International Child Abduction

The European Court of Human Rights (ECHR) in July this year has caused much controversy in a decision handed down by the Grand Chamber concerning an international child abduction case.

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) applies to cases involving children that have been wrongfully removed from one signatory state to another, contrary to the custodial rights applicable to the child.

Normally, the state where the child has been moved to would order the return of the child to its country of habitual residence, unless implementing such an order would result in exposure of physical or psychological harm to the child. The decision of Neulinger & Shuruk v. Switzerland (Application no. 41615/07), however, has added a new aspect to be considered in light of the Hague Convention, when a parent is seeking the return of a child wrongfully removed to another country. Whilst residing in Israel, the father became a member of an extremist sect, which became the cause of the marriage breakdown. A bitter custody dispute followed in which the mother was awarded custody and the father had limited access to the child.

The mother also sought to discharge an order preventing the child’s removal from Israel as she wished to take the child to Switzerland to visit family. This was refused. The mother travelled with the child to Switzerland anyway and the father approached the Israel Central Authority for the return of the child pursuant to the principles of the Hague Convention. The Central Authority eventually found that there was no grave risk and that the mother should return the child to Israel.

The mother then brought an application in the ECHR seeking a stay of the order for the return of the child. The ECHR in essence ruled that the Hague Convention should be interpreted in a manner that does not conflict with international law principles, and therefore, the Court was obliged to also consider the European Convention on Human Rights, which preserved the right to family life. In interpreting the UN and European Conventions and case law, the ECHR was of the view that the child’s best interest was paramount and to be assessed at the time of the hearing and not at the time of abduction. Because there were doubts about the father’s ability to care for the child, and the criminal prosecution of the mother if she returned to Israel, the ECHR determined that an order requiring the mother and child to return to Israel was not in the child’s best interests and contrary to the rights granted by the European Convention.

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