Neulinger and another v Switzerland
| Judge | JUDGES COSTA (PRESIDENT),BRATZA,LORENZEN,TULKENS,CASADEVALL,CABRAL BARRETO,BIRSAN,ZUPANCIC,FURA,MYJER,JOCIENE,BERRO-LEFEVRE,HIRVELA,MALINVERNI,SAJO,TSOTSORIA,KALAYDJIEVA |
| Judgment Date | 06 July 2010 |
Child abduction – Wrongful removal – Right to respect for family life – First applicant having Swiss nationality – First applicant settling in Israel, marrying Israeli national and giving birth to second applicant – Second applicant having Israeli and Swiss nationality – First applicant’s marriage breaking down and applicants secretly leaving Israel for Switzerland – Swiss court ordering return of second applicant to Israel – Whether return of second applicant to Israel violating applicants’ right to respect for their family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8 – Convention on the Civil Aspects of International Child Abduction 1980, art 13.
The first applicant, who was Jewish and a Swiss national, settled in Israel in 1999. There she met and married an Israeli national, who was also Jewish. In 2003, their son, N (the second applicant), was born. He had Israeli and Swiss nationality. Marital difficulties arose and, fearing that her husband would take N abroad for religious indoctrination, the first applicant applied to the family court for an order to prevent N’s removal from Israel. The court made an order that was to expire when N attained his majority, unless annulled by the court in the meantime. The court later granted the first applicant custody of N and granted a right of visitation to the father. In 2005, social services were obliged to intervene, instructing the parents to live apart in the interests of the child. The first applicant filed a complaint with the police accusing the father of assault, and the family court subsequently prohibited him from, inter alia, entering N’s nursery school or the first applicant’s flat. Restrictions were also imposed on the access right granted to the father, who was authorised to see the child only twice a week under the supervision of the social services at a contact centre. The couple divorced with no change in the attribution of guardianship. The father defaulted on his maintenance payments to the first applicant and an arrest warrant was issued against him. The first applicant applied to the family court for the annulment of the order prohibiting the removal of N from Israel, but her application was dismissed and, in June 2005, she secretly left Israel for Switzerland with N. In 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 1980. In a decision of May 2006, delivered upon an application by N’s father, the family court in Israel held that N’s removal from Israel without the father’s consent had been wrongful within the meaning of art 3 of the Hague Convention. Abduction was an offence under Israeli law and carried a possible penalty of imprisonment. The following month, N’s father lodged an application with the Lausanne District Justice of the Peace seeking an order for N’s return to Israel, but his application was dismissed. The court took the view that, while N’s removal had been wrongful within the meaning of art 3, it had to apply art 13(b) of that Convention, as there was a grave risk that N’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The cantonal court dismissed the father’s appeal against that decision. Having carried out an additional investigation, and taking into account an expert’s report, it took the view that N’s return carried a grave risk of psychological harm and would place him in an intolerable situation. It therefore considered that the conditions of art 13(b) were met. The father lodged a civil appeal with the federal court, which allowed his appeal and ordered N’s return to Israel on the basis that, as there were no grounds objectively justifying the first applicant’s refusal to return to Israel, she could reasonably be expected to return to that country with her child. The applicants complained to the European Court of Human Rights, inter alia, that by ordering N’s return to Israel, the federal court had breached their right to respect for their family life as guaranteed by art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. On 8 January 2009, a Chamber of the First Section of the court found (by a majority) that there had been no violation of art 8. The case was referred to the Grand Chamber. In a provisional-measures order of 29 June 2009, the President of the Lausanne District Court found that, despite his legal battle, the father had never sought to see N and had lost interest in the case. It was, accordingly, decided that his right of access would be suspended, that the first applicant would be granted exclusive parental authority and that, provisionally, N should reside at her address in Lausanne. Before the Grand Chamber, it was not in dispute that the federal court’s order for N’s return constituted an ‘interference’ within the meaning of art 8(2) of the European Convention; the main issues for determination were whether that interference 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.
Held (By a majority) – The federal court’s judgment was based mainly on the Hague Convention, which had been incorporated into Swiss law. The view of the domestic courts that the removal had been wrongful within the meaning of that Convention had been confirmed by the Chamber because: (i) even though the first applicant had custody, at least on a provisional basis, the father had had guardianship jointly with her under Israeli law; and (ii) N’s removal rendered illusory, in practice, the right of access that had
been granted to the father. The concept of custody rights, within the meaning of the Hague Convention, had an autonomous meaning since it had to be applied to all the parties to that Convention and might be defined differently in their various legal systems. In the instant case, it appeared that in Israeli law the institution of guardianship was comparable to custody rights under art 5(a) of the Hague Convention, which referred in its definition to the right ‘to determine the child’s place of residence’. Such right was also included in guardianship. In the instant case, that right was breached because it was to be exercised jointly by both parents. Furthermore, even though in principle the Hague Convention applied only to breaches of custody rights, it could be seen from its Preamble that it also sought to protect access rights. There was no doubt that N’s removal had hindered the possible exercise by the father of the right of access that he had been granted. The first applicant had therefore removed N from Israel to Switzerland ‘wrongfully’, within the meaning of art 3 of the Hague Convention. She had committed an abduction for the purposes of that Convention, which was therefore applicable in the instant case. Accordingly, in ordering N’s return under the Hague Convention, the impugned measure had a sufficient legal basis. The decision by the federal court to return N also pursued the legitimate aim of protecting the rights and freedoms of N and his father. The European Convention had to be interpreted in harmony with the general principles of international law. In matters of international child abduction, the obligations that art 8 imposed on the contracting states had to be interpreted taking into account, in particular, the Hague Convention and the Convention on the Rights of the Child. However, the court also had to bear in mind the special character of the European Convention as an instrument of European public order for the protection of individual human beings and its own mission ‘to ensure the observance of the engagements undertaken by the High Contracting Parties’ to the Convention. For that reason, the court was 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, had secured the guarantees of the European Convention and especially those of art 8. In that area the decisive issue was whether a fair balance between the competing interests at stake—those of the child, of the two parents, and of public order—had been struck, within the margin of appreciation afforded to states in such matters, bearing in mind, however, that the child’s best interests had to be the primary consideration. The child’s best interests could, depending on their nature and seriousness, override those of the parents. The parents’ interests, especially in having regular contact with their child, nevertheless remained a factor when balancing the various interests at stake. The child’s interest comprised two limbs. On the one hand, it dictated that the child’s ties with its family had to be maintained, except in cases where the family had proved particularly unfit. It followed that family ties could only be severed in very exceptional circumstances and that everything had to be done to preserve personal
relations and, if and when appropriate, to ‘rebuild’ the family. On the other hand, it was clearly also in the child’s interest to ensure its development in a sound environment, and a parent could not be entitled under art 8 to have such measures taken as would harm the child’s health and development. The concept of the child’s best interests was also an underlying principle of the Hague Convention. Moreover, certain domestic courts had expressly incorporated that concept into the application of the term ‘grave risk’ under art 13(b) of the Hague Convention. Article 13 thus had to be interpreted in conformity with the European Convention. It followed from art 8 that a child’s return could not be ordered automatically or mechanically when the Hague Convention was applicable. The child’s best...
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