23
Sep
10

Article 8 Of the European Convention on Human rights prevails on the Hague Convention on child abduction

The Grand Chamber of the European Court of Human Rights has issued, on July 6th 2010,  a major decision which has a significant impact on the interpretation and application of the Hague Abduction Convention within Europe and may well lead to a major split between the way that Convention is interpreted and applied within Europe versus the rest of the world.
The case is Neulinger & Shuruk v. Switzerland (Application no. 41615/07).
The ECHR has now ruled, in essence, that those provisions in the European Convention of Human Rights concerning the integrity of the family – and, in particular, Article 8 which gives everyone the right to respect for family life – trump the provisions of the Hague Abduction Convention.
The application relates to a child born in Israel in 2003 to a Swiss mother and an Israeli father. The parents had married in Israel in 2001. After the birth the mother alleged that the father had joined a radical, ultra-orthodox Jewish sect. Given her fears that the father would take the child abroad to a community of the sect, the mother sought and obtained in June 2004 an order prohibiting the removal of the child from the jurisdiction. The order was to endure throughout the minority of the child. The parents divorced in February 2005. A pre-existing order provisional custody order of 27 June 2004 was not amended. This recognized both parents as guardians, but the mother was given custody, the father access. On 20 March 2005 an arrest warrant was issued against the father for non-payment of maintenance. On 27 March the mother failed in an attempt to have the non-removal order lifted. On 24 June the mother secretly took the child to Switzerland. Their location was discovered in May 2006. On 30 May 2006 the family Court in Tel Aviv issued an order confirming the removal to have been wrongful. On 8 June the father filed his return petition. On 29 June the justice of the peace for the district of Lausanne declined to order the return of the child, finding the grave risk of harm exception to have been established. On 27 May 2007 the cantonal court in Vaud dismissed the father’s appeal, again relying on Article 13(1) b). On 16 August the Swiss Federal Court ordered the return of the child, finding no basis for a grave risk of harm: 5A_285/2007 /frs, Tribunal fédéral, IIè cour de droit civil, 16 August 2007, [INCADAT cite: HC/E/CH 955]. On 26 September mother and child petitioned the European Court of Human Rights. On 27 September 2007 the President of the Chamber indicated to the Swiss Government, on the basis of Art 39 of the Rules of the Court (Interim Measures), not to proceed with the return of the child. On 1 October the father withdrew his application for enforcement. [www.incadat.com]

By a 4:3 majority the Court ruled that there had not been a breach of the mother and child’s right to family life under Article 8 ECHR.



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