaching a translation of that law into English, and an
unofficial translation into French. Section 2 provides for protection
orders that can be made. Therefore, if the mother has any concerns
for her safety, she can apply to the court in Israel and request any
necessary protection. Her allegations should not constitute a basis
for the Swiss court to refuse to return the child to Israel.
You informed us that the court ordered a psychological
evaluation of the child. We must express our concern in this respect.
Such evaluation was not ordered by the lower court, and we wish to
inquire as to why it has been ordered at this late stage. It must be
remembered that the child was abducted by the mother in June 2005.
The child has not seen his father in almost two years. During
this period he has been subject to the sole influence of the mother.
We therefore question what can be gained by a psychological
evaluation of the child. It must be remembered that this is a
Hague Convention proceeding, and not a custody case. It seems
that the mother is trying to prove that the child will be
psychologically damaged by being separated from her if he is returned
to Israel. However this can be avoided if the mother will act in the
child’s best interests and return with him. As we stated in our
letter of 28 September, 2006, the mother does not appear to have any
justifiable reason under the Hague Convention to prevent her return.”
In
a letter of 30 April 2007 to the lawyer acting for Noam’s
father, the Israeli Central Authority made the following observations
on the question whether the first applicant would be prosecuted or
imprisoned if she returned to Israel:
“You have requested that we inform you as to the
legal consequences that would face the mother, Isabelle Neulinger,
should she return to Israel with the child, as a result of the act of
abduction of the child.
In terms of criminal consequences for the act of
abduction, abduction is an offence under Israel’s Penal Law
1977 and carries a possible penalty of imprisonment. However,
according to the guidelines of the State Attorney of Israel, upon
receipt of a criminal complaint of parental abduction, the police are
to forward the matter to the Central Authority under the Hague
Convention for guidelines as to how to proceed in the matter. The
State Attorney’s guidelines provide that criminal proceedings
should be commenced only in very exceptional circumstances. In
Ms. Neulinger’s case, should she comply with an order to return
the child to Israel, not disappear with the child upon her arrival to
Israel, cooperate with the Israeli authorities and comply with the
existing court order for supervised visitation by Mr. Shuruk (pending
any further decision), the Central Authority for Israel would
positively consider instructing the Israel Police to close the
criminal file for lack of public interest, provided that Ms Neulinger
not commit further acts of abjection with respect to the child.
In terms of civil consequences, we can inform you that
the sole consideration in both the Israeli civil courts and
Rabbinical courts, when deciding matters such as custody and access,
is the best interests of the child.”
In
a judgment of 22 May 2007 the Guardianship Division of the Vaud
Cantonal Court dismissed the father’s appeal. Having carried
out an additional investigation, and taking into account the expert’s
report by Dr B. of 16 April 2007, it took the view that the
child’s return carried a grave risk of psychological harm,
whether or not he was accompanied by his mother, and would also place
him in an intolerable situation. It therefore considered that the
conditions of Article 13, sub-paragraph (b), of the Hague Convention
were met. Finding, however, that the child could not be deprived of
all relations with his father, it prescribed measures with a view to
rebuilding the personal relationship between them. Its judgment read
as follows:
“4 (d) ... In response to the questions put to
him, expert B. ... states in his conclusions that Noam’s return
to Israel with his mother would expose him to psychological
harm, the intensity of which cannot be assessed without knowledge of
the conditions of such return, in particular those awaiting his
mother and the repercussions which they might have on the child; as
regards the child’s return to Israel without his mother,
[the expert] is of the opinion that it would expose him to major
psychological harm, as described in detail in the report. In the
‘discussion’ part of his report the expert emphasises
that Noam’s situation seems at present to be completely
blocked. On the one hand, given his young age and his complete lack
of recollection of his first years in Israel, including of his
father, any visit to that country without his mother, even a brief
visit, and even if the legal situation allowed it, would be
psychologically highly traumatic, involving extreme
separation-related anxiety and a major risk of severe depression. On
the other hand, the possibility of the mother’s return to
Israel with Noam, even for a short period, is totally out of the
question for the mother. In answer to the question whether Noam’s
return to Israel might place the child in an intolerable situation,
the expert replied that it was ‘clearly’ the conditions
of the child’s possible return to Israel that would or would
not render the situation intolerable. He observed that, likewise, it
was the conditions of his continuing residence in Switzerland that
would or would not render his situation there intolerable and that
the maintaining of the status quo represented a long-term major
psychological risk for the child, with the result that, if there were
no understanding between his parents, an agreement would urgently be
required between the child protection services of the States of the
parents’ residence in order to make up for their failure to
act.
In accordance with Article 13, third paragraph, of the
Hague Convention, this court also requested the Israeli Central
Authority to provide information about the child’s social
background, by answering the following questions: ‘in the event
that, as she has stated, the mother does not return to Israel, who
will take care of the child and where will he stay? As the father
does not appear to be in gainful employment, who will provide for the
child’s upkeep? As the right of access has been restricted by
judicial decisions, what measures will be taken to ensure that the
exercise of the right of access does not harm the child’s
physical and psychological welfare?’ In its letter of 12 March
2007 the Israeli Central Authority did not really answer the
questions put to it, so it is impossible to be satisfied about the
interests of the child. The Central Authority merely mentioned the
appellant’s intentions concerning his son if his son should
return to Israel without his mother, in the following terms: ‘[I]n
the event that Noam’s mother refuses to return to Israel, the
father will take care of the child. He currently lives in an
apartment with a roommate; however if the child is returned to
Israel, he states that he will immediately secure an apartment to
live in with the child. He is currently working and studying at an
institution for religious learning, from 9 am to 3 pm. The child
would be in daycare/nursery school during those hours. Mr Shuruk
points out that prior to the child’s abduction to Switzerland,
he was in daycare as the mother worked. Mr Shuruk advises that his
extended family would provide a back-up system for him in the event
that he needs assistance from time to time.’ As to the issue of
how Shay Shuruk would be able to take care of the child, given that
he has only a restricted right of access, the Israeli Central
Authority emphasised: ‘As we stated in our findings of 28
September 2006, according to the report of the social worker in
Israel, the father and child had a wonderful relationship. There were
plans to expand the visitation, to include overnight visits; however
these plans were interrupted as a result of the mother’s
abduction of the child.’ The Israeli Central Authority
concluded that ‘[i]f the mother were to refuse to return to
Israel with the child, she would in effect be agreeing to the father
having de facto custody, and Mr Shuruk could apply to the
Israeli court to grant an order reflecting the new reality’.
It should be noted that neither the conclusions of the
child psychiatrist’s report nor the information provided by the
Israeli Central Authority are conducive to Noam’s return to
Israel. Not only would such a return entail a grave risk of exposure
to psychological harm, whether or not he is accompanied by his
mother, it would also place him again in an intolerable situation.
First, the psychiatric expert observes that if the child returns to
Israel with his mother, he will risk being exposed to psychological
harm whose intensity cannot be assessed without knowledge of the
conditions of that return. In that connection, the Guardianship
Division is of the opinion that, since the child’s removal to
Israel, even if his mother accompanies him, may expose the child to
psychological harm and since, unlike the ‘classic scenario’
envisaged by the Hague Convention, the respondent has custody of her
son, she cannot reasonably be required to return to Israel. An
additional factor is that the mother’s return to Israel would
also undermine the child’s economic security, since the mother
would be required to find a job there, in order to provide not only
for her own needs but also for those of her son. The fact that the
appellant has never provided for his child’s upkeep and that he
is known to earn only 300 francs per month cannot be disregarded when
the interests of the child are taken into consideration in that
context. Lastly, it must be considered that the requirement of the
mother’s return is disproportionate to the reason for the
return: the object of the Hague Convention is to put the child back
into the legal situation in which he was before he was abducted.
However, the present return is requested in order to allow the
appellant to exercise his right to a personal relationship, a right
which is shown to have been exercised before the child’s
departure under the supervision of the social services in the form of
two weekly meetings of two hours each. To require a mother to uproot
herself in order to permit the exercise of such a restricted right of
access, when the child’s return certainly entails a risk of
grave psychological harm, in view of the conditions of insecurity in
which the return will take place, constitutes an intolerable
situation for the child within the meaning of Article 13,
sub-paragraph (b), of the Hague Convention.
As to Noam’s return to Israel without his mother,
the expert is of the opinion that it would be psychologically highly
traumatic, involving extreme separation anxiety and a major risk of
severe depression, which can be explained by his young age and his
total lack of recollection of his first years in Israel, including of
his father. That element is sufficient for a finding that the
condition laid down in Article 13, sub-paragraph (b), is satisfied.
In addition, the information provided by the Israeli Central
Authority about the arrangements envisaged in the event that the
child returns without his mother are, at the very least, a matter for
concern: although the appellant has, legally speaking, only a very
restricted right of access, under supervision, it is envisaged,
according to the information provided by the Central Authority, that
the appellant will take his son home (without any guarantee that he
will by then have an individual flat) and will thus have de facto
custody. In that connection, the Israeli Central Authority claims
that by refusing to return to Israel with her son, the respondent is
implicitly acquiescing in that change of situation – a new
reality of which the appellant will then seek validation by the
Israeli judicial authorities. That does not correspond to the aim
pursued by the Hague Convention, which provides for the immediate
return of the unlawfully removed child in order to put it back in the
status quo ante. Such a return cannot therefore be ordered on the
basis of the Hague Convention, and it is emphasised that there is no
doubt that Noam’s return to Israel in such circumstances would
definitely expose him to a risk of major psychological harm, owing
not only to the fact that he would be abruptly separated from his
mother, when she has been his principal parental reference since he
was born and has been the only one to provide for his upkeep, but
also to the fact that he will be just as abruptly faced with a father
of whose existence he has just learnt. In the light of the foregoing,
the appeal on this point must be dismissed. ...
5. ... In the present case, it is apparent from the file
that Noam Shuruk has lived with his mother, who has custody of him,
for at least one year in Lausanne. Thus, the Justice of the Peace of
the District of Lausanne had jurisdiction, ratione loci and
ratione materiae, to take the disputed protective measure. As
to the merits, it is sufficient to state that, since the child has no
recollection of his father, owing to the process of physiological
amnesia attributable to his very young age, there are valid grounds
for avoiding an abrupt reunion, as the welfare of the child requires
that the resumption of a personal relationship with his father should
take place calmly and gradually, after he has been properly prepared
for that new situation, as may be seen from the expert’s
convincing submissions on that point. The ground of appeal is
therefore ill-founded and must be rejected ...”
The
father lodged a civil appeal with the Federal Court seeking the
quashing of the Cantonal Court’s judgment and the return of the
child to Israel. He alleged that the court had misapplied Article 13,
sub-paragraph (b), of the Hague Convention, principally, and Article
3 of the Convention on the Rights of the Child, secondarily.
In
a decision of 27 June 2007, the President of the appropriate division
of the Federal Court granted the father’s request for immediate
suspension of the judgment.
In
a judgment of 16 August 2007, served on the first applicant’s
lawyer on 21 September 2007, the Federal Court allowed the
father’s appeal. The relevant passages of its judgment read as
follows:
“3. The object of the Hague Convention on the
Civil Aspects of International Child Abduction is to secure the
prompt return of children wrongfully removed to or retained in any
Contracting State (Article 1, sub-paragraph (a)). The removal or the
retention of a child is to be considered wrongful where it is in
breach of rights of custody attributed to a person, an institution or
any other body, either jointly or alone, under the law of the State
in which the child was habitually resident immediately before the
removal or retention (Article 3, sub-paragraph (a)). ‘Rights of
custody’ include rights relating to the care of the person of
the child and, in particular, the right to determine the child’s
place of residence (Article 5 (a)). In the present case it is not in
dispute that the child’s removal to Switzerland was wrongful,
since the father retained, jointly with the respondent, the right of
‘guardianship’, which under Israeli law includes the
right to decide on the child’s residence. Moreover, since the
application for return was presented within a period of one year
after the removal, the respondent cannot deny either that, in
principle, pursuant to Article 12 of the Hague Convention, the
child’s prompt return should be ordered. The only matter in
dispute is therefore the question whether an exception to that return
may be applied under Article 13, sub-paragraph (b), of the Hague
Convention.
4. According to the appellant, by refusing to order the
child’s return to Israel, the Cantonal Court misapplied Article
13, sub-paragraph (b), of the Hague Convention.
4.1 Under Article 13, sub-paragraph (b), of the Hague
Convention, in respect of which the Federal Court is entitled to
examine matters of compliance freely (section 95(b) Federal Court
Act), the judicial authority of the requested State is not bound to
order the child’s return when the person opposing that return
establishes that there is a grave risk that his or her return would
expose the child to physical or psychological harm or otherwise place
the child in an intolerable situation.
The exceptions to return provided for under Article 13
of the Hague Convention must be interpreted restrictively; the parent
who has abducted the child cannot take advantage of his or her
unlawful conduct (Judgment 5P.71/2003 of 27 March 2003, recital 2.2,
in FamPra.ch 2003, p. 718). Only grave risks must be taken into
consideration, excluding any grounds relating to the parents’
child-raising capacities, as the purpose of the Hague Convention is
not to attribute parental authority (Federal Court Judgment 131 III
334, recital 5.3; 123 II 419, recital 2b, p. 425). An exception to
return under Article 13, sub-paragraph (b), of the Hague Convention,
is therefore not open to consideration unless the child’s
intellectual, physical, moral or social development is under serious
threat (Judgment 5P.65/2002 of 11 April 2002, recital 4c/bb, in
FamPra.ch 2002, p. 620 and the reference cited therein). The burden
of proof lies with the person who opposes the child’s return
(ibid., recital 4b, in FamPra.ch 2002, p. 620 and the reference cited
therein).
4.2 The Cantonal Court observed that the case concerned
a very young child in the custody of his mother, who had always
provided for him. The father, for his part, lived in a religious
community where he was fed, and from his activity as a sports and art
teacher he had a monthly income of only 300 [Swiss] francs. The
custody of the child had been withdrawn from him on account of the
atmosphere of fear that he had created at the family home. For the
same reason, the Israeli courts ordered him to live separately and
prohibited him from approaching the mother’s flat. Before the
child’s removal to Switzerland he had only had a restricted
right of visitation, limited to two hours twice a week, under the
supervision of the Israeli social services. Concerning the conditions
of a possible return of the child without his mother, according to
the information provided by the Israeli Ministry of Justice on 12
March 2007, the father, who now shares a flat with one other tenant
and still works in an institution for religious education, would be
prepared to take care of the child. Taking into account the laconic
and not very reassuring nature of this information, together with the
expert’s report by Dr ..., a psychiatrist, the Cantonal Court
considered that a return to Israel involved a risk of psychological
harm for the child and might place him in an intolerable situation,
whether or not he was accompanied by his mother. The court added
that, in view of the father’s low income, the return to Israel
of the respondent would also undermine the child’s economic
stability and the mother would have to find a job in order to provide
for them both.
In his appeal, the appellant does not criticise the
Cantonal Court’s finding that there was a grave risk that the
child would be exposed to psychological harm if he returned to Israel
without his mother. He is of the opinion, however, that such a risk
would not exist if the child’s mother accompanied him to
Israel, as could be reasonably expected of her. As regards that
latter hypothesis, the judgment of the Cantonal Court fails to
provide any evidence of such a grave risk of harm, or of any
intolerable situation for the child. The expert psychiatrist failed,
in particular, to address that question, simply explaining that the
risk could not be assessed without ascertaining the conditions of a
possible return. As to the appellant’s aggressive behaviour
towards the respondent, it does not appear from the Cantonal Court’s
judgment that the child would be threatened directly or indirectly as
a result of witnessing such violence against his mother. She stated
that the father had complied with the arrangements for his right of
visitation and that the visits had gone well. The social worker
appointed to supervise the right of visitation had described as
wonderful the father-son relationship as established just before the
child’s abduction by his mother. She has not claimed that the
appellant breached the judicial instructions which required him not
to approach her flat or to disturb and/or harass her. As to the
considerations relating to the father’s low income and his ties
with the ‘Lubavitch’ religious community, as they stand
they do not indicate a grave risk that the child would be exposed to
harm within the meaning of Article 13, sub-paragraph (b), of the
Hague Convention. Whilst such considerations may help to determine
which of the two parents offers the best child-raising capacities for
the purpose of deciding on the attribution of the right of custody –
a matter that is decided by the judicial authorities of the place of
habitual residence (Article 16 of the Hague Convention) – they
are not pertinent, however, for a decision about the return of a
child after a wrongful abduction (see recital 4.1 above).
As to the mother’s threat not to return to Israel,
the judgment of the Cantonal Court did not deal at all with the
reasons for her refusal, whereas it should have established the
existence of objective circumstances justifying that attitude. The
Cantonal Court judges quoted the expert psychiatrist who had referred
to the ‘judicial risks’ that would be entailed in the
event of a return to Israel, without any indication as to whether the
respondent actually faced a prison sentence as a result of the
abduction. Supposing that such a risk were proven, she could not be
expected to return to Israel with the child – and that would
accordingly rule out the return of [the child] in view of the major
psychological harm that would be caused to him by the separation from
his mother. She made no comment on that question in her reply to the
Federal Court; in particular, she has not claimed that immediate
imprisonment, or even any criminal sanction at all, would be imposed
on her. Neither has she argued that in the event of her return to
Israel it would be impossible or very difficult for her to integrate,
or, in particular, to find a new job. Consequently, it cannot be said
that the mother’s return, and therefore that of the child,
would be unbearable for economic reasons either. Therefore, as the
respondent has failed to establish the existence of reasons that
would objectively justify a refusal on her part to return to Israel,
it must be accepted that she could reasonably be expected to return
to that State of origin accompanied by the child. In these
circumstances, it is of no import that the information provided by
the Israeli Central Authority (see recital 4.2 above) on which the
Cantonal Court based, in particular, its justification of the
exception to the child’s return as provided for by Article 13,
sub-paragraph (b), of the Hague Convention, was deemed not very
reassuring, because that information was based only on the hypothesis
of the child’s return without his mother.
Accordingly, the Cantonal Court judges breached Article
13, sub-paragraph (b), of the Hague Convention in finding that they
were entitled to apply an exception to the child’s return to
the State of his habitual residence. The appeal must therefore be
allowed and the judgment of the court below quashed, without it being
necessary to examine the complaint concerning a violation of Article
3 of the Convention on the Rights of the Child. It is incumbent on
the respondent to secure the return of the child ... to Israel by the
end of September 2007. ...
The Federal Court therefore finds as follows:
1. The appeal is allowed and the judgment of the court
below is quashed.
2. The respondent is ordered to secure the return of the
child ... to Israel by the end of September 2007.
...”
On
20 August 2007 the child’s father, through counsel, lodged an
application with the Lausanne District Justice of the Peace, who was
responsible for the enforcement of the return decision, seeking the
appointment of an ad hoc administrator for the child who would
be entrusted with the organisation of his departure. On 1 October
2007 he withdrew that application after the Court had decided, on
27 September 2007, to indicate interim measures to the
Government.
Subsequently,
the applicants transmitted to the Court a medical certificate issued
on 23 February 2009 by Dr M.-A., a paediatrician in Lausanne, which
reads as follows:
“I, the undersigned, certify that I have seen the
child Noam Shuruk, born on 10 June 2003, on a number of occasions
since 7 October 2005.
On each occasion Noam has been accompanied by his
mother, with whom he has a very good relationship.
His behaviour is appropriate and his level of
psychomotor development and language are above average. He does not
appear to suffer from any psychological trauma or from any emotional
or educational deficiencies.
He is a confident boy, capable of forming good
relationships, in particular with adults.
He is in good physical health, with little trace of
intercurrent infections.
An abrupt return to Israel without his mother would
constitute a significant trauma and a serious psychological
disturbance for this child.”
In
a provisional-measures order of 29 June 2009 the President of the
Lausanne District Court, at the request of the first applicant,
decided that Noam should live at his mother’s address in
Lausanne, suspended the father’s right of access in respect of
his son and granted parental authority to the mother, so as to allow
her to renew the child’s identity papers. The decision was
based on the following grounds in particular:
“[I]t is noted that the respondent was summoned to
appear by court order served at his last known address in Israel.
The letter was returned marked ‘gone away’,
which can be translated as ‘parti sans laisser d’adresse’
(gone without leaving a forwarding address).
... It appears that the mother has custody of the child
while parental authority is still held jointly.
The father was apparently required to ‘exercise a
right of visitation’ under the supervision of the social
services ...
In the context of the proceedings, the respondent never
appeared at the hearings but was represented by counsel, who is
apparently no longer acting for his client ...
According to case-law, the wrongful removal of a minor
does not in itself preclude the establishment of a new habitual
residence for the child in the country to which it has been taken
(see Federal Court Judgment 125 III 301, Journal des Tribunaux
1999 I 500).
In the present case, Noam has been living in Switzerland
continuously since June 2005.
He attends school there.
He has family ties there on his mother’s side.
He receives medical attention there.
He is also a national of Switzerland,
of which he speaks the language, in this case French.
Interim measures in favour of the applicant were decided
by the European Court of Human Rights, which requested the Swiss
Government not to return Noam to Israel in spite of the Federal
Court’s decision.
Despite his legal battle, the respondent has never
sought to see his child,
and his place of residence is unknown.
He appears to have lost interest in the present case.
Consequently, the child now has a stable relationship
only with his mother.
It is therefore appropriate to allow her application and
to decide provisionally that Noam should reside in Lausanne,
Switzerland, at the place of his habitual residence, with his mother.
Article 273 § 1 of the Civil Code provides that the
father or mother not having parental authority or custody and the
minor are reciprocally entitled to maintain such personal relations
as may be appropriate in the circumstances.
The right to personal relations is intended to preserve
the bond between parents and children ...
The maintaining and development of this bond is
obviously beneficial to the child.
Personal relations must accordingly be fostered, unless
the child’s welfare is endangered.
The scope of personal relations and the manner in which
they are carried on should be appropriate to the situation, in other
words taking fair account of the particular circumstances of the
case.
The child’s welfare is the most important
assessment criterion (see Federal Court Judgment 127 III 295, с
4a).
The entitled person’s situation and interests
should also be taken into consideration: his or her relationship with
the child, personality, place of abode, free time and environment.
Special conditions for the exercise of access rights may
be imposed ...
The applicant has requested the withdrawal of the
respondent’s access right in respect of their son Noam.
In the circumstances of the case, the respondent’s
access right was already limited by decisions given by the Israeli
authorities before the child’s departure for Switzerland.
The child has not seen his father since 2005.
They apparently have no common language.
In any event, the resumption of access rights, if
requested by the respondent, could only be gradual.
The respondent’s place of residence is currently
unknown.
In the circumstances it appears appropriate to order the
provisional suspension of the respondent’s access rights in
respect of his son Noam.
The applicant requests that ‘parental authority in
respect of Noam, born on 10 June 2003, be exclusively and
provisionally granted to his mother Isabelle Neulinger in Lausanne
for the purposes of renewing his identity papers’.
The applicant has explained that her son, who has dual
Israeli and Swiss nationality, currently has no identity documents.
He had a Swiss passport until recently.
However, when it expired the administrative authorities
refused to issue him with a new one without the father’s
consent, as the parties had joint parental authority in respect of
the child.
The respondent’s place of abode is currently
unknown.
The applicant is thus unable to ask him for such
consent.
The child lives in Switzerland with her,
and she has custody of him.
The present case, on the merits, admittedly concerns a
change in the attribution of parental authority, since the applicant
requests that by virtue of Swiss law it be exclusively granted to
her.
It may appear that the provisional measure requested, if
granted, settles the case on the merits.
However, the requested measure is far more limited in
scope since it is only to ensure the possibility of obtaining
identity papers for the applicant’s child.
The child is a Swiss national resident in Switzerland.
It is therefore necessary for him, like any other
citizen, to obtain identity papers.
The applicant’s request is therefore granted.
...”
It
does not appear, from the information currently before the Court,
that either party to the dispute has appealed against that decision.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Protection of the rights of the child
1. International Convention on the Rights of the Child
The
relevant provisions of the Convention on the Rights of the Child of
20 November 1989, which entered into force in respect of Switzerland
on 26 March 1997, read as follows:
Preamble
“The States Parties to the present Convention,
...
Convinced that the family, as the fundamental group of
society and the natural environment for the growth and well-being of
all its members and particularly children, should be afforded the
necessary protection and assistance so that it can fully assume its
responsibilities within the community,
Recognizing that the child, for the full and harmonious
development of his or her personality, should grow up in a family
environment, in an atmosphere of happiness, love and understanding,
...
Have agreed as follows:
...”
Article 7
“1. The child shall be registered immediately
after birth and shall have the right from birth to ... know and be
cared for by his or her parents. ...”
Article 9
“1. States Parties shall ensure that a child shall
not be separated from his or her parents against their will ...”
Article 14
“1. States Parties shall respect the right of the
child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of
the parents and, when applicable, legal guardians, to provide
direction to the child in the exercise of his or her right in a
manner consistent with the evolving capacities of the child. ...”
Article 18
“1. States Parties shall use their best efforts to
ensure recognition of the principle that both parents have common
responsibilities for the upbringing and development of the child.
Parents or, as the case may be, legal guardians, have the primary
responsibility for the upbringing and development of the child. The
best interests of the child will be their basic concern. ...”
2. Concept of the child’s “best interests”
The
concept of the child’s best interests stems from the second
principle of the Declaration on the Rights of the Child of 20
November 1959, which reads as follows:
“The child shall enjoy special protection, and
shall be given opportunities and facilities, by law and by other
means, to enable him to develop physically, mentally, morally,
spiritually and socially in a healthy and normal manner and in
conditions of freedom and dignity. In the enactment of laws for this
purpose, the best interests of the child shall be the paramount
consideration.”
The
term was used again in 1989 in Article 3 § 1 of the
Convention on the Rights of the Child:
“In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.”
Neither
the working group during the drafting of the convention nor the
Committee on the Rights of the Child has developed the concept of the
child’s best interests or proposed criteria for their
assessment, in general or in relation to specific circumstances. They
have both confined themselves to stating that all values and
principles of the convention should be applied to each particular
case (see Rachel Hodgkin and Peter Newell (eds.), Implementation
Handbook for the Convention on the Rights of the Child, United
Nations Children’s Fund 1998, p. 37). In addition, the
Committee has emphasised on various occasions that the convention
must be considered as a whole, with the relationship between the
various articles being taken into account. Any interpretation must be
consistent with the spirit of that instrument and must focus on the
child as an individual having civil and political rights and its own
feelings and opinions (ibid, p. 40).
According to the
“Guidelines on Determining the Best Interests of the Child”
issued by the UN High Commissioner for Refugees:
“The term ‘best interests’ broadly
describes the well-being of a child. Such well-being is determined by
a variety of individual circumstances, such as the age, the level of
maturity of the child, the presence or absence of parents, the
child’s environment and experiences”.
(UNHCR Guidelines on Determining
the Best Interests of the Child, May 2008)
The
principle of “the child’s best interests” is also
embodied in Articles 5 and 16 of the Convention on the
Elimination of All Forms of Discrimination against Women.
Article 5 (b) requires States Parties to take all
appropriate measures to:
“ensure that family education includes a proper
understanding of maternity as a social function and the recognition
of the common responsibility of men and women in the upbringing and
development of their children, it being understood that the interest
of the children is the primordial consideration in all cases”.
Article 16 (d)
of that convention states that men and women should have
“[t]he same rights and responsibilities as
parents, irrespective of their marital status, in matters relating to
their children; [and] in all cases the interests of the children
shall be paramount”.
Even
though the principle does not appear in the International Covenant on
Civil and Political Rights, the Human Rights Committee in its General
Comments 17 and 19 referred to “the paramount interest”
of the child in the event of the separation or divorce of its
parents. In its General Comment 17 (adopted at its 35th Session,
1989) the Committee stated that if a marriage is dissolved, steps
should be taken, keeping in view the paramount interest of the
children, to guarantee, so far as is possible, personal relations
with both parents. For abandoned children, special measures must be
taken in order to enable them to develop in conditions that most
closely resemble those characterising the family environment. In its
General Comment 19 (adopted at its 39th Session, 1990) the Committee
indicated that any discriminatory treatment in regard to divorce,
child custody, visiting rights, etc., must be prohibited, unless the
paramount interest of the child required otherwise.
The
European Union’s Charter of Fundamental Rights, which became
legally binding with the entry into force of the Lisbon Treaty on
1 December 2009, contains the following Article:
Article 24 – The rights of the child
“1. Children shall have the right to such
protection and care as is necessary for their well-being. They may
express their views freely. Such views shall be taken into
consideration on matters which concern them in accordance with their
age and maturity.
2. In all actions relating to children, whether taken by
public authorities or private institutions, the child’s best
interests must be a primary consideration.
3. Every child shall have the right to maintain on a
regular basis a personal relationship and direct contact with both
his or her parents, unless that is contrary to his or her interests.”
B. Hague Convention on the Civil Aspects of
International Child Abduction of 25 October 1980
1. Text of the instrument
The
relevant provisions of the Hague Convention on the Civil Aspects of
International Child Abduction of 25 October 1980, which entered into
force in respect of Switzerland on 1 January 1984, read as follows:
“The States signatory to the present Convention,
Firmly convinced that the interests of children are of
paramount importance in matters relating to their custody,
Desiring to protect children internationally from the
harmful effects of their wrongful removal or retention and to
establish procedures to ensure their prompt return to the State of
their habitual residence, as well as to secure protection for rights
of access,
Have resolved to conclude a Convention to this effect,
and have agreed upon the following provisions:
...”
Article 1
“The objects of the present Convention are:
(a) to secure the prompt return of children
wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under
the law of one Contracting State are effectively respected in the
other Contracting States.”
Article 3
“The removal or the retention of a child is to be
considered wrongful where:
(a) it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or alone,
under the law of the State in which the child was habitually resident
immediately before the removal or retention; and
(b) at the time of removal or retention those
rights were actually exercised, either jointly or alone, or would
have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a)
above may arise in particular by operation of law or by reason of a
judicial or administrative decision, or by reason of an agreement
having legal effect under the law of that State.”
Article 4
“The Convention shall apply to any child who was
habitually resident in a Contracting State immediately before any
breach of custody or access rights. The Convention shall cease to
apply when the child attains the age of 16 years.”
Article 5
“For the purposes of this Convention –
(a) ‘rights of custody’ shall include rights
relating to the care of the person of the child and, in particular,
the right to determine the child’s place of residence;
(b) ‘rights of access’ shall include the
right to take a child for a limited period of time to a place other
than the child’s habitual residence.”
Article 11
“The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings for the
return of children.
If the judicial or administrative authority concerned
has not reached a decision within six weeks from the date of
commencement of the proceedings, the applicant or the Central
Authority of the requested State, on its own initiative or if asked
by the Central Authority of the requesting State, shall have the
right to request a statement of the reasons for the delay. ...”
Article 12
“Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the commencement
of the proceedings before the judicial or administrative authority of
the Contracting State where the child is, a period of less than one
year has elapsed from the date of the wrongful removal or retention,
the authority concerned shall order the return of the child
forthwith.
The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the period of
one year referred to in the preceding paragraph, shall also order the
return of the child, unless it is demonstrated that the child is now
settled in its new environment.
Where the judicial or administrative authority in the
requested State has reason to believe that the child has been taken
to another State, it may stay the proceedings or dismiss the
application for the return of the child.”
Article 13
“Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of the requested
State is not bound to order the return of the child if the person,
institution or other body which opposes its return establishes that:
...
(b) there is a grave risk that his or her
return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse
to order the return of the child if it finds that the child objects
to being returned and has attained an age and degree of maturity at
which it is appropriate to take account of its views.
In considering the circumstances referred to in this
Article, the judicial and administrative authorities shall take into
account the information relating to the social background of the
child provided by the Central Authority or other competent authority
of the child’s habitual residence.”
Article 14
“In ascertaining whether there has been a wrongful
removal or retention within the meaning of Article 3, the judicial or
administrative authorities of the requested State may take notice
directly of the law of, and of judicial or administrative decisions,
formally recognized or not in the State of the habitual residence of
the child, without recourse to the specific procedures for the proof
of that law or for the recognition of foreign decisions which would
otherwise be applicable.”
Article 20
“The return of the child under the provisions of
Article 12 may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms.”
Article 21
“An application to make arrangements for
organizing or securing the effective exercise of rights of access may
be presented to the Central Authorities of the Contracting States in
the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of
co-operation which are set forth in Article 7 to promote the peaceful
enjoyment of access rights and the fulfilment of any conditions to
which the exercise of those rights may be subject. The Central
Authorities shall take steps to remove, as far as possible, all
obstacles to the exercise of such rights.
The Central Authorities, either directly or through
intermediaries, may initiate or assist in the institution of
proceedings with a view to organizing or protecting these rights and
securing respect for the conditions to which the exercise of these
rights may be subject.”
2. Consideration of the child’s “best interests”
in the context of Article 13, sub-paragraph (b), of the Hague
Convention
According
to the Explanatory Report by Ms Elisa Pérez-Vera on the
drafting of the convention,
“... since one factor characteristic of the
situations under consideration consists in the fact that the abductor
claims that his action has been rendered lawful by the competent
authorities of the State of refuge, one effective way of deterring
him would be to deprive his actions of any political or juridical
consequences. The Convention, in order to bring this about, places at
the head of its objectives the restoration of the status quo
...”. (§ 16, p. 429)
However,
the Hague Convention contains five exceptions to the principle of the
child’s prompt return, among which the most commonly invoked
exception is that of Article 13, sub-paragraph (b).
The
French Court of Cassation, the House of Lords and the Finnish Supreme
Court have all expressly incorporated the concept of the “child’s
best interests” into their application of the exception based
on a “serious risk” within the meaning of Article 13,
sub-paragraph (b), of the Hague Convention.
In
a case from 2005 the French Court of Cassation stated that:
“under
Article 13, sub-paragraph (b), an exception can be made to the
child’s prompt return only if there is a grave risk of harm or
of the creation of an intolerable situation”
and
that
“by virtue of Article 3 § 1 of the New York
Convention on the Rights of the Child, a provision that is directly
applicable before the French courts, such circumstances must be
assessed with the child’s best interests as the primary
consideration”. (Court of Cassation, First Civil Division, 14
June 2005, appeal no. 04-16942)
That
court thus upheld a judgment of the Aix-en-Provence Court of Appeal
of 13 May 2004, finding that:
“the child’s best interests [had been] taken
into consideration by the Court of Appeal, which [had] accordingly
reached the conclusion ... that it was appropriate to order the
prompt return of the child under the Hague Convention.”
The
Finnish Supreme Court conducted a similar assessment in applying the
exception under Article 13, sub-paragraph (b), indicating that:
“... the court had pointed out that a grave risk
of harm would not exist if the mother returned to France with her
children and ensured that their living conditions were adapted
according to their best interests ...”.
([27 December 1996] Supreme Court of Finland 1996:151,
S96/2489)
In
a case examined on 16 November 2006 by the House of Lords concerning
the abduction of a child from Romania to the United Kingdom, Lord
Hope observed:
“it is impossible to believe that the child’s
best interests would be served by his return forthwith to Romania.”
(In re D (a child), [2006] UKHL 51)
3. The concept of “rights of custody” under the Hague
Convention
Article 5
(a) of the Hague Convention defines custody rights as “rights
relating to the care of the person of the child, and, in particular,
the right to determine the child’s place of residence”.
The convention recognises that custody may arise in particular by
operation of law or by reason of a judicial or administrative
decision, or by reason of an agreement having legal effect under the
law of the State in which the child had its habitual residence
immediately before removal or retention (Article 3 in fine).
Furthermore, the Explanatory Report on the convention emphasises the
drafters’ intention to protect all the ways in which custody of
children can be exercised and recognises that there can be wrongful
removal or retention even if parents have joint custody of their
child:
“In terms of Article 3, custody rights may have
been awarded to the person who demands that their exercise be
respected, and to that person in his own right or jointly. ... Now,
from the Convention’s standpoint, the removal of a child by one
of the joint holders without the consent of the other, is equally
wrongful, and this wrongfulness derives in this particular case, not
from some action in breach of a particular law, but from the fact
that such action has disregarded the rights of the other parent which
are also protected by law, and has interfered with their normal
exercise” (Explanatory Report by Elisa Pérez-Vera, Acts
and Documents of the Fourteenth Session, Vol. III, Child Abduction,
Hague Conference on Private International Law, § 71,
pp. 447-48)
The
drafters of the convention created an autonomous definition of
custody rights quite apart from domestic law interpretations of that
concept. This autonomous nature was confirmed in the “Overall
conclusions of the Special Commission of October 1989 on the
operation of the Hague Convention of 25 October 1980 on the Civil
Aspects of International Child Abduction”, which stated as
follows:
“...’rights of custody’ as referred to
in the Convention on the Civil Aspects of International Child
Abduction constitute an autonomous concept, and thus such rights are
not necessarily coterminous with rights referred to as ‘custody
rights’ created by the law of any particular country or
jurisdiction thereof. ... [T]he award of what is called ‘custody’
to only one parent under domestic law, does not necessarily mean that
all ‘rights of custody’ within the intent of the Hague
Convention have been granted to that parent. Since each domestic
legal system has its own terminology for referring to rights which
touch upon the care and control of children, and even some
English-language systems do not employ the term ‘custody’,
it is necessary to look to the content of the rights and not merely
to their name.” (Overall conclusions of the Special Commission
of October 1989 on the operation of the Hague Convention of
25 October 1980 on the Civil Aspects of International Child
Abduction, § 9, p. 3)
The
autonomous meaning of “rights of custody” was further
confirmed during the second meeting of the Special Commission when
the following conclusion, among others, was adopted:
“the expression ‘rights of custody’
... does not coincide with any particular concept of custody in a
domestic law, but draws its meaning from the definitions, structure
and purposes of the Convention.” (Report of the Second Special
Commission Meeting to review the operation of the Hague Convention on
the Civil Aspects of International Child Abduction held on
18-21 January 1993, p. 4)
In
addition, according to the Explanatory Report, the convention is
engaged only by issues relating to breaches of custody rights. It
does not in principle concern situations arising from breaches of
access rights, in particular where the child is taken abroad by its
custodian (Explanatory Report, § 65).
4. Domestic case-law concerning the concept of “rights of
custody” within the meaning of the Hague Convention
The
Hague Convention provides no enforcement mechanism or oversight body
to ensure that Contracting States implement it. Therefore, it is
possible that the case-law of domestic courts relating to the Hague
Convention may differ from one Contracting State to another. In
practice, there is a lack of consistency in the interpretation of the
various judicial bodies as regards the Hague Convention’s
distinction between custody rights and access rights, more
specifically where they have to decide whether to grant the remedy of
return to non-custodial parents who hold access rights.
However,
there seems to be a trend towards a wide interpretation of wrongful
removal or retention, thus broadening the scope of custody rights to
allow types of parenting other than the holding of custody rights to
benefit from the convention’s protection.
In
the case of C. v. C. (England and Wales Court of Appeal;
[1989] 1 WLR 654, 657-658), for example, a custodial parent had
removed a child from Australia in breach of a restraining order (also
called a ne exeat order, prohibiting a child’s removal
from a given geographical area). In that case the child could not be
removed without the consent of the non-custodial parent. The court
found that the convention’s judicial remedy of return applied.
They justified this reasoning by equating the ability to grant or
withhold consent for relocation with a custodial “right to
determine the child’s place of residence”.
The
Family Court of Australia took the same approach in the case of José
García Resina, where a father lodged an application under
the convention for the return of his children after they had been
taken to France by their maternal grandparents (José García
Resina and Muriel Ghislaine Henriette Resina, [1991] FamCA 33).
The Australian court considered both a custody order, which gave the
father “reasonable access” to the youngest child, and an
injunction restraining both the mother and the father from removing
the children from Australia. It ultimately ordered the return of the
children pursuant to the convention because their removal had
violated the father’s custody rights that had been created by
the restraining order. Similarly, the Israeli Supreme Court found
that a custody agreement between parents contained a mutual
consultation clause for major changes and unusual events, which
implicitly included decisions on the residence of the child (Foxman
v. Foxman, Israeli Supreme Court, 1992). The court thus
considered that the father had rights of custody within the meaning
of the Convention.
It
appears that other national courts, in particular in common law
countries, have largely cited the C. v. C. case and have
followed its general holding that if the custodial parent needs
permission from the court or the non-custodial parent before removing
the child from a country, a removal without such permission may be
regarded as “wrongful” within the meaning of Article 3
of the Convention (see Re F, England and Wales Court of
Appeal, [1995] 3 WLR 339, where the father had rights of custody,
even though the mother had a court order giving her temporary “care
and control” and there was no order barring the child’s
removal).
However,
the practice of domestic courts is not homogeneous. Thus, for
example, the United States Court of Appeals found that access rights
coupled with a ne exeat clause did not constitute “rights
of custody” within the meaning of the Hague Convention (Croll
v. Croll, 229 F.3d 133, 143, Second Circuit, 2000).
C. Domestic legislation relevant to the implementation at national
level of the above-mentioned conventions
1. New Swiss Federal Act on International Child Abduction and the
Hague Conventions on the Protection of Children and Adults
On
21 December 2007 the Swiss Federal Parliament enacted the “Federal
Act on International Child Abduction and the Hague Conventions on the
Protection of Children and Adults”, for the purpose of
clarifying certain notions, especially in relation to the application
of the Hague Convention of 1980. The Act entered into force on 1 July
2009. The sections of the Act referred to by the applicants read as
follows:
Section 5: Return and interest of the child
“The return of a child places him or her in an
intolerable situation, within the meaning of Article 13,
sub-paragraph (b), of the Hague Convention, in particular where the
following conditions are met:
(a) placement with the parent who lodged the
application is manifestly not in the child’s interests;
(b) the abducting parent is not, given the
circumstances, in a position to take care of the child in the State
where the child was habitually resident immediately before the
abduction, or this cannot reasonably be required of that parent; and
(c) placement in the care of a third party is
manifestly not in the child’s interests.”
Section 6: Protective measures
“The court dealing with the application for the
return of the child shall decide, as required, on the child’s
personal relations with his or her parents and order the measures
necessary to ensure his or her protection.
Where the application for return has been received by
the Central Authority, the competent court may, at the request of the
Central Authority or any of the parties, order the appointment of a
representative or a guardian for the child, or take other protective
measures even if the application for return is not yet pending before
the court.”
In
connection with the Federal Decree concerning this Act, the Federal
Council submitted to Parliament a “dispatch” (Feuille
Fédérale 2007, pp. 2433-2682), of which the
relevant passages read as follows:
“6.4 Return and interests of the child (section
5)
In order to ensure an application of the Hague
Convention of 1980 that is better adapted to the interests of the
child, it is necessary for the legislature to specify the various
situations in which the return of the child can no longer be taken
into consideration because it would place him or her in a manifestly
intolerable situation. The rule in section 5 is not supposed to
supersede the provision of Article 13, sub-paragraph (b), of the
Hague Convention of 1980. The term ‘in particular’ means
that the list merely enumerates a few situations which –
although essential – do not preclude reliance on the clause
provided for in the Convention.
Firstly, sub-paragraph (a) refers to the situations in
which the child’s accommodation by the parent who requested the
return is manifestly not in the child’s interests. If that is
not so, in particular where the parent who lodged the application has
an exclusive right of custody or is the only one who could be granted
such responsibility, there will not, in principle, be any cause for
fear that the child will be placed in an intolerable situation on his
or her return and therefore there is no reason why the return should
be refused. This will not be the case where it appears obvious to the
court that the party lodging the application would not be able to
take care of the child.
Sub-paragraph (b) governs cases in which the
appropriateness of the child’s return can be assessed only from
the standpoint of his or her relationship with the abducting parent.
Where the child’s accommodation by the parent who requested the
return is manifestly not to be taken into consideration, the problem
of his or her return to the State of origin will be addressed
differently, depending on whether the person who wrongfully removed
or retained the child (usually the mother) is or is not in a position
to return to that State. If the said parent is not able to do so
because, for example, he or she faces a prison sentence that would
lead to separation from the child or because the parent has very
close family ties in Switzerland (for example following remarriage or
on account of a situation of hardship suffered by another family
member living in Switzerland), the child’s psychological and
physical stability may be at stake, because the child would, after
the return, be obliged to live apart from his or her parents. Such
separation is tolerable only in exceptional cases and must constitute
an ultima ratio.
Second type of situation: where, given all the
circumstances, it cannot reasonably be required of the abducting
parent that he or she take care of the child in the State where the
child had his or her habitual residence immediately before the
abduction (section 5(b)). It is not sufficient for the parent who
wrongfully removed or retained the child to state that he or she
refuses to return to that State. He or she would also have to be in a
situation of hardship such that he or she could not reasonably be
expected to return to his or her place of prior residence to await
there, with the child, the court’s final decision on the
granting of custody. In that context, we have in mind especially
those cases in which the mother cannot be guaranteed safe or
affordable accommodation outside the home of her former partner. One
must further take into account those cases in which the parent who
has requested the return of the child will not resume the exercise of
the right of custody and will not obtain it by court order, whilst
the abducting parent is clearly the child’s primary carer. In
such a case the child would only be taken to the State of origin to
await the final attribution of the right of custody to the abducting
parent, before coming back to Switzerland again with that parent.
Such coming and going would ultimately only have served the purpose
of bringing the case before the authorities of the former State of
residence. Such a solution would be inadmissible according to the
spirit and purpose of the Hague Convention, because it would be
incompatible with the child’s interests. But the situation
would have to be beyond doubt for the Swiss court dealing with the
request for return. Unless the circumstances can be established
clearly, the court will have to rule that the return to the parent’s
State of origin is bearable and that, accordingly, the child will not
be placed in an intolerable situation such as to justify a decision
denying the return under Article 13, sub-paragraph (b), of the Hague
Convention.
Sub-paragraph (c) refers to placement with third
parties. If the child’s return were to lead to separation from
the parent who wrongfully removed or retained the child (because
return is impossible for that parent or cannot reasonably be required
of him or her), it could only be carried out in appropriate
conditions if the child were placed with a third party in the State
of origin. However, such a solution should only be sought, with the
resulting possibility for the competent Swiss court to order the
child’s return, if placement with a third party is not
manifestly contrary to the child’s interests. That third
condition can be satisfied only if separation from the parent
remaining in Switzerland is bearable for the child – which may
be the case where he or she has an antagonistic relationship with
that parent – and if the foster family receiving the child can
provide proper guarantees as to the protection and normal upbringing
of the child. In any event, such a situation should only be envisaged
as an ultima ratio.
It must further be noted that, for the return to be
compatible with the child’s interests and, in particular, for
the conditions of Article 13 of the Hague Convention to be fulfilled,
the authority ruling on the matter has to be apprised of the
situation prevailing in the State of origin and of the legal
provisions in force there. Thus, the parties, and in particular the
parents, have a duty to participate in the establishment of the
facts. The hearing of the parties in person by the court (section
9(1) and (2)) is therefore of great importance. The new provisions
concerning the procedure and the cooperation with the competent
authorities of the State of origin also play an essential role. The
court must be able to verify whether, and in what manner, it is
possible to ensure the child’s return (section 10(2)). If it
does not succeed in that task, or succeeds only partially, it will
not be in a position to weigh up all the consequences that a return
might have for the child. The same will be true if it does not
succeed in obtaining from the local authorities any reliable
assurances as to the conditions of the child’s reception and
protection, in particular when there is some doubt about the
requesting parent’s capacity to look after the child properly.
In this respect, section 10 is thus directly related to the practical
application of section 5.”
2. Concepts of “custody” and “guardianship”
in Israeli law
The
concept of guardianship is defined in Chapter 2 of the Capacity and
Guardianship Law 1962. The term custody is not defined as such but is
mentioned.
Section 14
of that Law provides: “Parents shall be the natural guardians
of their minor children”. In Israel, parents, whether married,
divorced or unmarried, are joint and equal guardians of their
children. The term “guardianship” may be regarded as
equivalent to “parental authority” in other
jurisdictions.
Guardianship
is an automatic right which both parents acquire and can only be
restricted or removed in exceptional circumstances (where a
Magistrate’s Court adopts one of the measures mentioned in
section 3(3) or (4) of the Youth (Care and Supervision) Law).
This rule is set out in section 27 of the Law.
Section 15
defines and describes the role of parents in Israeli law and outlines
what parental guardianship entails:
“The guardianship of the parents shall include the
duty and the right to take care of the needs of the minor, including
his education, studies, vocational and occupational training and work
and to preserve, manage and develop his property; it shall also
include the right to the custody of the minor, to determine
his place of residence and the authority to act on his behalf.”
Section 17
sets the standard of parents’ duties. It states that in
exercising their guardianship, “parents [must] act in the best
interests of the minor in such manner as devoted parents would act in
the circumstances”.
There
is a general presumption that parents should cooperate in taking
decisions relating to their guardianship (section 18). However,
where no agreement is reached, they may refer to the court to decide
the issue (section 19).
Section 24
provides that, when parents live apart, they may reach an agreement
as to: who is going to have guardianship of the minor, wholly or in
part; who is going to have custody of the minor; and what rights the
other parent is going to have, in particular as regards contact with
the child. Such an agreement is subject to the approval of the court.
Under
section 25, if the parents cannot reach such an agreement these
issues may be determined by the court having regard to the best
interests of the child.
Section
25 further creates a presumption of custody in favour of the mother
for children under six years old unless there are special
reasons for directing otherwise.
Accordingly
both parents share joint decision-making authority regarding their
child’s place of residence. One parent cannot remove the child
from Israel without the permission of the other parent or of a court.
If one parent wishes to remove the child from Israel without the
other parent’s consent, then the parent wishing to leave must
apply to the Israeli courts for a relocation order and an order for
custody of the child.
THE LAW
I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER
In
their memorial before the Grand Chamber the applicants complained of
a violation of their right to respect for their family life within
the meaning of Article 8 of the Convention. In addition, they argued
that the enforcement of the second applicant’s return without
the first applicant would constitute inhuman treatment prohibited by
Article 3 and a violation of Article 9, since the second applicant’s
father could be expected to subject him to the precepts of the
Lubavitch community, which the applicants described as
“ultra-orthodox” and from which the first applicant
wished to distance her child permanently.
The
Court notes, however, that the Chamber declared inadmissible the
complaints under Articles 3 and 9 of the Convention for failure to
exhaust domestic remedies. Accordingly, the Grand Chamber cannot
examine them (see, among other authorities, K. and T. v. Finland
[GC], no. 25702/94, § 141, ECHR 2001 VII).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants alleged that there had been a violation of their right to
respect for their family life under Article 8 of the Convention,
which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
1. Applicability of Article 8
The
Court refers to the following findings in the Chamber judgment:
“79. Turning now to the circumstances of the
present case, the Court first observes that, for the applicants, the
possibility of continuing to live together is a fundamental
consideration which clearly falls within the scope of their family
life within the meaning of Article 8 of the Convention, and that
Article is therefore applicable (see, among many other authorities,
Maire v. Portugal, no. 48206/99, § 68,
ECHR 2003 VII).
...
81. Moreover, it is not in dispute that the Federal
Court’s order for the child’s return constituted for the
two applicants an ‘interference’ within the meaning of
the second paragraph of Article 8 of the Convention.”
The
Grand Chamber subscribes to those findings, which are not in dispute
between the parties. It must therefore be ascertained whether the
impugned interference met the requirements of the second paragraph of
Article 8, that is to say whether it was “in accordance with
the law”, pursued one or more legitimate aims and was
“necessary in a democratic society” in order to fulfil
those aims.
2. Justification for the interference
(a) Legal basis
(i) The Chamber judgment
The
Chamber found as follows (see paragraph 80 of the judgment):
“The Court notes that under the Hague Convention
the removal or retention of a child is to be considered wrongful
where it is in breach of rights of custody attributed to a person,
alone or jointly, under the law of the State in which the child was
habitually resident immediately before the removal or retention
(Article 3, first paragraph, sub-paragraph (a)). The notion of
‘rights of custody’ within the meaning of the Hague
Convention includes rights relating to the care of the person of the
child and, in particular, the right to determine the child’s
place of residence (Article 5, sub-paragraph (a)). The Court
takes the view that in the present case the child’s removal to
Switzerland was wrongful, since, in accordance with the decision of
27 June 2004, the father exercised ‘guardianship’
jointly with the mother and in the Israeli legal system this
included the right to determine the child’s place of residence.
Moreover, the removal of Noam rendered illusory, in practice, the
right of access (Article 4, first paragraph) that had been granted to
the father by the decision of 17 November 2004. Accordingly, it was
unquestionably wrongful within the meaning of the Hague Convention.”
(ii) The parties’ submissions
(α) The applicants
The
applicants took the view that the present case did not concern an
international child abduction under the Hague Convention. They first
argued that Noam’s removal from Israel by his mother had not
been wrongful within the meaning of that convention. They submitted
that the Government had committed a manifest error of judgment in
indicating that the decision given on 17 November 2004 by the Israeli
court had granted “temporary custody” to the mother.
The
applicants considered the child’s removal to Switzerland to
have been lawful, for the following reasons in particular: the
father’s conduct and death threats against the first applicant
had warranted a special measure of protection in her favour that had
been granted on 12 January 2005; the father, on account of the
religious fanaticism that he displayed publicly, wanted unilaterally
to impose on his infant son an ultra-orthodox and radical religious
education and lifestyle without consideration for the child’s
interest or for the disagreement expressed by the mother; an arrest
warrant had been issued against the father on 20 March 2005 for
defaulting on maintenance payments and he had had his right of access
restricted and placed under the supervision of the social services
because of his irresponsible conduct; the criminal complaints filed
against him in Israel had been ineffective; lastly, the child’s
removal had been lawful by virtue of Israeli Law no. 5722-1962
(“Capacity and Guardianship Law”), of which section 25
provided in fine that in the event of disagreement between the
parents, children up to the age of six would remain with their
mother, and of which section 18 in fine expressly authorised
either parent to act alone in a matter admitting of no delay, which
would especially be the case where the parent had custody of the
child.
(β) The Government
The
Government took the view that the second applicant’s removal
had been wrongful. Pointing out that the Explanatory Report of April
1981 on the Hague Convention contrasted “rights of custody”
with simple access rights, they observed that “[a] questionable
result would have been attained had the application of the
Convention, by granting the same degree of protection to custody and
access rights, led ultimately to the substitution of the holders of
one type of right by those who held the other”. Thus, the
question whether joint custody existed had to be determined in each
particular case and in the light of the law in force in the country
of the child’s habitual residence.
In
the Government’s submission, it was clear that, by reference to
the definition in Article 5, sub-paragraph (a), of the Hague
Convention, Israeli guardianship covered “rights relating to
the care of the person of the child and, in particular, the right to
determine the child’s place of residence” within the
meaning of that provision. That interpretation was confirmed by the
fact that Article 3 of the Hague Convention expressly mentioned cases
where, as in the present case, custody was exercised jointly. It
could clearly be seen from the Explanatory Report that this
particularly referred to cases of joint custody after the parents had
separated or divorced. In this connection the Government stressed
that it was expressly envisaged in the Hague Convention that the
removal of a child against the wishes of a parent having joint
custody, but with whom the child did not live, would be unlawful.
The
view that joint guardianship was irrelevant as the mother alone had
custody, as expressed by Judge Spielmann in his dissenting opinion
(appended to the Chamber judgment), was not sufficiently
substantiated by the passages of the Explanatory Report cited in that
opinion. As regards Judge Spielmann’s observation that the
Explanatory Report appeared to make a distinction between custody
rights and parental authority in the context of children entrusted to
an institution, the Government observed that it was apparent from the
passage in question that in the event of compulsory placement of the
child, custody for the purposes of the Hague Convention would belong
to the relevant body. In the Government’s submission, as that
body was then responsible for taking care of the child’s needs
and, in particular, for determining its place of residence, that
passage also confirmed that custody within the meaning of the Hague
Convention corresponded to guardianship and not to custody in Israeli
law.
In
view of the foregoing, the Government submitted that the Hague
Convention was applicable and that the second applicant’s
removal from Israel had to be regarded as wrongful within the meaning
of that convention. All the authorities dealing with the matter,
whether the Israeli and Swiss authorities or the Chamber of the
Court, had moreover shared that opinion.
(iii) The Court’s assessment
The
Court notes that the Federal Court’s judgment of 16 August 2007
was based mainly on the Hague Convention, which has been incorporated
into Swiss law. However, the applicants disputed the applicability of
that instrument in the present case because, in their view, Noam’s
removal from Israel by his mother was not wrongful. The Court must
therefore examine whether the Hague Convention constituted a
sufficient legal basis on which to order the child’s return to
Israel.
The
Court reiterates at the outset that it is primarily for the national
authorities, notably the courts, to resolve problems of
interpretation of domestic legislation. This also applies where
domestic law refers to rules of general international law or to
international agreements. The Court’s role is confined to
ascertaining whether those rules are applicable and whether their
interpretation is compatible with the Convention (see Waite and
Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR
1999 I, and Korbely v. Hungary [GC], no. 9174/02,
§ 72, ECHR 2008-...).
In
the present case, the second applicant’s removal was examined
by three domestic courts which all concluded, in duly reasoned
decisions, that it was wrongful within the meaning of the Hague
Convention. That assessment was confirmed by the Chamber for two main
reasons: first, even though the first applicant had custody, at least
on a provisional basis, the father had guardianship jointly with the
mother under Israeli law; second, Noam’s removal rendered
illusory, in practice, the right of access that had been granted to
the father.
It
should also be observed that the concept of custody rights, within
the meaning of the Hague Convention, has an autonomous meaning (see
paragraphs 66-67 above) since it has to be applied to all the States
Parties to that convention and may be defined differently in their
various legal systems. In the present case, it appears that in
Israeli law the institution of guardianship is comparable to custody
rights under Article 5 (a) of the Hague Convention, which refers in
its definition to the right “to determine the child’s
place of residence”. Such right is also included in
guardianship. In the present case that right was breached because it
was to be exercised jointly by both parents; moreover, there is no
indication that it was not exercised effectively until the child’s
removal, as required by Article 3 (b) of that convention.
In
addition, it is noteworthy that the mother took the child to
Switzerland in breach of an order prohibiting his removal from Israel
that had been made by the competent Israeli court at her own request.
It appears that courts in certain States take the view that breaches
of such orders give rise to the application of the Hague Convention
(see paragraphs 69-74 above).
Lastly,
even though in principle the Hague Convention applies only to
breaches of custody rights, it can be seen from its Preamble, Article
1 (b) and Article 21 (see paragraph 57 above) that it also seeks to
protect access rights. There is no doubt in the present case that the
second applicant’s removal hindered the possible exercise by
the father of the right of access that he had been granted.
In
view of the foregoing, the Court finds, like the Chamber, that the
first applicant removed her child from Israel to Switzerland
“wrongfully”, within the meaning of Article 3 of the
Hague Convention. She thus committed an abduction for the purposes of
that convention, which is therefore applicable in the present case.
Accordingly, in ordering the child’s return under Article 12 of
the Hague Convention, the impugned measure had a sufficient legal
basis.
(b) Legitimate aim
The
Court shares the Chamber’s opinion that the decision by the
Federal Court to return the child pursued the legitimate aim of
protecting the rights and freedoms of Noam and his father, as the
parties have moreover not denied before the Grand Chamber.
(c) Necessity of the interference in a democratic
society
(i) The Chamber judgment
In
the Chamber’s opinion, the interference that would be
constituted by Noam’s return would not be disproportionate. In
this connection the Chamber noted the many measures that had been
taken by the Israeli authorities in order to protect the applicants
when they were still living in that country. A return to Israel could
be envisaged for the mother and for the child, given that he was
still at a perfectly adaptable age (see the Chamber judgment, §§
80 and 89). As regards the risk of a criminal sanction against the
mother, the Chamber found no reason to doubt the credibility of the
assurances given by the Israeli authorities in that connection,
having regard in particular to the efforts they had made for the
mother and child before their departure for Switzerland (ibid., §
90). The Chamber further emphasised that it was in the “best
interests” of every child to grow up in an environment that
allowed him or her to maintain regular contact with both parents
(ibid., § 91). In addition, there was no evidence to suggest
that the first applicant would be unable to influence her son’s
religious education or that the Israeli authorities and courts would
be unable to prevent the father from sending him to a religious
“Heder” school (ibid., § 92).
(ii) The parties’ submissions
(α) The applicants
The
applicants submitted that, in the present case, it should be borne in
mind that the first applicant had custody of the child whilst the
father had a limited right of access, under supervision, on account
of conduct that all the judges dealing with this case had unanimously
found to be unacceptable. In the applicants’ submission, that
circumstance was of the essence, since it clearly distinguished the
present case from that of Bianchi v. Switzerland (no. 7548/04,
§ 77, 22 June 2006), in which the Court had emphasised that
while its role was not to substitute itself for the competent
authorities in regulating custody and access issues, it was
nevertheless entitled to review under the Convention the decisions
that those authorities had taken in the exercise of their power of
appreciation.
The
applicants took the view that the Federal Court’s method was
significantly different from that adopted by the first two courts in
support of their decisions: while those two courts had refused to
place too narrow an interpretation on the provisions of the relevant
international instruments, the same could not be said for the Federal
Court, which had limited the scope of its analysis by deliberately
taking an overtly restrictive position. Whilst the courts below had
upheld the objection to the child’s return, highlighting, in
particular, the best interests of the child and the grave risk of
psychological harm, and also the intolerable situation which they
considered the child would face if he were returned to Israel with or
without his mother, the Federal Court had quite simply rejected that
approach, even though it was supported by an expert’s report,
and had declared that the proper solution was in fact to compel the
mother, who had custody, to return to Israel with the child, failing
which she would be separated from him. However, the first applicant
had always declared that she would not return to Israel, not only
because of the intolerable situation which had precisely led her to
leave that country in June 2005, but also because to do so would mean
uprooting herself and her child and would entail problems for her
before the Israeli courts. In addition, as she had sole financial
responsibility for the child, the first applicant could not
reasonably be expected to give up her job in Switzerland.
Furthermore, the child and his mother had been fully integrated in
the environment and social life of Lausanne for more than four years.
In
the applicants’ submission, the risk that the mother would be
imprisoned if she returned to Israel was established and the civil
consequences of separation would be disastrous. They stated that,
under Israeli criminal law no. 5737-1977, the mother was liable to
very severe criminal sanctions. Contrary to the Federal Court’s
finding, she would most certainly face such a sanction on her return
to Israel and this would undoubtedly constitute, in the applicants’
view and as the medical expert had emphasised in his report of 16
April 2007, a major psychological trauma and an intolerable situation
for the child, who would in practice experience an immediate and
distressing separation from his mother. The applicants stated that
the consequences of the mother’s imprisonment in Israel would
also be disastrous in civil terms for the future of mother and child.
They alleged that in such a case, after being separated from his
mother when she was sent to prison, Noam would not be entrusted to
his father on account of the decisions previously issued against him,
his instability and his lack of resources. They pointed out at this
stage that the father had remarried on 1 November 2005 but had
divorced his new wife, G., on 29 March 2006 while she was pregnant.
He had married a third time and proceedings had again been brought
against him in 2008, this time by his second wife, for defaulting on
maintenance payments in respect of their daughter.
The
applicants also argued that neither the Israeli authorities nor the
respondent Government had given any reliable guarantees that the
first applicant would not face criminal sanctions should she return
to Israel and that she would not be separated from her child, of whom
she had custody. The letter produced by the respondent Government in
support of their observations of 15 February 2008 (Annex no. 3 –
paragraph 40 above) contained no element capable of precluding with
certainty all risk of criminal sanctions against her if she returned
to Israel.
The
applicants also pointed out that in his report of 16 April 2007
Dr B., a medical expert, taking into account the fact that the mother
had ruled out her return to Israel owing to the risk of judicial
proceedings against her, had concluded that the child’s return
without his mother would entail major psychological trauma in the
form of extreme separation anxiety and a major risk of severe
depression.
In
the applicants’ submission, the opinion expressed by the
Federal Court and by the respondent Government in the present case
did not reflect those expressed by the Federal Council, by legal
writers, by the Swiss Parliament or by the main organisations which
had been consulted prior to the enactment, on 21 December 2007, of
the new Federal Act on International Child Abduction and the Hague
Conventions on the Protection of Children and Adults.
The
failure to return the child to Israel would not undermine the
international protection system established by the Hague Convention
but, on the contrary, would uphold it. In the applicants’
submission, whilst the principle of that convention was to return a
wrongfully removed child to the State of his or her habitual
residence with the assistance of the Central Authorities designated
for that purpose, it nevertheless had to be emphasised that there was
an exception to that principle where the return would expose the
child to a grave risk of physical or psychological harm and/or to an
intolerable situation (Article 13, sub-paragraph (b), of the Hague
Convention). The applicants moreover pointed out that nowadays the
Hague Convention was no longer the only instrument providing for
assessment in proceedings of this type. They emphasised that the
Convention on the Rights of the Child made the best interests of the
child a primary consideration in all decisions relating to children.
Thus they took the view that the Federal Court should not have
disregarded the best interests of the child. In assessing those
interests it should have ascertained and weighed up specifically and
objectively the consequences of the child’s return to Israel,
and should have determined and described, before delivering its
judgment, the appropriate arrangements that would apply upon the
child’s return.
As
regards the possibility that the parents might agree on the child’s
education, such a scenario could not be envisaged in the present case
precisely because of the radical position adopted by the father. The
applicants pointed out in this connection that at the time of his
marriage to the first applicant on 16 October 2001, Mr Shuruk had not
yet adopted a radical religious attitude. It was only from the autumn
of 2003, shortly after the child’s birth, that the father had,
without taking into account the mother’s opinion, chosen to
join an ultra-orthodox religious movement, thus completely changing
the rules of life adopted by the spouses at the time of their
marriage. Moreover, Mr Shuruk had not denied that he belonged to the
ultra-orthodox Jewish “Lubavitch” movement, which, in the
applicants’ submission, was a “mystical and ascetic
movement” of traditional Hasidic Judaism, whose members engaged
in zealous proselytising. Nor had Mr Shuruk denied having also
sought to impose on his wife and child a radical way of life which,
for example, required women to hide their hair and boys to be sent at
the age of three to religious “Heder” schools. In this
connection, the first applicant explained that she had no intention
of cutting her son off from his roots. Since 2006 he had been
attending a municipal secular nursery school one day a week and a
private State-approved Jewish day-care centre where, in addition to
the school curriculum of the Canton of Vaud, he was being taught the
basic principles of Judaism.
Lastly,
the applicants argued that the child’s protection required the
authorities of the requested State to have taken all the necessary
precautionary measures prior to enforcing the return that had been
ordered. They observed that it was apparent in particular from the
Government’s observations of 15 February 2008 that the Federal
Court’s judgment of 16 August 2007 did not contain any
provisions for its enforcement.
For
these reasons the applicants concluded that the child’s return
to Israel would constitute an unjustified interference, in a
democratic society, with the exercise of their right to respect for
their family life, as protected by Article 8 of the Convention.
(β) The Government
The
Government observed that whilst a return to Israel would cause the
first applicant some inconvenience that she might find
unsatisfactory, such problems were inherent in the Hague Convention
system and could not render its mechanism inoperable. In the
Government’s submission it was only where the return entailed
violations of human rights that went beyond the interference inherent
in the return envisaged by the Hague Convention that such return had
to be declared incompatible with the Convention, a situation which,
moreover, was envisaged by Article 20 of the Hague Convention. The
Government took the view that the exceptions to the child’s
return had to be interpreted in a restrictive manner if the Hague
Convention was not to become a dead letter.
The
Government further relied on the Court’s judgment in
Maumousseau and Washington v. France (no. 39388/05, ECHR
2007 XIII), where it had stated that the aim of the Hague
Convention was to prevent the “abducting” parent from
succeeding in legitimating, by the passage of time operating in his
or her favour, a de facto situation which he or she had
created unilaterally. In that case the national authorities had
stressed, in particular, that the mother, contrary to what she
maintained, could accompany her child to the State in which he had
his habitual residence in order to assert her rights there. That
factor had been regarded as decisive by the Court, as the mother had
unrestricted access to the territory of the State in question and
could bring proceedings before the competent courts of that State.
In
the Government’s opinion, the arguments put forward in the
dissenting opinions, and reiterated by the applicants in their
referral request, could not call into question the merits of the
assessment by the Federal Court and by the Chamber. It could not be
inferred, in the context of the Hague Convention, that the fact that
the first applicant was socially integrated in Lausanne prevented her
from accompanying the second applicant if he returned to Israel. As
she had lived in Israel for six years, she must surely have a certain
social network there. In that connection, the Government emphasised
that, according to the report by the expert Dr B., she had decided to
settle in Israel after spending holidays with her family in that
country.
As
regards the risk of criminal sanctions, the Government took the view
that nothing new had emerged from the dissenting opinions or from the
applicants’ referral request. The Government admitted that it
followed from a letter from the Israeli Central Authority, forwarded
to the Guardianship Division by the child’s father, that under
Israeli criminal law a custodial sentence could be imposed for child
abduction. However, guidelines issued by the Israeli State Attorney’s
Department provided that when the police were dealing with such a
case they would transfer it to the Israeli Central Authority
responsible for application of the Hague Convention, which would then
make recommendations as to the solution to be applied to the case. In
this connection the Government observed that, according to the
relevant guidelines, criminal proceedings should be brought only in
very exceptional cases. The Israeli Central Authority had indicated
that in the present case it would consider directing the Israeli
police to close the criminal proceedings if the first applicant
proved ready to cooperate with the Israeli authorities and to respect
the right of access granted to the father by the Tel Aviv Family
Court, and if she did not disappear again with the child (see letter
of 30 April 2007 appended to the Government’s observations of
14 August 2009). In this connection the Government took the view that
the Hague Convention system was based on mutual confidence between
the States Parties to that instrument and that if a State should fail
to comply with its assurances, it would run the risk that the other
States might not cooperate with it in the fashion envisaged. The
Government thus subscribed to the Chamber’s view that no doubt
should be cast on the credibility of the assertions in that letter
and that the first applicant did not run the risk of incurring
criminal sanctions (see Chamber judgment, § 90).
The
Government further observed that, throughout the domestic
proceedings, the first applicant had never adduced the slightest firm
evidence relating to the judicial consequences which she would
allegedly face in the event of her return. On the contrary, she had
asserted at the hearing of 29 August 2006 before the Justice of
the Peace that she did not even contemplate returning to Israel and
that she did not know what risk she would personally run if she were
to return to that country.
Lastly,
the fact that the second applicant’s father had defaulted on
his maintenance obligations was also insufficient to preclude the
reasonable expectation that the first applicant would return to
Israel. In the Government’s submission, strictly from the
viewpoint of the child’s best interests, it would no doubt be
preferable for him to grow up having contact with his father, even if
the father paid him no maintenance, than to grow up without knowing
him.
In
response to the fears expressed in the dissenting opinions and
reiterated by the applicants in their referral request, namely,
first, that any attempt on the first applicant’s part to
influence her son’s religious education would in all likelihood
be unsuccessful and, second, that the Chamber had placed confidence,
in an abstract fashion, in a legal system whose principles in family
law matters differed, sometimes significantly, from those that were
applied in Europe, the Government referred to the Explanatory Report
on the Hague Convention, according to which, when the convention was
being drafted, one of the concerns taken into account was to avoid
the risk that decisions given pursuant to that instrument might
express “particular cultural, social etc. attitudes which
themselves derive[d] from a given national community” and thus,
basically, impose “their own subjective value judgments upon
the national community from which the child ha[d] recently been
snatched” (paragraph 22 of the Report). Furthermore, in the
event of disagreement about a child’s religious education, the
court granting parental authority would decide according to the best
interests of the child. Independently of whether the Israeli courts
dealing with the case were religious or secular courts, it was
noteworthy that they had followed the recommendations of the social
worker responsible for the case and had imposed many restrictions on
the second applicant’s father, even though his conduct was
linked with his religious ideas. There was thus no reason to conclude
that those courts, on account of the “religious context of the
case”, would not act in an appropriate manner.
The
Government further observed that before the applicants had left
Israel their family situation had been closely monitored by the Tel
Aviv social services and the Tel Aviv Family Court, which had, in
particular, prohibited the child’s father from approaching the
first applicant’s flat and the child’s nursery school,
from disturbing or harassing the first applicant in any way
whatsoever, including by mental harassment, and in any place, from
using the flat in which the first applicant lived or from carrying or
possessing a weapon. The Government pointed out that it was not
disputed that the father had complied with those measures (see record
of the hearing of 29 August 2006 before the Justice of the Peace).
It
was also apparent from a letter from the Israeli Central Authority to
the Cantonal Court that the Israeli Prevention of Family Violence Law
of 1991 made provision for protective measures in the event of
allegations of violence within the family (see the letter of 12 March
2007 in Annex 6 to the Government’s observations of 14 August
2009). The Israeli authorities’ conduct and the measures taken
before the first applicant’s departure with her son showed that
the provisions of that law were applied effectively. In those
circumstances, and in the light of the measures taken by the Israeli
authorities, the Government submitted that the conduct of the second
applicant’s father did not constitute a risk within the meaning
of Article 13, sub-paragraph (b), of the Hague Convention.
Lastly,
the applicants’ extended stay in Switzerland could not
constitute an obstacle to their return pursuant to the Hague
Convention. The Government, relying in this connection on the Chamber
judgment, took the view in particular that, given the second
applicant’s young age, he would not be exposed to any risk
within the meaning of the relevant provisions.
In
so far as the applicants had also criticised the judgment of the
Federal Court of 16 August 2007 for not containing any provisions for
its enforcement, the Government observed that the enforcement of
judgments of the Federal Court was a matter for the cantonal
authorities. The Government explained that the competent authority in
the present case was the Justice of the Peace of the District of
Lausanne, which had delivered the decision at first instance. On 20
August 2007 the child’s father had applied to that authority
through his counsel to appoint an ad hoc guardian for the
child with the task of arranging Noam’s departure in accordance
with the decision of the Federal Court. Following this Court’s
decision of 27 September 2007 to indicate a stay of execution in
the present case, the father had withdrawn his request on 1 October
2007. These were the reasons why, for the time being, the
arrangements for the child’s return had not yet been decided.
The Government further observed that the Federal Court, in its
judgment of 16 August 2007, had ordered the child’s return on
the assumption that the mother could be expected to accompany him.
Moreover, primary responsibility for arranging the return lay with
the first applicant, who had created the present dispute in the first
place by abducting her son. The Government submitted, however, that
if the first applicant had expressed actual fears linked with
specific aspects of a return to Israel, the competent authority could
have examined measures capable of providing a remedy. Moreover, the
arrangements for the child’s return had not been examined
further by the Swiss authorities on account of the interim measures
indicated by the Court.
The
Government expressed the view that, after a stay of more than four
years in the host country, it was clearly no longer possible to speak
of a “prompt return” within the meaning of the Hague
Convention. Moreover, whilst it was true that, at the time of the
Federal Court’s judgment, it was justifiable to disregard the
passage of time, that was no longer the case at present. In other
words, the Government’s submission is that the authorities
competent for the enforcement of the return have the right and the
duty to examine the conditions in which the return could be
implemented without breaching the applicants’ rights.
Having
regard to the foregoing, the Government were satisfied that the
conditions of Article 13, sub-paragraph (b), of the Hague Convention
had manifestly not been met in the present case, and that the
balancing of the interests involved, even if it entailed difficult
consequences for the first applicant, was consistent with that
provision and complied with the requirements of Article 8 § 2 of
the Convention.
(iii) The Court’s assessment
(α) General principles
The
Convention cannot be interpreted in a vacuum but must be interpreted
in harmony with the general principles of international law. Account
should be taken, as indicated in Article 31 § 3 (c) of the
Vienna Convention on the Law of Treaties of 1969, of “any
relevant rules of international law applicable in the relations
between the parties”, and in particular the rules concerning
the international protection of human rights (see Golder v. the
United Kingdom, 21 February 1975, § 29, Series A no. 18;
Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96,
35532/97 and 44801/98, § 90, ECHR 2001-II; and Al-Adsani
v. the United Kingdom [GC], no. 35763/97, § 55, ECHR
2001-XI).
In
matters of international child abduction, the obligations that
Article 8 imposes on the Contracting States must therefore be
interpreted taking into account, in particular, the Hague Convention
on the Civil Aspects of International Child Abduction of 25 October
1980 (see Iglesias Gil and A.U.I. v. Spain, no.
56673/00, § 51, ECHR 2003-V, and Ignaccolo-Zenide v. Romania,
no. 31679/96, § 95, ECHR 2000-I) and the Convention on the
Rights of the Child of 20 November 1989 (see Maire, cited
above, § 72). The Court has, for example, espoused the
provisions of the Hague Convention on a number of occasions, in
particular Article 11 when examining whether the judicial or
administrative authorities, on receiving an application for the
return of a child, had acted expeditiously and diligently, as any
inaction lasting more than six weeks could give rise to a request for
a statement of reasons for the delay (see, for the text of that
provision, paragraph 57 above, and for examples of application,
Carlson v. Switzerland, no. 49492/06, § 76,
ECHR 2008-... ; Ignaccolo-Zenide, cited above, § 102;
Monory, cited above, § 82; and Bianchi, cited above,
§ 94).
However,
the Court must also bear in mind the special character of the
Convention as an instrument of European public order (ordre
public) for the protection of individual human beings and its own
mission, as set out in Article 19, “to ensure the observance of
the engagements undertaken by the High Contracting Parties” to
the Convention (see, among other authorities, Loizidou v. Turkey
(preliminary objections), 23 March 1995, § 93, Series A no.
310). For that reason the Court is competent to review the procedure
followed by domestic courts, in particular to ascertain whether the
domestic courts, in applying and interpreting the provisions of the
Hague Convention, have secured the guarantees of the Convention and
especially those of Article 8 (see, to that effect, Bianchi,
cited above, § 92, and Carlson, cited above, §
73).
In this area the decisive issue is whether a fair
balance between the competing interests at stake – those of the
child, of the two parents, and of public order – has been
struck, within the margin of appreciation afforded to States in such
matters (see Maumousseau and Washington, cited above, § 62),
bearing in mind, however, that the child’s best interests must
be the primary consideration (see, to that effect, Gnahoré
v. France, no. 40031/98, § 59, ECHR 2000 IX), as is
indeed apparent from the Preamble to the Hague Convention, which
provides that “the interests of children are of paramount
importance in matters relating to their custody”. The child’s
best interests may, depending on their nature and seriousness,
override those of the parents (see Sahin v. Germany [GC],
no. 30943/96, § 66, ECHR 2003 VIII). The parents’
interests, especially in having regular contact with their child,
nevertheless remain a factor when balancing the various interests at
stake (ibid., and see also Haase v. Germany, no. 11057/02,
§ 89, ECHR 2004 III (extracts), or Kutzner v.
Germany, no. 46544/99, § 58, ECHR 2002 I, with the
numerous authorities cited).
The
Court notes that there is currently a broad consensus –
including in international law – in support of the idea that in
all decisions concerning children, their best interests must be
paramount (see the numerous references in paragraphs 49-56 above, and
in particular Article 24 § 2 of the European Union’s
Charter of Fundamental Rights). As indicated, for example, in the
Charter, “[e]very child shall have the right to maintain on a
regular basis a personal relationship and direct contact with both
his or her parents, unless that is contrary to his or her interests”.
The
child’s interest comprises two limbs. On the one hand, it
dictates that the child’s ties with its family must be
maintained, except in cases where the family has proved particularly
unfit. It follows that family ties may only be severed in very
exceptional circumstances and that everything must be done to
preserve personal relations and, if and when appropriate, to
“rebuild” the family (see Gnahoré, cited
above, § 59). On the other hand, it is clearly also in the
child’s interest to ensure its development in a sound
environment, and a parent cannot be entitled under Article 8 to have
such measures taken as would harm the child’s health and
development (see, among many other authorities, Elsholz v. Germany
[GC], no. 25735/94, § 50, ECHR 2000 VIII, and Maršálek
v. the Czech Republic, no. 8153/04, § 71, 4 April 2006).
The
same philosophy is inherent in the Hague Convention, which in
principle requires the prompt return of the abducted child unless
there is a grave risk that the child’s return would expose it
to physical or psychological harm or otherwise place it in an
intolerable situation (Article 13, sub-paragraph (b)). In other
words, the concept of the child’s best interests is also an
underlying principle of the Hague Convention. Moreover, certain
domestic courts have expressly incorporated that concept into the
application of the term “grave risk” under Article 13,
sub-paragraph (b), of that convention (see paragraphs 58-64 above).
In view of the foregoing, the Court takes the view that Article 13
should be interpreted in conformity with the Convention.
It
follows from Article 8 that a child’s return cannot be ordered
automatically or mechanically when the Hague Convention is
applicable. The child’s best interests, from a personal
development perspective, will depend on a variety of individual
circumstances, in particular his age and level of maturity, the
presence or absence of his parents and his environment and
experiences (see the UNHCR
Guidelines, paragraph 52 above). For that reason, those best
interests must be assessed in each individual case. That task is
primarily one for the domestic authorities, which often have
the benefit of direct contact with the persons concerned. To that end
they enjoy a certain margin of appreciation, which remains subject,
however, to a European supervision whereby the Court reviews under
the Convention the decisions that those authorities have taken in the
exercise of that power (see, for example, Hokkanen v. Finland,
23 September 1994, § 55, Series A no. 299 A, and
Kutzner, cited above, §§ 65-66; see also
Tiemann v. France and Germany (dec.), nos. 47457/99 and
47458/99, ECHR 2000 IV; Bianchi, cited above, § 92;
and Carlson, cited above, § 69).
In
addition, the Court must ensure that the decision-making process
leading to the adoption of the impugned measures by the domestic
court was fair and allowed those concerned to present their case
fully (see Tiemann, cited above, and Eskinazi and Chelouche
v. Turkey (dec.), no. 14600/05, ECHR 2005 XIII
(extracts)). To that end the Court must ascertain whether the
domestic courts conducted an in-depth examination of the entire
family situation and of a whole series of factors, in particular of a
factual, emotional, psychological, material and medical nature, and
made a balanced and reasonable assessment of the respective interests
of each person, with a constant concern for determining what the best
solution would be for the abducted child in the context of an
application for his return to his country of origin (see Maumousseau
and Washington, cited above, § 74).
The
Court has already had occasion to examine the question whether the
conditions of enforcement of a child’s return were compatible
with Article 8 of the Convention. It defined the obligations of
States in such matters in the case of Maumousseau and Washington
(cited above, § 83) as follows:
“The Court points out that while the essential
object of Article 8 is to protect the individual against arbitrary
interference by the public authorities, there may in addition be
positive obligations inherent in effective ‘respect’ for
family life. As to the State’s obligation to take positive
measures, Article 8 includes the right of a parent – in
this case the father – to the taking of measures with a view to
his or her being reunited with his or her child and an obligation on
the national authorities to take such action (see, for example,
Ignaccolo-Zenide, cited above, § 94). However, this
obligation is not absolute, since the reunion of a parent with his or
her child may not be able to take place immediately and may require
preparation. The nature and extent of such preparation will depend on
the circumstances of each case, but the understanding and cooperation
of all concerned are always important ingredients. In addition, when
difficulties appear, mainly as a result of a refusal by the parent
with whom the child lives to comply with the decision ordering the
child’s prompt return, the appropriate authorities should then
impose adequate sanctions in respect of this lack of cooperation and,
whilst coercive measures against children are not desirable in this
sensitive area, the use of sanctions must not be ruled out in the
event of manifestly unlawful behaviour by the parent with whom the
child lives (see Maire, cited above, § 76). Lastly, in
this kind of case, the adequacy of a measure is to be judged by the
swiftness of its implementation. Proceedings relating to the award of
parental responsibility, including the enforcement of the final
decision, require urgent handling as the passage of time can have
irremediable consequences for relations between the child and the
parent with whom it does not live. The Hague Convention recognises
this fact because it provides for a range of measures to ensure the
prompt return of children removed to or wrongfully retained in any
Contracting State. Article 11 of the Hague Convention requires
the judicial or administrative authorities concerned to act
expeditiously to ensure the return of children and any failure to act
for more than six weeks may give rise to a request for explanations
(see Maire, cited above, § 74).”
(β) Application of those principles to the present
case
It
is not the Court’s task to take the place of the competent
authorities in examining whether there would be a grave risk that the
child would be exposed to psychological harm, within the meaning of
Article 13 of the Hague Convention, if he returned to Israel.
However, the Court is competent to ascertain whether the domestic
courts, in applying and interpreting the provisions of that
convention, secured the guarantees set forth in Article 8 of the
Convention, particularly taking into account the child’s best
interests.
The
Court notes that the domestic courts hearing the case were not
unanimous as to the appropriate outcome. On 29 August 2006 the
Lausanne District Justice of the Peace dismissed the father’s
application for the child’s return, finding that Article 13,
sub-paragraph (b), of the Hague Convention was to be applied in the
case (see paragraph 36 above). On 22 May 2007 that decision was
confirmed in substance by the Guardianship Division of the Cantonal
Court of the Canton of Vaud (see paragraph 41 above). However, on
16 August 2007, the Federal Court allowed the father’s
application and ordered Noam’s return. In that court’s
opinion, the judgment of the Cantonal Court had failed to provide any
evidence of a grave risk of harm, or of any intolerable situation for
the child, in the eventuality – an acceptable one for the
Federal Court – of the mother’s return with him to Israel
(see paragraph 44 above). Lastly, in a provisional-measures order of
29 June 2009 the President of the Lausanne District Court decided
that Noam should live at his mother’s address in Lausanne,
suspended the father’s right of access in respect of his son
and granted exclusive parental authority to the mother. He observed
in particular that neither the father nor his lawyer had ever
appeared at hearings before that court and thus found that the father
had lost interest in the case (see paragraph 47 above).
Moreover,
a number of experts’ reports concluded that there would be a
risk for the child in the event of his return to Israel. In the first
such report, delivered on 16 April 2007 by Dr B., it was stated that
the child’s return to Israel with his mother would expose him
to a risk of psychological harm whose intensity could not be assessed
without ascertaining the conditions of that return, in particular the
conditions awaiting the mother and their possible repercussions for
the child. As to the child’s return without his mother, that
would also expose him to a risk of major psychological harm (see
paragraph 37 above). The second report, drafted on 23 February 2009
by Dr M.-A., concludes that Noam’s abrupt return to Israel
without his mother would constitute a significant trauma and a
serious psychological disturbance for the child (see paragraph 46
above).
It
would thus seem that in the view of the domestic courts and experts,
Noam’s return could only be envisaged with his mother, in any
event. Even the Federal Court, the only domestic court to have
ordered the child’s return, based its decision on the
consideration that as there were no grounds objectively justifying
the mother’s refusal to return to Israel, she could reasonably
be expected to return to that country with her child. It must
therefore be determined whether this conclusion is compatible with
Article 8, that is to say whether the forced return of the child
accompanied by his mother, even though she seems to have ruled out
this possibility, would represent a proportionate interference with
the right of each of the applicants to respect for their family life.
Even
though doubts in this respect may appear justified, the Court is
prepared to accept that in the present case the measure in question
remains within the margin of appreciation afforded to national
authorities in such matters. However, in order to assess whether
Article 8 has been complied with, it is also necessary to take into
account the developments that have occurred since the Federal Court’s
judgment ordering the child’s return (see, mutatis mutandis,
Sylvester v. Austria, nos. 36812/97 and 40104/98, 24
April 2003). The Court must therefore place itself at the time of the
enforcement of the impugned measure (see, mutatis mutandis,
Maslov v. Austria [GC], no. 1638/03, § 91, ECHR
2008–...). If it is enforced a certain time after the child’s
abduction, that may undermine, in particular, the pertinence of the
Hague Convention in such a situation, it being essentially an
instrument of a procedural nature and not a human rights treaty
protecting individuals on an objective basis. Moreover, whilst under
Article 12, second paragraph, of the Hague Convention, a judicial or
administrative authority before which the case is brought after the
one-year period provided for in the first paragraph must order the
child’s return, this is not so if it is demonstrated that the
child is now settled in his or her new environment (see, to that
effect, Koons v. Italy, no. 68183/01, §§ 51 et
seq., 30 September 2008).
The
Court takes the view that guidance on this point may be found,
mutatis mutandis, in its case-law on the expulsion of aliens
(see Maslov, cited above, § 71, and Emre v.
Switzerland, no. 42034/04, § 68, 22 May 2008),
according to which, in order to assess the proportionality of an
expulsion measure concerning a child who has settled in the host
country, it is necessary to take into account the child’s best
interests and well-being, and in particular the seriousness of the
difficulties which he or she is likely to encounter in the country of
destination and the solidity of social, cultural and family ties both
with the host country and with the country of destination. The
seriousness of any difficulties which may be encountered in the
destination country by the family members who would be accompanying
the deportee must also be taken into account (see Üner
v. the Netherlands [GC], no. 46410/99, § 57, ECHR
2006 XII).
As
regards Noam, the Court notes that he has Swiss nationality and that
he arrived in the country in June 2005 at the age of two. He has been
living there continuously ever since. In the applicants’
submission, he has settled well and in 2006 started attending a
municipal secular day nursery and a State-approved private Jewish day
nursery. He now goes to school in Switzerland and speaks French (see
the provisional-measures order of 29 June 2009, paragraph 47
above). Even though he is at an age where he still has a certain
capacity for adaptation, the fact of being uprooted again from his
habitual environment would probably have serious consequences for
him, especially if he returns on his own, as indicated in the medical
reports. His return to Israel cannot therefore be regarded as
beneficial.
Accordingly,
the significant disturbance that the second applicant’s forced
return is likely to cause in his mind must be weighed against any
benefit that he may gain from it. In this connection it is
noteworthy, as the District Court observed, that restrictions had
been imposed by the Israeli courts, even before the abduction, on the
father’s right of access, authorising him to see his child only
twice a week under the supervision of the social services at a
contact centre in Tel Aviv (see paragraph 47 above). Moreover, the
applicants submitted, without being contradicted by the Government,
that Noam’s father had remarried on 1 November 2005 and had
divorced only a few months later, while his new wife was pregnant. He
had then married for a third time. New proceedings had been brought
against him in 2008, this time by his second wife, for failure to pay
maintenance in respect of his daughter. The Court doubts that such
circumstances, assuming they are established, would be conducive to
the child’s well-being and development.
As
to the problems that the mother’s return would entail for her,
she could be exposed to a risk of criminal sanctions, the extent of
which, however, remains to be determined. Before the Court the
applicants referred to the letter from the Israeli Central Authority
of 30 April 2007, which showed that the possibility of the first
applicant not being prosecuted by the Israeli authorities would
depend on a number of conditions relating to her conduct (see
paragraph 40 above). In those circumstances, such criminal
proceedings, which could possibly entail a prison sentence, cannot be
ruled out entirely (contrast Paradis and Others v Germany
(dec.), no. 4783/03, 15 May 2003). It is clear that such a
scenario would not be in the best interests of the child, the first
applicant probably being the only person to whom he relates.
The
mother’s refusal to return to Israel does not therefore appear
totally unjustified. Having Swiss nationality, she is entitled to
remain in Switzerland. Even supposing that she agreed to return to
Israel, there would be an issue as to who would take care of the
child in the event of criminal proceedings against her and of her
subsequent imprisonment. The father’s capacity to do so may be
called into question, in view of his past conduct and limited
financial resources. He has never lived alone with the child and has
not seen him since the child’s departure.
In
conclusion, and in the light of all the foregoing considerations,
particularly the subsequent developments in the applicants’
situation, as indicated in particular in the provisional-measures
order of 29 June 2009, the Court is not convinced that it would be in
the child’s best interests for him to return to Israel. As to
the mother, she would sustain a disproportionate interference with
her right to respect for her family life if she were forced to return
with her son to Israel. Consequently, there would be a violation of
Article 8 of the Convention in respect of both applicants if the
decision ordering the second applicant’s return to Israel were
to be enforced.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
Chamber found that the complaint under Article 6 § 1 of the
Convention had to be regarded as constituting one of the essential
points of the complaint under Article 8 and that it was not necessary
to examine this allegation separately (see the Chamber judgment, §
104).
The
Grand Chamber considers it appropriate to confirm that finding and
observes, moreover, that it has not been disputed before it by the
parties.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The applicants did not submit any claim in respect of
pecuniary damage. They took the view that any finding of a violation
of Article 8 would provide sufficient redress for the non-pecuniary
damage that they had sustained.
The
Court shares the applicants’ opinion and finds that no award
should be made in respect of any damage.
B. Costs and expenses
In
respect of costs and expenses, the applicants claimed a total amount
of 53,625 euros (EUR) calculated as follows: EUR 18,158.81 in respect
of the domestic proceedings, EUR 13,112.92 for the proceedings before
the Chamber, and EUR 22,353.27 for the proceedings before the Grand
Chamber.
The
Government pointed out that the questions referred from the Chamber
concerned only part of the initial complaints. Accordingly, they took
the view that if the Court were to find a violation of the
applicants’ rights, a total of 10,000 Swiss francs (CHF),
equivalent to approximately EUR 6,667, would be appropriate in the
present case to cover the costs and expenses incurred in the
proceedings before the domestic courts and before the Chamber. As
regards the proceedings before the Grand Chamber, the Government
submitted that CHF 7,000 (approximately EUR 4,667) would be an
appropriate amount.
The
Court reiterates that if it finds that there has been a violation of
the Convention, it may award the applicant the costs and expenses
incurred before the national courts for the prevention or redress of
that violation by them (see Zimmermann and Steiner v. Switzerland,
13 July 1983, § 36, Series A no. 66, and Hertel v.
Switzerland, 25 August 1998, § 63, Reports 1998 VI).
Moreover, such costs and expenses must have been actually and
necessarily incurred and must be reasonable as to quantum (see
Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR
1999 V, and Linnekogel v. Switzerland, no. 43874/98,
§ 49, 1 March 2005).
Having
regard to the foregoing, the Court notes that only the complaint
under Article 8 has, in the present case, given rise to a finding of
a violation of the Convention. The remainder of the application is
inadmissible. In addition, it is not certain that the applicants’
claims have been sufficiently substantiated to meet in full the
requirements of Rule 60 § 2 of the Rules of
Court. In any event, they appear excessive, in particular as regards
the amount claimed for the proceedings before the Grand Chamber. As
Noam’s abduction had already been examined in detail by the
domestic authorities and by the Chamber, the Court is not convinced
that the proceedings before the Grand Chamber, and in particular the
hearing of 7 October 2009, required the assistance of five lawyers
for a total cost of EUR 21,456.
Having
regard to the material in its possession and to the criteria
developed in its case-law, the Court awards the applicants jointly a
total of EUR 15,000 for costs and expenses, plus any amount that
may be payable by them in tax on that award.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Holds by sixteen votes to one that, in the event
of the enforcement of the Federal Court’s judgment of 16 August
2007, there would be a violation of Article 8 of the Convention
in respect of both applicants;
Holds unanimously that there is no need to
examine separately the applicants’ complaint under Article 6;
Holds unanimously
(a) that
the respondent State is to pay the applicants jointly, within three
months, EUR 15,000 (fifteen thousand euros) in respect of costs and
expenses, to be converted into Swiss francs at the rate applicable at
the date of settlement, plus any tax that may be chargeable to the
applicants on that amount;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 6 July 2010.
Vincent Berger Jean-Paul Costa
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) concurring
opinion of Judge Lorenzen joined by Judge Kalaydjieva;
(b) concurring
opinion of Judge Cabral Barreto;
(c) concurring
opinion of Judge Malinverni;
(d) joint
separate opinion of Judges Jočienė,
Sajó and Tsotsoria;
(e) dissenting
opinion of Judge Zupančič.
J.-P.C.
V.B.
CONCURRING OPINION OF JUDGE LORENZEN JOINED BY JUDGE
KALAYDJIEVA
I
voted with the majority for finding a violation in the event of the
enforcement of the Federal Court’s judgment of 16 August 2007,
and I also partly endorse the reasoning given for finding a
violation. However, I would like to add some comments of my own
concerning, in particular, one point where my opinion differs from
what is stated in the judgment.
Let
me first make it clear that I fully agree with the majority that the
Hague Convention is applicable in the present case and also that the
applicant acted “wrongfully” within the meaning of that
convention as she brought her child to Switzerland without the
necessary authorisation from an Israeli court. Therefore the clear
starting point for assessing this case is that the child should be
returned to Israel in accordance with Article 12 of the Hague
Convention unless the conditions for not doing so in Article 13 of
that convention are fulfilled. I also agree with what is said in
paragraph 141 of the judgment that it is not the Court’s task
to take the place of the competent authorities in examining whether,
in case of return, there would be a grave risk that the child would
be exposed to psychological harm within the meaning of that Article.
National courts, having the benefit of direct contact with the
persons involved, are better placed to make such assessments and must
be accorded a reasonable margin of appreciation. However, it is for
the Court to ascertain whether the application of the Hague
Convention respected the guarantees of Article 8 of the European
Convention on Human Rights.
In
the present case it is not in dispute that the return of the second
applicant to Israel without his mother would expose him to a grave
risk of psychological harm. This was recognised by all Swiss courts
involved in the case and even by the child’s father. The
respondent Government also agreed with this finding. The Court can
therefore, in my opinion, regard that as an established fact without
further examination.
However,
the judgment of the Federal Court is based on the assumption that “it
must be accepted that [the first applicant] could reasonably be
expected to return to [Israel] accompanied by the child”.
Similarly the Chamber found it “necessary to examine whether a
return to Israel [might] be envisaged for the mother” and
concluded that since she “ha[d] not put forward any other
reasons why she would not be able to live in Israel, ... she [could]
reasonably be expected to return to that country” (paragraph 88
of the Chamber judgment).
I
disagree with these findings and do not find that the majority has
addressed them convincingly for the following reasons:
The
Hague Convention deals with wrongful removals of children and creates
an obligation for the Contracting Parties to secure the expeditious
return of the children concerned to the State from which they were
removed. It cannot be interpreted in such a way that it obliges the
parent or, for that matter, any other person responsible for the
abduction to return to that country as well. Nor does such an
obligation, to my knowledge, follow from other Swiss law. If the
Hague Convention were to be applied in such a manner, the reality
would be that a person could be “condemned” to live
outside his or her country of origin for a considerable number of
years with all the complications that would entail, just because it
is considered in the best interests of a child to have access to the
other parent. This would in my opinion run counter to the right to
respect for, inter alia, private life as guaranteed by
Article 8 of the Convention as well as the guarantees on freedom of
movement as embodied in Article 2 of Protocol No. 4 (see, for
example, mutatis mutandis, Riener v. Bulgaria, no.
46343/99, 23 May 2006, and Gochev v. Bulgaria, no.
34383/03, 26 November 2009). Accordingly, I find it irrelevant
for the decision to be taken under the Hague Convention to look into
whether a person has pertinent motives not to live in a certain
country, which is the way it was decided in this case – and
furthermore I find it improper to do so as only that person himself
or herself can reasonably be the judge of such matters. In this
respect it is striking that the Federal Court, as well as the
Chamber, found that the first applicant could reasonably be expected
to return to Israel, whereas the Israeli Family Court in its decision
of 27 March 2005 stated that “she had no ties in that country”
(paragraph 27 of the judgment).
The
fact that the first applicant acted “wrongfully” within
the meaning of the Hague Convention is in my opinion only relevant
for determining whether an obligation to return a child at all arises
under that convention. In this respect it should not be overlooked
that she had in fact done what could reasonably be expected of her in
the situation she faced, namely to ask the Israeli court to lift the
ban on the child’s removal from Israel. However, her request
was rejected without any apparent consideration of her personal
situation or the best interests of the child. Her reaction to the
consequences of such a categorical refusal is understandable, albeit
“wrongful” under the Hague Convention.
That
being said, it is, however, my understanding of the Federal Court’s
judgment that it did not – and could not – impose any
legal obligation on the first applicant to take up residence
in Israel. Accordingly the judgment could not be enforced against her
personally if she refused to leave Switzerland and it is unclear
whether in that case the judgment could be enforced at all, as it is
based on the assumption that she accompanies the child. On the other
hand, it seems to be the intention in this part of the reasoning in
the judgment to put moral pressure on the first applicant to return
to Israel with the second applicant. In my opinion it is at least
doubtful that under certain circumstances – if at all – a
court of law may be entitled to base a decision of this kind on
considerations of a moral character without any basis in law. In any
event, in the present case it had the unfortunate effect that it
exempted the Federal Court from drawing the inevitable conclusion
that the return of the child alone would not be justified under
Article 13 of the Hague Convention. I do not in any way suggest that
the Federal Court deliberately relied on this reasoning in order to
circumvent that Article of the convention. On the contrary, I am
convinced that this was not the case, and that the decision was made
with the best intentions to comply with the obligations under the
Hague Convention. However, the effect was, in my opinion, that
Article 13 was not properly assessed and that accordingly there would
be a violation of Article 8 of the European Convention on Human
Rights in the event of the enforcement of the Federal Court’s
judgment of 16 August 2007, irrespective of any subsequent
developments in the applicants’ situation.
I
would like to add the following final remarks in order to avoid any
misunderstanding as to the intentions behind my separate opinion. It
cannot in any way be understood as casting doubt on the Hague
Convention, which is an extremely important international instrument
in the fight against child abduction. Nor has it been my intention to
question the application of that convention in this Court’s
case-law to date. But it is my opinion that the circumstances of this
case are unique in so far as it is undisputed that it was clearly in
the best interests of the second applicant to stay with his mother
irrespective of her country of residence. I do not recall any other
case before the Court where the return of a child was ordered in
similar circumstances. Accordingly, to refuse the return of the
second applicant in this particular case would in no way undermine
the normal application of the Hague Convention.
CONCURRING OPINION OF JUDGE CABRAL BARRETO
(Translation)
Whilst
I agree with the finding that there would be a violation of Article 8
of the Convention if the decision ordering the second applicant’s
return to Israel were to be enforced, I would like to add the
following remarks.
The return of the second applicant has not been advocated –
neither by the Swiss Federal Court nor by the Swiss Government –
without taking into account his particular situation.
The
Federal Court has always accepted that the second applicant would
have to return with his mother and has regarded this as a sine qua
non: “Supposing that [the] risk [of the mother’s
detention on her arrival in Israel] were proven, she could not be
expected to return to Israel with the child – and that would
accordingly rule out the return of [the child] in view of the major
psychological harm that would be caused to him by the separation from
his mother” (see paragraph 44).
In
turn the Government have submitted that: “the authorities
competent for the enforcement of the return have the right and the
duty to examine the conditions in which the return could be
implemented without breaching the applicants’ rights”
(see paragraph 129).
The judgment places great emphasis on the risk of criminal
proceedings against the mother and of subsequent imprisonment (see
paragraph 150).
I
recognise, as everyone does, that this risk makes it impossible to
envisage a return.
The
risk must therefore be removed and I believe that it would be
possible if the competent Israeli authorities were to provide the
Swiss authorities and the mother with reliable assurances that
proceedings would not be brought against her for child abduction.
However, I would still not find that sufficient.
In my
view, it is also necessary for the return of the child and his
mother, and their resettlement in Israel, to take place in a calm
atmosphere that is conducive to their well-being.
A
number of conditions would thus have to be fulfilled, such as
appropriate accommodation for the mother and her child, and suitable
employment for the mother.
In
addition, the mother should be entitled to bring proceedings, in
particular to obtain a review of parental authority and the father’s
right of access.
Lastly, I fear that the non-return of the child to Israel could have
harmful consequences for his future, as Israel is the country where
he was born and where he has his roots, and his situation vis-à-vis
his country remains irregular.
Subject to all the precautions that I have mentioned – and
others which I may have overlooked – I would be prepared to
accept that the applicant’s return might not entail a violation
of Article 8 of the Convention.
I
am unable to accept that the passage of time is sufficient to change
an “unlawful” situation into a “lawful” one.
I do
not wish to endorse the first applicant’s conduct and, to a
certain extent, justify child abductions that survive the passage of
time notwithstanding legal action against the abductor.
I am
against anything that could be seen as amounting to acceptance of
attitudes that would result in the Hague Convention on the Civil
Aspects of International Child Abduction of 25 October 1980 becoming
a dead letter.
CONCURRING OPINION OF JUDGE MALINVERNI
(Translation)
On 8
January 2009 I found with the majority of the judges in the Chamber
that Noam’s return to Israel would not entail a violation of
Article 8. I now affirm, again with the majority, that the
rights set forth in that provision would be breached in respect of
both applicants if the decision ordering the second applicant’s
return to Israel were to be enforced.
I
must provide some explanation as to the reasons why I have now come
to see this case in a different light and have departed from my
previous position. Those reasons relate to a number of factors, which
have all arisen since the delivery of the Chamber judgment.
The aim of the Hague Convention is to prevent the abducting parent
from succeeding in legitimating, by the passage of time operating in
his or her favour, a wrongful situation which he or she
brought about unilaterally. It must, however, be recognised, that the
longer an abduction lasts, the more difficult it becomes to demand
the child’s return, because the situation created by the
abduction is consolidated by the passage of time.
As
the Court stated in a recent judgment, “in this kind of case,
the adequacy of a measure is to be judged by the swiftness of its
implementation. Proceedings relating to the return of an abducted
child ... require urgent handling as the passage of time can have
irremediable consequences for relations between the child and the
parent with whom he or she does not live”.
In
other words, it is therefore a matter, once the conditions for the
application of the Hague Convention have been met, of restoring as
soon as possible the status quo ante in order to avoid the legal
consolidation of de facto situations that were brought about
wrongfully.
It
should be noted in this connection that the Hague Convention itself,
in Article 11, requires the relevant judicial or administrative
authorities to act expeditiously in proceedings for the return of
children, and any failure to act within six weeks may give rise to a
request for a statement of reasons.
As to
Article 12, it provides that where a child has been removed and a
period of less than one year has elapsed from the date of the
removal, the authority concerned must order the return of the child
forthwith (first paragraph). Where a period of more than one year has
elapsed since the date of the removal, the authority must also order
the return of the child, unless it is demonstrated that the child is
now settled in its new environment (paragraph 2).
Noam
was born on 10 June 2003. He arrived in Switzerland on 24 June 2005,
a few days after his second birthday. The Israeli Central Authority
was not able to locate him until 21 May 2006, and the next day the
Israeli Ministry of Justice sent a request for the child’s
return to the Federal Office of Justice in Berne.
The
judicial proceedings in Switzerland began on 8 June 2006, when Noam’s
father applied to the Lausanne District Justice of the Peace to
secure the child’s return to Israel. They ended with a judgment
delivered by the Federal Court on 16 August 2007 and served on the
first applicant’s lawyer on 21 September 2007. In that
judgment, the higher court ordered Noam’s mother to make
arrangements for the child’s return to Israel before the end of
September 2007.
The
child was then some four years and three months old. He had spent
about two years in Switzerland and roughly the same amount of time in
Israel.
The
Chamber of the Court gave its judgment on 8 January 2009, and that of
the Grand Chamber was adopted on 2 June 2010.
Noam
is now seven years old. He has spent two years of his life in Israel
and five in Switzerland.
I am
of the opinion that after so much time has passed, the restoration of
the status quo ante is simply no longer possible to envisage.
The Chamber had accepted that the mother could be required to return
to Israel with her son. She had lived there for six years and it
could be supposed that she still had a certain social network there.
As regards the risk that she might be sentenced to imprisonment if
she returned to Israel, the Chamber had relied on the assurances
given by the Israeli authorities. However, it would seem that any
waiver of criminal sanctions by those authorities would depend on a
number of conditions related to the first applicant’s conduct.
It cannot therefore be taken for granted that the letter from the
Israeli Central Authority of 30 April 2007 contained firm assurances
that the first applicant would not face any criminal sanctions. There
would then be an issue as to who would take care of the child in the
event of criminal proceedings against her and of her subsequent
imprisonment.
The Chamber had taken the view that Noam’s removal to
Switzerland was unlawful because the father held, jointly with the
mother, rights of guardianship, which included, under Israeli law,
the right to determine the child’s place of residence (see
Article 5 of the Hague Convention). The mother had not therefore been
entitled to decide unilaterally where her son should live. In
addition, that removal had rendered illusory, in practice, the right
of access that had been granted to the father. The very purpose of
Noam’s return to Israel would therefore be to enable him to
know his father and build a relationship with him.
The
Chamber had granted a certain weight to the report of Dr B., a child
psychiatrist, according to whom there was a significant risk that
Noam might be affected in his adolescence by the absence of a father
figure, especially when he found out under what circumstances he had
been separated from his father.
It
can be seen, however, from the order of 29 June 2009, which was made
after the Chamber’s judgment and is the most recent domestic
court decision in the present case, and against which the parties
have apparently not appealed, that the father’s current abode
is unknown, that he has never sought to see his son since the child
has been living in Switzerland, and that he now seems to have lost
interest in the case. Moreover, the applicants alleged, without being
contradicted by the Government, that the father had remarried on
1 November 2005 but had divorced his new wife, while she was
pregnant, only a few months later. In their submission, he had then
married a third time and proceedings had been brought against him in
2008 by his second wife for defaulting on maintenance payments in
respect of his daughter.
Lastly, one further reason has led me to review my position: the
Federal Act on International Child Abduction, which entered into
force on 1 July 2009 and therefore after the judgment of the
Federal Court and that of the Chamber. Section 5 of that Act seeks to
crystallise the exception provided for in Article 13, sub-paragraph
(b), of the Hague Convention, on account of the difficulties in
interpreting that provision that have been encountered by the Swiss
authorities responsible for its application.
Under
the heading “Return and interest of the child”, that
section provides in particular that a child is placed in an
intolerable situation, within the meaning of Article 13,
sub-paragraph (b), of the Hague Convention, where the following
conditions are met:
(a)
First, where the child’s placement with the parent who lodged
the application is manifestly not in the child’s interest. That
condition appears to me to have been fulfilled in the present case in
view of the personality of Noam’s father, as it emerges from
several passages in the judgment. Moreover, the father’s
capacity to take care of the child may be called into question, in
view of his past conduct and limited financial resources. He has
never lived alone with the child and has not seen him since his son
left Israel.
(b)
Second, where the abducting parent, in the circumstances, is not in a
position to take care of the child in the State where the child had
his or her habitual residence at the time of the abduction, or
manifestly cannot be so required. That condition also appears to me
to have been fulfilled. As the Court rightly observes, the mother’s
refusal to return to Israel does not appear entirely unjustified.
Having Swiss nationality, she is entitled to remain in Switzerland.
Even supposing that she agreed to return to Israel, there would be an
issue as to who would take care of the child in the event of her
imprisonment (paragraph 150 of the judgment).
In
conclusion, it is therefore mainly the passage of time, in
conjunction with the discovery of the real personality of Noam’s
father, that led me to change my assessment of the issues in this
case and to conclude that the child’s return to Israel would
not be in his interest.
JOINT SEPARATE OPINION OF JUDGES JOČIENĖ, SAJÓ
AND TSOTSORIA
We
voted with the majority in finding that, in the event of the
enforcement of the Swiss Federal Court’s judgment of 16 August
2007, there would be a violation of Article 8 of the Convention.
However,
we also think that such return in execution of the Federal Court’s
judgment (which orders the mother to secure the return of the child
to Israel without additional conditions) would have constituted a
violation of Article 8 of the Convention in so far as the Federal
Court, in applying the Hague Convention, did not give proper
consideration to the applicants’ rights under Article 8 of the
Convention.
Given that the first applicant acted “wrongfully”, within
the meaning of the Hague Convention, by abducting her child and
bringing him to Switzerland without authorisation from an Israeli
court, it follows that this convention is applicable in the present
case.
The Court’s task is not to substitute itself for the domestic
authorities in the exercise of their responsibilities. (see, among
other authorities, Hokkanen v. Finland, 23 September
1994, § 55, Series A no. 299-A, and Kutzner v. Germany,
no. 46544/99, § 65, ECHR 2002-I). On the other hand, we
emphatically agree with the majority that the Court is competent to
ascertain whether the domestic courts, in applying and interpreting
the provisions of the Hague Convention, have secured the guarantees
of the European Convention on Human Rights and especially those of
Article 8 (see paragraph 133 of the judgment). In the present case
the issue is therefore whether the guarantees of Article 8 were
secured by the Swiss Federal Court in respect of both applicants when
deciding on and ordering the second applicant’s forced return
to Israel.
In
applying Article 13 of the Hague Convention the Federal Court was of
the opinion that the “exceptions to return provided for under
Article 13 of the Hague Convention must be interpreted restrictively;
the parent who has abducted the child cannot take advantage of his or
her unlawful conduct ... Only grave risks must be taken into
consideration, excluding any grounds relating to the parents’
child-raising capacities...” (quoted in paragraph 44, emphasis
added). However, it was bound to secure the guarantees of Article 8
of the European Convention on Human Rights (see paragraph 133). The
gravity of the risk has to be understood in harmony with and in the
light of the Convention. The public order interest that consists in
denying any advantage to someone’s unlawful conduct cannot
preclude other rights-based considerations, in particular that of the
best interest of the child. The Hague Convention itself enables such
a balanced approach in its Article 13.
The
proper approach in the application of Article 13 of the Hague
Convention would be a balanced consideration of the rights protected
in Article 8, keeping in mind that in this context the proper balance
can be established only if the best interest of the child is a
primary consideration. For example, when a national authority is
required to undo the harmful effects of the wrongful removal or
retention of a child, it has to take into consideration the
consequences of the return for the child; in other words it has to
apply the Hague Convention in a forward-looking manner. A restrictive
concept of grave risks may preclude a balanced assessment. Moreover,
the application of Article 13 of the Hague Convention should entail a
comprehensive analysis as suggested by sub-paragraph (b) of that
Article, which specifically demands the avoidance of “intolerable
situations” resulting from the return of the child.
We
find that, as a result of the above-mentioned restrictive
interpretation, the Federal Court failed to attribute proper weight
to the interests and rights protected by Article 8, together with
other Convention rights (in particular Ms Neulinger’s dignity
as an autonomous person).
The Federal Court failed to provide reasonable grounds for its
dismissal of Dr B.’s expert opinion, which had been ordered and
accepted by the Vaud Cantonal Court. According to that opinion the
child’s return to Israel with his mother would expose
him to a risk of psychological harm whose intensity could not be
assessed without ascertaining the conditions of that return, in
particular the conditions awaiting the mother and their potential
repercussions for the child (see paragraph 37). The Federal Court
also failed to consider the impact of the father’s limited
rights of access and the potential financial hardship. These are
paramount considerations to be addressed in applying Article 8,
even if the specific decision concerns the return of a child
wrongfully removed. Of course, given the specific nature of the
situation, the weight of the different factors (for example, the
weight of public order in relation to dissuasion of abduction)
differs from what is applicable in “ordinary” child
placement cases. National courts, having the benefit of direct
contact with the persons involved, are better placed to make such
assessments and must be accorded a reasonable margin of appreciation.
The judgment of the Grand Chamber identifies a number of
considerations that it finds relevant today in order to assess
whether Article 8 has been complied with. The majority’s
approach indicates that in the application of the Hague Convention,
Article 8 of the Convention requires a future-oriented approach,
which can serve the best interests of the child.
We
find that the overwhelming majority of those considerations were
applicable as of 16 August 2007. The Court in particular refers to
integration into the new environment (see paragraph 145) and to the
seriousness of the difficulty the child and his mother are likely to
encounter in the country of destination (see paragraph 146). In 2007
the child, having spent two years in Switzerland was already settled
in his new environment. This was demonstrated in the domestic
proceedings. The Court finds that this was so when it refers to
nursery school attendance from 2006 onwards. However, this factor was
disregarded by the Federal Court. The Court also finds that the
pre-2007 restrictions on the father’s right of access are
relevant in the assessment of the risks for the child’s
well-being in the event of his return to Israel (see paragraphs 22
and 24.) Once again, the consideration of these factors is expressly
precluded by the Federal Court’s deliberately restrictive
interpretation of the Hague Convention. Finally, in the view of the
majority, the criminal sanctions that the mother might face in the
event of her return are also a relevant risk for the child’s
well-being. Given that the mother is probably the only person to whom
the child relates, such a risk is one that the Court finds not to be
acceptable in 2010. But the facts and the resulting risks were
already the same in 2007.
The Federal Court recognised that the child’s return without
his mother would entail a grave risk for him but it found that the
mother could reasonably be expected to accompany him to Israel and
that the above risk did not therefore exist.
In
the Federal Court’s view, the mother had failed to provide
objective reasons to justify her preference not to return. In
particular it found that the possibility of her prosecution in Israel
did not amount to an objective reason as it did not satisfy the
burden of proof that she was required to discharge in accordance with
its restrictive interpretation of Article 13 of the Hague Convention.
The reasoning of the Federal Court implies that in the absence of
objective reasons the mother has a duty to return with her child.
However, the uncontested legal obligation to take personal care of
one’s child does not entail an unconditional duty to do so at
any place of residence, in total disregard of the Convention
rights of the care provider. In its reasoning the Federal Court
disregarded the possibility and related risk that the child might not
be accompanied by his mother; the underlying assumption that the
mother has to follow the child indicates a disregard of the mother’s
Article 8 rights, her freedom of movement and her personal autonomy.
In this connection, we are in full agreement with the concurring
opinion of Judge Lorenzen, joined by Judge Kalaydjieva.
We
agree with those judges that the decision of the Federal Court was
certainly made with the best intentions to comply with the
obligations under the Hague Convention. However, the effect was, in
our opinion, that Article 13 of the Hague Convention was not
properly assessed in the light of the Convention and therefore the
judgment of the Federal Court of 16 August 2007 violated Article
8 of the European Convention on Human Rights irrespective of any
subsequent developments in the applicants’ situation.
DISSENTING OPINION OF JUDGE ZUPANČIČ
I have voted against finding a conditional violation of
Article 8, in other words, finding that there would be a
violation in the event of the enforcement of the Federal Court’s
judgment of 16 August 2007. In my opinion, for two reasons, there has
already been a violation of Article 8 of the Convention.
It is clear that the violation would have fully
materialised, that is to say, the Swiss court’s decision would
have been executed, were it not for this Court’s own imposition
of an interim measure (under Rule 39 of the Rules of Court).
In this and a few other senses the violation has
clearly been consummated in Switzerland.
This Court has never addressed, as potential
violations, mere executions of final judgments (the reverse is true,
however, for non-executions).
If a violation is found by this Court, it refers to the
final decision in the domestic jurisdiction – rather than its
mere execution.
In more practical terms, the hypothetical violation
found by the majority now probably prevents the applicants from
re-opening the proceedings in the domestic courts. Moreover, under
Swiss law, which has been in the laudable forefront of this
development, a finding of a clear violation by this Court, rather
than merely a hypothetical one concerning the execution of a final
judgment, would necessitate not only re-opening in a domestic court.
For it is now clear that such re-opening would also
require the Swiss domestic court to follow this Court’s
judgment, not only in its operative part but also in its reasoning.
If that were not the case – and this has also
become clear – the applicants could then come back to the
European Court of Human Rights and request that the domestic
judgment, such as it might be, be brought into line with the Court’s
judgment.
The second of those two reasons is not merely
pragmatic. It raises the important question of the extent to which
the judgments of the European Court of Human Rights are in fact
binding on national courts.
But it is of course the first reason which is
decisive, because it implies that the violation vel non for
this Court may hinge upon the simple fact of the execution vel non
of a final domestic judgment – and execution in the present
case has, moreover, been suspended only because of our own imposition
of an interim measure (under Rule 39).
My substantive objection to the majority judgment,
however, derives from its completely warped reliance on the case of
Maumousseau and Washington v. France (no. 39388/05, ECHR
2007-XIII).
Like cases should be decided alike. It is clear that
the fact patterns in both cases are analogous, except that the risk
for the mother in Maumousseau and Washington, had she returned
to the USA, would have been much greater, including possible arrest
at the border, not to mention the 25,000 US dollar deposit and
the fact that she could only have seen her child in the presence of a
guard in the courthouse for about half an hour – these
being just some of the draconian conditions imposed by the family
court judge in the first-instance family court of New York State.
If anything, the situation in the Maumousseau and
Washington case was considerably worse, when compared to the
situation in the present case.
It is therefore clear that the Neulinger and Shuruk
v. Switzerland case straightforwardly reverses the Section III
case of Maumousseau and Washington v. France.
This is very easy to prove. The respondent in the
present case, the Swiss Government, relied squarely on the Section
III judgment in Maumousseau and Washington (see paragraph 119
of the judgment).
In Maumousseau and Washington, the Section’s
majority – but see my dissenting opinion! – stated that
the aim of the Hague Convention was to prevent the “abducting
parent” from succeeding in legitimating, by the passage of time
operating in his or her favour, a de facto situation which he
or she had brought about unilaterally (nemo auditur propriam
turpitudinem allegans). The Section chose to disregard the best
interest of the child contingent upon the passage of time and other
factors concerning the father.
It follows that in terms of stare decisis, the
reliance of the Swiss Government upon Maumousseau and Washington
was inescapably logical.
The Swiss Government was free a fortiori to
take it for granted that the fact pattern in Neulinger and Shuruk,
when compared with the situation in Maumousseau and Washington,
was considerably less disadvantageous to the mother and to the child.
There the child had in the end been brutally snatched from the
hands of the mother and delivered to the father in New York, with
whom that girl, among other things, had never lived alone before.
Suffice it to say, because I explained my position in
that case, that the Swiss authorities in their stare
decisis reliance on Maumousseau and Washington had every
reason to believe that in Neulinger and Shuruk the Court would
a fortiori take the position that there would have been
no violation had the child in fact been sent back to Israel.
Inexplicably, the Grand Chamber panel rejected the
request for referral of Maumousseau and Washington.
Nevertheless, the issue, wrongly decided in
Maumousseau and Washington, has now ricocheted and the Court
has reached, despite the hypothetical nature of the violation found
here, a reasonably correct decision.
It follows inexorably that Neulinger and Shuruk is
a complete reversal of Maumousseau and Washington and its
“logic”.
It is certainly bizarre to quote Maumousseau and
Washington as if it were a case not only compatible with but
actually supportive of the outcome in Neulinger and Shuruk.
