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ECtHR / Application no. 41615/07 / Judgement

Neulinger and Shuruk v Switzerland

Policy area:
Education, training, youth, sport
Deciding Body type:
European Court of Human Rights
Deciding Body:
European Court of Human Rights
Type:
Decision
Decision date:
06/07/2010
ECLI:
ECLI:CE:ECHR:2010:0706JUD004161507
Key facts of the case:
 

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

8. On 14 February 2008 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 Judges Kovler, Steiner and 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.

12. The applicants and the Government each filed observations on the merits.

13. 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.

14. A hearing took place in public in the Human Rights Building, Strasbourg, on 7 October 2009 (Rule 59 § 3).

Outcome of the case:

FOR THESE REASONS, THE COURT

1. 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;

2. Holds unanimously that there is no need to examine separately the applicants’ complaint under Article 6;

3. 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;

4.Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.

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 the event of a 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.

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

1. 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:

“[I]n 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”[1].

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.

2. 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.

3. 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.

4. 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) Firstly, 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) Secondly, 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

1. 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 a 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.

2. 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.

3. 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.

4. 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-rearing 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).

5. 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.

6. 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.

7. 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.

8. 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

1. 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.

2. 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).

3. In this and a few other senses the violation has clearly been consummated in Switzerland.

4. This Court has never addressed, as potential violations, mere executions of final judgments (the reverse is true, however, for non-executions).

5. If a violation is found by this Court, it refers to the final decision in the domestic jurisdiction – rather than its mere execution.

6. In more practical terms, the hypothetical violation found by the majority now probably prevents the applicants from reopening 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 reopening in a domestic court.

7. For it is now clear that such reopening would also require the Swiss domestic court to follow this Court’s judgment, not only in its operative part but also in its reasoning.

8. 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.

9. 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.

10. 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).

11. My substantive objection to the majority judgment, however, derives from its completely warped reliance on Maumousseau and Washington v. France (no. 39388/05, 6 December 2007).

12. 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 United States of America, would have been much greater, including possible arrest at the border, not to mention the 25,000 United States 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.

13. If anything, the situation in the Maumousseau and Washington case was considerably worse, when compared to the situation in the present case.

14. It is therefore clear that the Neulinger and Shuruk v. Switzerland case straightforwardly reverses the Section III case of Maumousseau and Washington v. France.

15. 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).

16. 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.

17. It follows that in terms of stare decisis, the reliance of the Swiss Government upon Maumousseau and Washington was inescapably logical.

18. 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 the girl, among other things, had never lived alone before.

19. Suffice it to say, as I have already explained my position in the Maumousseau and Washington case, that the Swiss authorities in their stare decisis reliance on the latter 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.

20. Inexplicably, the Grand Chamber panel rejected the request for referral of Maumousseau and Washington.

21. 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.

22. It follows inexorably that Neulinger and Shuruk is a complete reversal of Maumousseau and Washington and its “logic”.

23. 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.