Article 8 of the ECHR – International child abduction

20 Pages·2016·0.57 MB·English

This project is funded by the Civil Justice
Programme of the European Union

5th Seminar on EU Family Law
Project JUST/2013/JCIV/AG/4642
25 and 26 January, Ljubljana

Ana Vilfan Vospernik, Research Division, the Jurisconsult’s Department, the ECHR1

Article 8 of the ECHR – International child abduction

The European Convention on Human Rights and children’s rights cases –
introductory remarks2

1. The European Court of Human Rights (“the Court”) is often called upon to decide children’s
rights cases. The provisions of the European Convention on Human Rights (“the ECHR or the
Convention”) which have shown to have particular relevance to children are Article 8, which
guarantees the right to respect for private and family life and Article 3, which in absolute terms
prohibits torture, inhuman and degrading treatment and punishment.
2. Guided by the principle of subsidiarity, the Court leaves the assessment of relevant facts
primarily to the national authorities and intervenes only when the decision of those authorities
do not appear Convention-compliant. Moreover, the Court does not operate in a vacuum and it
draws on other binding international legal instruments.
3. In addition to being attentive to standard-setting activities within the Council of Europe3, in
the application of the ECHR in children’s rights cases, the Court is particularly mindful of
specialised children’s rights instruments such as the UN Convention on the Rights of the Child
(“UNCRC4”) and the Hague Convention on Civil Aspects of International Child Abduction5
(“the Hague Convention”).

Article 8 (Right to respect for private and family life) provides:

1 The text does not bind the institution for which the author works.
2 Turković K and Grgić A, “Best interests of a child in the context of Article 8 ECHR”, in Mélanges En L’Honneur
De / Essays In Honour Of Dean Spielmann, Wolf Legal Publishers, Osterwijk, pp. 629-642.
3 Council of Europe, Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse
(Lanzarote Convention) CETS No. 201, 2007; Council of Europe, Convention on the Adoption of Children
(Revised), ETS No. 58, 2008; Council of Europe, European Convention on the Exercise of Children's Rights,
CETS No. 160, 1996; Council of Europe, Convention on Contact concerning Children, ETS No. 192, 2003;
Council of Europe, Convention on Recognition and Enforcement of Decisions concerning Custody of
Children and on Restoration of Custody of Children, CETS No. 105, 1980; Council of Europe, Committee of
Ministers (2010) Guidelines on child friendly justice, 17 November 2010.
4 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series,
vol. 1577, p. 3 .
5 Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child
Abduction, 25 October 1980, Hague XXVIII.
“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 wellbeing 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. ”

The structure of Article 8 in general
4. In order to invoke Article 8, an applicant must show that his or her complaint falls within
one of the four interests covered by that Article, namely: private life, family life, home or
correspondence.
5. The Court’s analysis is made according to the following steps:
6. First, the Court determines whether the applicant’s claim falls within the scope of Article.
Next, the Court examines whether there has been an interference with that right or whether the
State’s positive obligations to protect the right have been engaged.
7. Conditions upon which a State may interfere with the enjoyment of a protected right are set
out in paragraph 2 of Article 8. The legitimate aims which may justify an infringement are: “in
the interest 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.”
8. Limitations are allowed if they are “in accordance with the law” or “prescribed by law”.
This expression does not only necessitate compliance with domestic law, but also relates to the
quality of that law, requiring it to be compatible with the rule of law. The national law must
be clear, foreseeable, and adequately accessible.
9. Finally, the Court examines whether these limitations are “necessary in a democratic
society” for the protection of one of the objectives set out above. This implies the existence of
a “pressing social need” for the interference in question. The Court will also consider whether,
in the light of the case as a whole, the reasons adduced to justify them were “relevant and
sufficient” and whether the measures were proportionate to the legitimate aims pursued.
10. The Court will take into account the margin of appreciation left to the State authorities but
it is a duty of the respondent State to demonstrate the existence of the “pressing social need”
behind the interference.

The child’s best interest

11. The UN Convention on the Rights of the Child states [emphasis added]:
“Article 3 (1)
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.”

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12. The UNCRC does not offer a definition of the notion of the best interests of the child. The
notion refers generally to the well-being of a child. However, the final decision in a particular
case depends on a variety of individual circumstances, such as the age and the level of maturity
of the child, the presence or absence of parents, the child’s environment, etc.6
13. In 2013 the Committee on the Rights of the Child issued its General Comment no. 14 on
the rights of the child to have his or her best interest taken as a primary consideration in all
actions or decisions concerning children, both in the public and private sphere. Identifying
Article 3, paragraph 1 UNCRC as one of the four general principles for interpreting and
implementing all the rights of the child, the Committee defined the “best interests of the child”
as a dynamic threefold concept requiring context-specific assessment.
14. First of all, the best interest of the child must be seen as a self-executing substantive right,
which can be relied on before the courts. Secondly, it should be understood as an interpretative
principle. In other words, if a legal provision is open to more than one interpretation, the one
which most effectively serves the child’s best interests should be chosen. Finally, it must be
seen as a rule of procedure. In other words, whenever a decision is to be made that will affect
a specific child, the decision-making process must include an evaluation of the possible impact
of the decision on that child and must be accompanied by certain procedural guarantees. In
particular, States must explain how the right has been respected in their decision, that is, what
was considered to be in the child’s best interests, what criteria it was based on and how the
child’s interests have been weighed against other considerations.
15. Unlike the UNCRC, the ECHR does not expressly refer to “the best interests of the child”.
However, in its large body of case-law dealing with children’s rights, the Court has on
numerous occasions dealt with the “best interests” concept in various contexts – such as family
affairs, juvenile justice and migrant children7.

The international instruments concerning the child abduction

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

16. The relevant provisions of the Hague Convention8 state as follows:
“...
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

6. United Nations High Commissioner for Refugees (UNHCR) Guidelines on Formal Determination of the Best
Interests of the Child. http://www.unicef.org/violencestudy/pdf/BID%20Guidelines%20-
%20provisional%20realease%20May%2006.pdf.
7 Turković K and Grgić A, “Best interests of a child in the context of Article 8 ECHR”, in Mélanges En L’Honneur
De / Essays In Honour Of Dean Spielmann, Wolf Legal Publishers, Osterwijk, pp. 629-642.

8 The Hague Convention on the Civil Aspects of International Child Abduction
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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 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 –
a) the person, institution or other body having the care of the person of the child was not actually exercising
the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in
the removal or retention; or

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.…”

17. Child abduction refers to a situation in which a child is removed or retained across national
borders in breach of existing custody arrangements (Article 3 of the Hague Convention).
18. The Explanatory Report on the Hague Convention, prepared by Elisa Pérez-Vera and
published by The Hague Conference on Private International Law (HCCH) in 1982 (“the
Pérez-Vera Report”), seeks to throw into relief the principles which form the basis of the 1980
Convention and to provide those who must apply the Convention with a detailed commentary
on its provisions. It appears from this report that, in order to discourage the possibility for the
abducting parent to have his or her action recognised as lawful in the State to which the child
has been taken, the Convention enshrines, in addition to its preventive aspect, the restoration
of the status quo ante, by an order for immediate return of the child (six weeks under
Article 11 (1) of the Hague Convention), which would make it possible to restore the situation
that had been unilaterally and wrongfully changed.
19. Compliance with custody rights is almost entirely absent from the scope of this
Convention, as this matter is to be discussed before the relevant courts in the State of the child’s
habitual residence prior to removal.
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20. The philosophy of the Hague Convention is to fight against the multiplication of
international abductions, based always on a wish to protect children by acting as interpreter of
their real interests. Accordingly, the objective of prevention and immediate return corresponds
to a specific conception of “the child’s best interests”.
21. However, as the child’s removal may be justified for objective reasons which have to do
either with his or her person, or with the environment with which he or she is most closely
connected, the Convention allows for certain exceptions to the general obligations on the States
to ensure an immediate return. Since the return of the child is the basic principle of the
Convention, the exceptions to the general duty to secure it form an important element in
understanding the exact extent of this duty, and it is possible to distinguish exceptions which
derive their justification from three different principles. Firstly, the authorities of the requested
State are not bound to order the return of the child if the person requesting the return was not
actually exercising custody rights or where his or her behaviour shows acceptance of the new
situation. Secondly, the first paragraph, (b), and second paragraph of Article 13 contain
exceptions which clearly derive from a consideration of the interests of the child, to which the
Convention gives a definite content. Thus, the interest of the child in not being removed from
his or her habitual residence without sufficient guarantees of stability in the new environment
gives way before the primary interest of any person in not being exposed to physical or
psychological danger or being placed in an intolerable situation. Lastly, there is no obligation
to return a child when, in terms of Article 20, his or her return “would not be permitted by the
fundamental principles of the requested State relating to the protection of human rights and
fundamental freedoms”. The explanatory report, which sets out those exceptions, also
emphasises the margin of appreciation inherent in the judicial function9.
22. Further texts have been adopted by the Hague Conference on Private International Law to
provide guidance for the application of the Hague Convention.

Brussels II a (or) bis Regulation

23. The relevant provisions of the Charter of Fundamental Rights of the European Union
(“the EU”) provide:

“… Article 7
Respect for private and family life

Everyone has the right to respect for his or her private and family life, home and communications. …

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.

9 For further information, see X v. Latvia [GC], no. 27853/09, §§ 34- 36, ECHR 2013

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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. …”
24. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and
the recognition and enforcement of judgments in matrimonial matters and the matters of
parental responsibility10 (known as “Brussels IIa Regulation” or “the Brussels II bis
Regulation”) is a single legal instrument to help international couples resolve disputes over
the divorce and the custody of children.
25. It simplifies the procedure for the return of children who have been victims of wrongful
removal or retention. It provides for judgments on return that have been certified in the State
of origin to be recognised and enforceable in all other European Union Member States without
any further procedure being required.
It reads, in particular, as follows:
“Whereas …
(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation
are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This
means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence,
except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders
of parental responsibility.
(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions,
that the court having jurisdiction may transfer a case to a court of another Member State if this court is
better placed to hear the case. However, in this case the second court should not be allowed to transfer the
case to a third court. ...”

26. The most important instrument regulating child abduction under EU law11 is largely based
on the provisions of the Hague Convention. This regulation complements and takes precedence
over the Hague Convention in intra‑EU abduction cases (Recital 17 of the Preamble and
Article 60 (e)).
27. Although the Hague Convention remains the main child‑abduction instrument, in certain
respects Brussels II bis has “tightened” the jurisdictional rules in favour of the courts of
origin/habitual residence. Similar to the Hague Convention, the courts of the State where the
child was habitually resident immediately prior to improper removal/retention retain the
jurisdiction in cases of child abduction. The regulation maintains the same exceptions to the
return as those included in the Hague Convention.
28. As with all other EU legal instruments, Brussels II bis must be interpreted in accordance
with the provisions of the EU Charter of Fundamental Rights, in particular Article 24. The
Court of Justice of the EU (“the CJEU”) has had the opportunity to clarify the interpretation of
Article 24 in the context of child abductions. In the Aguirre Zarraga Case, the CJEU ruled that
the right of the child to be heard, enshrined in Article 24 of the Charter, requires that the legal

10 Brussels IIa Regulation
11 This text has been taken from the Handbook on European law relating to the rights of the child, prepared jointly
by the European Union Agency for Fundamental Rights (FRA) and the Council of Europe, together with the
Registry of the ECHR, published on 20 November 2015, pp. 86-91
www.echr.coe.int/Documents/Handbook_rights_child_ENG.pdf

 6 
procedures and conditions which enable children to express their views freely be made
available to them, and that those views be obtained by the court.
29. According to the CJEU however, it is only for the courts of the child’s habitual residence
to examine the lawfulness of their own judgments in the light of the EU Charter of Fundamental
Rights and the Brussels II bis Regulation. According to the mutual trust principle, Member
States’ legal systems should provide effective and equivalent protection of fundamental rights.
Therefore, the interested parties have to bring any human rights‑based challenge before the
courts which have jurisdiction over the merits of the custody dispute pursuant to the regulation.
The CJEU ruled that the court of the Member State to which the child had been wrongfully
removed could not oppose the enforcement of a certified judgement, ordering the return of the
child, since the assessment of whether there was an infringement of these provisions fell
exclusively within the jurisdiction of the State from which the child had been removed.

General case-law principles concerning the international child abduction

The ECHR case-law principles in cases involving international child abduction
X v. Latvia [GC], §§ 92 -108

30. In matters of international child abduction, the obligations that Article 8 of the ECHR
imposes on the Contracting States must be interpreted taking into account, in particular, the
Hague Convention (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), the Convention on the
Rights of the Child (see Maire v. Portugal, no. 48206/99, § 72, ECHR 2003-VII) and the
relevant rules and principles of international law applicable in relations between the
Contracting Parties.
31. 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 the public order – has been struck, within
the margin of appreciation afforded to States in such matters (see Maumousseau and
Washington v. France, no. 39388/05, § 62, 6 December 2007), bearing in mind, however, that
the child’s best interests must be the primary consideration and that the objectives of prevention
and immediate return correspond to a specific conception of “the best interests of the child” (X
v. Latvia [GC], no. 27853/09, § 95, ECHR 2013).
32. In X v. Latvia [GC] the Court found that there exists a broad consensus – including in
international law – in support of the idea that in all decisions concerning children, their best
interests must be paramount (§ 96). The parents’ interests, especially in having regular contact
with their child, nevertheless remain a factor when balancing the various interests at stake
(ibid.). For example, parents must have an adequate opportunity to participate in the decision-
making process (see, López Guió v. Slovakia, no. 10280/12, 3 June 2014).
33. The same philosophy is inherent in the Hague Convention, which associates this interest
with restoration of the status quo by means of a decision ordering the child’s immediate return
to his or her country of habitual residence in the event of unlawful abduction, while taking
account of the fact that non-return may sometimes prove justified for objective reasons that
correspond to the child’s interests, thus explaining the existence of exceptions, specifically in
the event of 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 (Article 13, first
paragraph, (b)).
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34. The Court further noted that the European Union subscribes to the same philosophy, in the
framework of a system involving only European Union member States and based on a principle
of mutual trust. The Brussels II bis Regulation, whose rules on child abduction supplement
those already laid down in the Hague Convention, likewise refers in its Preamble to the best
interests of the child, while Article 24 § 2 of the Charter of Fundamental Rights emphasises
that in all actions relating to children the child’s best interests must be a primary
consideration12.
35. It followed directly not only from Article 8 of the Convention but also from the Hague
Convention itself, given the exceptions expressly enshrined therein to the principle of the
child’s prompt return to his or her country of habitual residence, that such a return cannot be
ordered automatically or mechanically (see Maumousseau and Washington, § 72, and
Neulinger and Shuruk, § 138). As the Court reiterated in Neulinger and Shuruk (§ 140), the
obligations incumbent on States in this connection were defined in Maumousseau and
Washington (§ 83).
36. The Court further observed that the Grand Chamber judgment in Neulinger and Shuruk (§
139) to which a number of subsequent judgments refer may and has indeed been read as
suggesting that the domestic courts were required to conduct an in-depth examination of the
entire family situation and of a whole series of factors. That wording had already been used by
a Chamber in Maumousseau and Washington (§ 74), such an in-depth examination having, in
fact, been carried out by the national courts.
37. Against this background the Court considered it opportune to clarify that its finding in
paragraph 139 of Neulinger and Shuruk does not in itself set out any principle for the
application of the Hague Convention by the domestic courts.
38. In order to achieve a harmonious interpretation of the European Convention and the Hague
Convention, the factors capable of constituting an exception to the child’s immediate return in
application of Articles 12, 13 and 20 of the Hague Convention have, first of all, genuinely to
be taken into account by the requested court, which has to issue a decision that is sufficiently
reasoned on this point, and then to be evaluated in the light of Article 8. It follows that Article
8 of the ECHR imposes on the domestic authorities a procedural obligation, requiring that,
when assessing an application for a child’s return, the courts have to consider arguable
allegations of a “grave risk” for the child in the event of return and make a ruling giving specific
reasons. As to the exact nature of the “grave risk”, the exception provided for in Article 13 (b)
of the Hague Convention concerns only the situations which go beyond what a child could
reasonably bear (see X. v. Latvia [GC], §§ 106-107).
39. The Court considers that a harmonious interpretation of the European Convention and the
Hague Convention (see paragraph 94 above) can be achieved provided that the following two
conditions are observed. Firstly, the factors capable of constituting an exception to the child’s
immediate return in application of Articles 12, 13 and 20 of the Hague Convention, particularly
where they are raised by one of the parties to the proceedings, must genuinely be taken into
account by the requested court. That court must then make a decision that is sufficiently
reasoned on this point, in order to enable the Court to verify that those questions have been
effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the
Convention (see Neulinger and Shuruk, § 133).

12 Garlicki L, “Two Conventions and one Regulation (on human rights aspect of international child abduction”,
in Mélanges En L’Honneur De / Essays In Honour Of Dean Spielmann, Wolf Legal Publishers, Osterwijk, pp.
217-228, and Silvis J. “Prevention of child abduction, return to the State of origin”, ibid., pp. 603-614
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40. Furthermore, as the Preamble to the Hague Convention provides for children’s return “to
the State of their habitual residence”, the courts must satisfy themselves that adequate
safeguards are convincingly provided in that country, and, in the event of a known risk, that
tangible protection measures are put in place.
Case-law extracts

X v. Latvia [GC], no. 27853/09, ECHR 2013

Failure to conduct detailed examination of all relevant points when deciding whether to
return a child pursuant to Articles 12, 13 and 20 of the Hague Convention
The applicant lived in Australia and in 2005 gave birth to a daughter while living with her
partner T. The child’s birth certificate did not state the father’s name and no paternity test was
carried out. In 2008 the applicant left Australia with her daughter and returned to her native
Latvia. T. then filed a claim with the Australian courts seeking to establish his parental rights
in respect of the child, alleging that the applicant had taken the child without his consent when
leaving Australia, contrary to the Hague Convention. The Australian courts decided that T. and
the applicant had joint custody of the child and that the case would be further reviewed once
the child was returned to Australia. When the competent Latvian authorities received
notification from the Australian authorities, they heard representations from the applicant, who
contested the applicability of the Hague Convention on the ground that she had been the child’s
sole guardian. The Latvian courts granted T.’s request, concluding that it was not for them to
challenge the conclusions reached by the Australian authorities concerning his parental
responsibility. Consequently, the applicant was ordered to return the child to Australia within
six weeks. In March 2009 T. met the applicant, took the child and returned with her to Australia.
Ultimately, the Australian courts ruled that T. was the sole guardian and that the applicant was
only allowed to visit the child under the supervision of social services and was not allowed to
speak to her in Latvian.
The Court was called on to examine whether the interference with the applicant’s rights under
Article 8, resulting from the decisions of the national courts, had been “necessary in a
democratic society”. To that end, the Court reiterated that, in determining whether the decisions
of the national courts had struck the fair balance that must exist between the competing interests
at stake – those of the child, of the two parents, and of public order – within the margin of
appreciation afforded to States in such matters, the best interests of the child had to be of
primary consideration. In that connection, in order to achieve a harmonious interpretation of
the European Convention and the Hague Convention, the factors capable of constituting an
exception to the child’s immediate return in application of Articles 12, 13 and 20 of the said
Convention had, first of all, genuinely to be taken into account by the requested court, which
had to issue a decision that was sufficiently reasoned on this point, and then to be evaluated in
the light of Article 8 of the European Convention. It followed that Article 8 of the Convention
imposed on the domestic authorities a procedural obligation, requiring that, when assessing an
application for a child’s return, the courts had to consider arguable allegations of a “grave risk”
for the child in the event of return and make a ruling giving specific reasons. As to the exact
nature of the “grave risk”, the exception provided for in Article 13 (b) of the Hague Convention
concerned only the situations which go beyond what a child could reasonably bear.
In the present case, the Court noted that, before the Latvian courts, the applicant had adduced
several factors to establish that the child’s return to Australia would entail a “grave risk” for
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her child; she had also submitted that T. had criminal convictions and referred to instances of
ill-treatment by him. In particular, in her appeal pleadings, the applicant had submitted a
psychologist’s certificate concluding that there existed a risk of trauma for the child in the event
of immediate separation from her mother. Although it was for the national courts to verify the
existence of a “grave risk” for the child, and the psychological report was directly linked to the
best interests of the child, the regional court had refused to examine the conclusions of that
report in the light of the provisions of Article 13 (b) of the Hague Convention. At the same
time, the national courts had also failed to deal with the issue of whether it was possible for the
mother to follow her daughter to Australia and to maintain contact with her. As the national
courts had failed to carry out an effective examination of the applicant’s allegations, the
decision-making process under domestic law did not satisfy the procedural requirements
inherent in Article 8 of the Convention, and the applicant had therefore suffered a
disproportionate interference with her right to respect for her family life.
Violation of Article 8.
Just satisfaction: EUR 2,000 in respect of the costs and expenses

Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, ECHR 2010

Order for return of child with mother to father’s country of residence from which it had been
wrongly removed
The first applicant, a Swiss national, settled in Israel, where she got married and the couple had
a son. When she feared that the child (the second applicant) would be taken by his father to an
ultra-orthodox community abroad, known for its zealous proselytising, the Family Court
imposed a ban on the child’s removal from Israel until he attained his majority. The first
applicant was awarded temporary custody, and parental authority was to be exercised by both
parents jointly. The father’s access rights were subsequently restricted on account of his
threatening behaviour. The parents divorced and the first applicant secretly left Israel for
Switzerland with her son. At last instance, the Swiss Federal Court ordered the first applicant
to return the child to Israel.
In the opinion of the national courts and experts, the child’s return to Israel could be envisaged
only if he was accompanied by his mother. The measure in question remained within the margin
of appreciation afforded to national authorities in such matters. Nevertheless, in order to assess
compliance with Article 8, it was also necessary to take into account any developments since
the Federal Court’s judgment ordering the child’s return.
The Court took the view that it could be guided on this point, mutatis mutandis, by its case-law
on the expulsion of aliens and the criteria on which to assess the proportionality of an expulsion
order against a minor who had settled in the host State. In the present case, the child was a
Swiss national and had settled very well in the country where he had been living continuously
for about four years. Even though he was at an age (seven years old) where he still had a
significant capacity for adaptation, the fact of being uprooted again would probably have
serious consequences for him and had to be weighed against any benefit that he was likely to
gain from it. In this connection, it was noteworthy that restrictions had been imposed on the
father’s right of access before the child’s abduction. Moreover, the father had remarried twice
since then and was now a father again but had failed to pay maintenance for his daughter. The
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