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The European Court of Human Rights and the Child Abduction Convention

Edwin Freedman – 2011

IAML European Chapter Meeting- Strasbourg, April, 2011

The European Court of Human Rights and the Hague Convention: Civil Aspects of International Child Abduction

I Jurisdiction

The ECHR is not an appellate forum for judgments regarding the Hague Convention. The ECHR may adjudicate actions in which there is an alleged violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (EC). Article 8 guarantees the right to respect for private and family life. The operative clause is paragraph 8(2), which prohibits the interference by a public authority with the exercise of this right. There is an exception to this provision based on the interests of public safety, the prevention of crime, the protection of health or morals or the protection of the rights and freedoms of others.

Article 6 of the EC guarantees a right to a fair trial within a reasonable time.

Where the courts of a member state deny a petition under The Hague Convention for the return of abducted children, a claim is usually made that the denial constitutes a violation of either Article 8 or Article 6 of the European Convention.

II       Relief

Article 41 of the EC provides the relief which the Court may order if a violation is found. The Court, if necessary, shall “afford just satisfaction to the injured party”, where domestic law does not allow complete reparation to be made. Just satisfaction is defined by the Rules of Court as monetary compensation. Damages are awarded to compensate the wronged party for the actual harmful consequences of the violation, not to punish the offending state. Therefore, no punitive damages are awarded.

III  Damages

Compensation is divided into two categories: pecuniary and non-pecuniary damages. Pecuniary damages are meant to restore the applicant to the position in which he or she would have been had the violation not occurred. The damages can be for losses actually incurred and for anticipated future losses. Non-pecuniary damages are intended to provide financial compensation for mental or physical suffering. Thus, where a country is found to violate Art. 8 by wrongfully rejecting a Hague Petition, the applicant will at best receive a check instead of a child.

IV Child abduction and Article 8 of the EC

Child abduction cases in which the ECHR has found that a state violated Article 8 of the EC fall into two categories; improper interpretation of the Hague Convention or failure of the state to implement the decisions of its courts. The case of Monory v. Hungary & Romania, Application no. 71099/01, (April 5th, 2005) is illustrative of the first category. Applicant and his wife were Hungarian residents who married and had a daughter in Hungary. The parents had joint custody of the child under Hungarian law. At the conclusion of an agreed upon visit to Romania, the mother unlawfully retained the child and initiated divorce proceedings there. The father countered with a Hague petition for the child’s return to Hungary. In addition, he commenced custody proceedings in Hungary.

The Romanian courts rejected the father’s Hague petition. They concluded that the retention was not unlawful as the father did not have exclusive custody rights under Hungarian Law. They therefore held that Article 3 of the Hague Convention was not applicable.

The ECHR found that the Romanian courts so misinterpreted Article 3 of the Hague Convention that it violated the guaranties of Article 8 of the EC. The ECHR will not substitute its interpretation of the Hague Convention for that of the state courts where that interpretation is reasonable. Where the application of the Hague Convention is clearly erroneous, the ECHR will find a violation of Article 8.

The applicant claimed 80,000. EUR for non-pecuniary damages and 4,550. EUR for costs and expenses. The ECHR awarded him 15,000. EUR for non-pecuniary damages. As to attorney’s fees and expenses, the Court ruled that though the applicant failed to submit supporting documents, it accepted that some costs must have been incurred. It therefore awarded him a total of 1,000. EUR for fees and expenses.

The failure to enforce a custody judgment in Bajrami v. Albania, (2008) 47 E.H.R.R 22, was held to be a violation of Article 8 of the EC. The applicant father initiated various legal proceedings to prevent the unlawful removal of his daughter from Albania by the mother. During the course of three years, Albania failed to take any action which would secure the applicant’s parental rights, which included an ex parte custody order. The mother abducted the child and did not reveal her location.

The ECHR ruled that the efforts of the Albanian authorities were neither adequate nor effective in discharging their positive obligation under Article 8 to insure the applicant’s parental rights. The father was awarded 15,000. EUR for non-pecuniary damages and 10,000. EUR for legal costs incurred in Albania and the ECHR.

V Child abduction and Article 6 of the EC

Violations of Article 6 of the EC generally involve Hague proceedings that the state failed to conclude within two years of commencement. As Hague Convention proceedings are summary in nature, proceedings which take two or more years to complete are usually found to violate the applicant’s rights to a fair hearing within a reasonable time.

A case in point is Deak v. Romania and the United Kingdom, Application no. 19055/05. The parties were both Romanian. They were divorced in Romania and custody of the couple’s son was given to the mother with the father having regular visitation. In December, 2002, two years after the divorce, the mother unlawfully removed the child to England. The English court requested a legal opinion regarding Romanian Law as it applied to applicant’s custody rights. An Article 15 application under the Hague Convention was filed in Romania. The final ruling on the Article 15 application was rendered in July, 2005. The Romanian courts ruled that the applicant did not have custody rights as defined by Article 3 of the Hague Convention.

The lower English courts rejected the Article 15 ruling of the Romanian courts and accepted the opinion of an expert who reached the opposite conclusion. The House of Lords overturned that decision in November, 2006 and rejected the father’s Hague petition based on the Article 15 ruling of the Romanian court.

In his application to the ECHR, the father claimed his Article 8 rights were breached by both the English and Romanian courts. He further claimed that the excessively long proceedings in both the English and Romanian courts constituted a violation of Article 6 of the EC.

The ECHR rejected the claims under Article 8. It held that it is not the function of the Court to deal with errors of fact or law by a national court unless such error infringes upon a freedom protected by the EC. The Court held that the Romanian courts were neither unreasonable nor contrary to the general rules of fairness. There was also no indication of arbitrariness or unreasonableness in the decisions of the English courts.

The Court did find a violation of Article 6 by the Romanian courts, which took two and a half years to render a final decision on the Article 15 petition. It held that the extensive delay could not be imputed to the English court, which had held its proceedings in abeyance while waiting for the ruling of the Romanian courts.

The applicant’s claim of 500,000. EUR for non-pecuniary damages resulted in an award against Romania for 1,000. EUR. The 300,000. EUR claim for pecuniary damages was rejected in toto. Costs and expenses for legal proceedings were claimed in the amount of 106,947,44. EUR. The award for costs was made in the amount of 300. EUR.

VI Article 13 (b) of the Hague Convention and Article 8 of the EC.

The ECHR has also been requested to intercede by applicants who allege that an order to return made by a state court under The Hague Convention violated their EC rights. The Hague Convention’s stated purpose is to restore the status quo prior to an unlawful removal. The decision regarding who is the more suitable parent to receive custody is reserved for the court in the child’s state of habitual residence.

Hague Convention proceedings are meant to determine jurisdiction, not the best interests of the child. Therefore, the defenses under The Hague Convention, particularly Article 13(b), are to be narrowly construed.

Applicants before the ECHR have claimed that the strict interpretation of Article 13(b) and the summary nature of the proceedings constitute a violation of Article 8 of the EC.

The ECHR has generally rejected these claims (Paradis and others v. Germany no. 4783/03, May 15th, 2003). The Court has held that it “is entirely in agreement with the philosophy underlying the Hague Convention”. (Maumousseau and Washington v. France, Application no. 39388/05, December 6, 2007).

The case of Maumousseau entails a particularly extensive analysis of the nexis between Article 13(b) of the Hague Convention and the 1989 UN Convention on the Rights of the child, according to which “the best interests of the child” is paramount in all matters in which children are concerned. The ECHR adopted the view of the drafters of the Hague Convention; namely that inherent in the best interests test is the concept that children should not be unilaterally removed from their habitual residence. The Court further stated that the “aim is indeed to prevent the abducting parent from succeeding in obtaining legal recognition by the passage of time, of a de facto situation that she or he unilaterally created”.

VII Neulinger and Shuruk v. Switzerland

The Neulinger case, Application no. 41615/07 was decided on July 6th, 2010. It is a Grand Chamber decision, overturning a 4-3 First Chamber decision. The case involves a Swiss mother married to an Israeli father. Their son was born in Israel in 2003.

The parties began divorce proceedings in Israel in June, 2004. The mother received temporary custody but the court issued a ne exeat order prohibiting the removal of the son from Israel. Despite the order, the mother unlawfully removed the child from Israel in June, 2005. The father immediately contacted the Israeli Central Authority for the Hague Convention, in an attempt to locate the child.

Almost two years later, Interpol Berne advised their Israeli counterpart that the child was in Switzerland. On June 8th, 2006, some two weeks after being notified as to his son’s whereabouts, the father filed a petition in Lausanne for the return of his son under the Hague Convention. The father’s petition for return was rejected by both the trial court and the Cantonal Court in Switzerland. In a judgment of August 16th, 2007 the Federal Court of Switzerland overturned the decisions of the lower courts and ordered the return of the child to Israel by the end of September, 2007.

On September 26th, 2007 the mother filed her application with the ECHR alleging a violation of Article 8 of the EC. The next day, the ECHR notified the Swiss Government that it was desirable not to enforce the order of return. Switzerland complied with the request.

The First Chamber issued its decision in January, 2009, rejecting the mother’s application. The mother’s request to refer the case to the Grand Chamber was granted. A hearing took place on October 7th, 2009. The Grand Chamber issued its judgment on July 6th, 2010, almost three years after the initial application.

The Grand Chamber’s judgment reinterprets the meaning previously attributed to the best interests test when applied to The Hague Convention. First, the Court introduces a balancing test between what it sees as competing interests: those of the child, of the two parents and of public order.

Second, the court relegates the principles of The Hague Convention to just one element in assessing the best interests of the child. It holds that Article 13(b) of the Hague Convention is now to be interpreted in conformity with Article 8 of the EC.

The most troubling aspect of the Court’s decision is its holding, contrary to accepted case law, that its assessment of the Article 8 claim must take into account the events that transpired subsequent to the decision of the Swiss Federal Court. The Court questions the pertinence of The Hague Convention decision in situations where the child has remained in the requested state a considerable amount of time after an order of return was made. The Court found that it is no longer “beneficial” to force the child to relocate to Israel, given the passage of time since the Federal Court’s decision. The ECHR used the delays caused by its own cumbersome procedures as a legal basis for ruling against the return of the child.

VIII The EC and Balance of Interests

The balancing of interests test introduced in Neulinger has now been adopted as the normative approach by the ECHR when ruling in Hague Convention cases. Raban v. Romania, Application no. 25 437/08, October 26th, 2010 involves an Israeli father who was married to a Romanian mother. Their two children were born and raised in Israel. The mother travelled with the children to Romania on a visit and was scheduled to return in October, 2006. In November of that year, the mother advised the father that she was not returning.

The father filed a petition for return under The Hague Convention in the Bucharest District Court in February, 2007. The father’s petition was granted but the mother lodged an appeal with the Bucharest Court of Appeals. On January 7th, 2008, the appellate court, in a 2-1 decision, overturned the district court judgment.

Although the trial court ruled that the father had not consented to the children remaining in Romania, the appellate court, on the same evidence, overturned this finding of fact.

The Romanian appellate court found that although the petition was filed in a timely manner, the children had adopted to their new environment. Finally, the appellate court found that returning the children to Israel would violate the grave physical risk defense under Article 13(b) due to the terrorist attacks which occur there. The decision regarding the terrorist attacks was based solely on an Amnesty International report and a U.S. State Department travel warning. Neither document was introduced during any of the legal proceedings, nor was the father given an opportunity to respond to those reports.

The application to the ECHR was submitted on May 28th, 2008. Almost two and a half years later, in October, 2010, the Third Section gave its judgment. The applicant alleged a violation of his family rights under Article 8 of the EC and a violation of his rights to due process under Article 6. The ECHR rejected both arguments. Citing the holdings in Neulinger, the Court stated that the provisions of The Hague Convention and the UN Convention on Children’s Rights must be equally considered when weighing an application under Article 8.

The Court also reiterated the balancing test. This time, however, it went one step further than Neulinger and stated that when balancing the interests between parent, child and public order, it is the child’s best interest which must be the primary consideration. The court effectively did what it cautioned against doing in the Maumousseau case – rendered meaningless the provisions of The Hague Convention. In order to emphasize that The Hague Convention was now only a legal relic of little consequence, the Court upheld the finding that the children were now settled in their new environment, despite the fact that the Hague petition had been filed only several months after the unlawful retention. A request for referral to the Grand Chamber is pending.

As to the finding that the return of the children to Israel would place them in grave risk of intolerable physical danger under Article 13b of The Hague Convention, the Court did not make any findings. It therefore left standing the Romanian Appellate Court’s holding that the return of abducted children to Israel is to be denied due to the possibility of terrorist attacks. It is of interest to note that in the matter of Iosub Caras v. Romania, Application no. 7198/04, decided July 26, 2006, the ECHR found that Romania had violated the applicant’s rights under Article 8 of the EC when its courts denied the father’s Hague petition to return his daughter to Israel. No mention was made of the physical danger defense under Article 13(b) of The Hague Convention.

VIIII   The Court of Last Resort?

Although the judgments of the ECHR are binding on the member states,    the Neulinger case represents such a radical departure from the body of Hague    case law that it would be difficult for most courts to accept its conclusions without a struggle. The High Court of England, Family Division has indicated that the Neulinger decision will not be adopted as is into English case law. In the matter of Re T, (2010) EWHC 3177 (Fam), the court addressed the effect of the Neulinger decision on Hague Convention proceedings in England. The court found that the respondent mother had met the standard of proof necessary as a defense to the Hague petition and denied the children’s return. It found that there was no apparent contradiction between Neulinger and the provisions of The Hague Convention.

However, in the appendix to its decision, the court adds a comment on the Neulinger case. The court states that neither party argued that Neulinger created a “seismic shift” in the approach to Hague cases. It added that it did not believe that Neulinger requires an in-depth examination of the family situation in every Hague case.

The court goes on to say, in no uncertain terms, that if its understanding of Neulinger is incorrect, then the case indeed would conflict with established authority in England. The court must take an ECHR decision into account and follow it to the extent that it represents that court’s clear and consistent jurisprudence. However, the court states that it does not believe that Neulinger falls into that category.

It remains to be seen as to what extent the Neulinger decision will impact on Hague Convention case law. The decision in Re T will hopefully be considered by the ECHR before handing down its next Hague case judgment. While the ECHR has never ordered the return of an abducted child where the member state has violated the applicant’s rights under the EC, it will now prevent the return of an abducted child when it finds that the member state violated the EC rights of the abductor.

IAML European Chapter Meeting- Strasbourg, April, 2011

The European Court of Human Rights and the Hague Convention: Civil Aspects of International Child Abduction

I Jurisdiction

The ECHR is not an appellate forum for judgments regarding the Hague Convention. The ECHR may adjudicate actions in which there is an alleged violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (EC). Article 8 guarantees the right to respect for private and family life. The operative clause is paragraph 8(2), which prohibits the interference by a public authority with the exercise of this right. There is an exception to this provision based on the interests of public safety, the prevention of crime, the protection of health or morals or the protection of the rights and freedoms of others.

Article 6 of the EC guarantees a right to a fair trial within a reasonable time.

Where the courts of a member state deny a petition under The Hague Convention for the return of abducted children, a claim is usually made that the denial constitutes a violation of either Article 8 or Article 6 of the European Convention.

II       Relief

Article 41 of the EC provides the relief which the Court may order if a violation is found. The Court, if necessary, shall “afford just satisfaction to the injured party”, where domestic law does not allow complete reparation to be made. Just satisfaction is defined by the Rules of Court as monetary compensation. Damages are awarded to compensate the wronged party for the actual harmful consequences of the violation, not to punish the offending state. Therefore, no punitive damages are awarded.

III  Damages

Compensation is divided into two categories: pecuniary and non-pecuniary damages. Pecuniary damages are meant to restore the applicant to the position in which he or she would have been had the violation not occurred. The damages can be for losses actually incurred and for anticipated future losses. Non-pecuniary damages are intended to provide financial compensation for mental or physical suffering. Thus, where a country is found to violate Art. 8 by wrongfully rejecting a Hague Petition, the applicant will at best receive a check instead of a child.

IV Child abduction and Article 8 of the EC

Child abduction cases in which the ECHR has found that a state violated Article 8 of the EC fall into two categories; improper interpretation of the Hague Convention or failure of the state to implement the decisions of its courts. The case of Monory v. Hungary & Romania, Application no. 71099/01, (April 5th, 2005) is illustrative of the first category. Applicant and his wife were Hungarian residents who married and had a daughter in Hungary. The parents had joint custody of the child under Hungarian law. At the conclusion of an agreed upon visit to Romania, the mother unlawfully retained the child and initiated divorce proceedings there. The father countered with a Hague petition for the child’s return to Hungary. In addition, he commenced custody proceedings in Hungary.

The Romanian courts rejected the father’s Hague petition. They concluded that the retention was not unlawful as the father did not have exclusive custody rights under Hungarian Law. They therefore held that Article 3 of the Hague Convention was not applicable.

The ECHR found that the Romanian courts so misinterpreted Article 3 of the Hague Convention that it violated the guaranties of Article 8 of the EC. The ECHR will not substitute its interpretation of the Hague Convention for that of the state courts where that interpretation is reasonable. Where the application of the Hague Convention is clearly erroneous, the ECHR will find a violation of Article 8.

The applicant claimed 80,000. EUR for non-pecuniary damages and 4,550. EUR for costs and expenses. The ECHR awarded him 15,000. EUR for non-pecuniary damages. As to attorney’s fees and expenses, the Court ruled that though the applicant failed to submit supporting documents, it accepted that some costs must have been incurred. It therefore awarded him a total of 1,000. EUR for fees and expenses.

The failure to enforce a custody judgment in Bajrami v. Albania, (2008) 47 E.H.R.R 22, was held to be a violation of Article 8 of the EC. The applicant father initiated various legal proceedings to prevent the unlawful removal of his daughter from Albania by the mother. During the course of three years, Albania failed to take any action which would secure the applicant’s parental rights, which included an ex parte custody order. The mother abducted the child and did not reveal her location.

The ECHR ruled that the efforts of the Albanian authorities were neither adequate nor effective in discharging their positive obligation under Article 8 to insure the applicant’s parental rights. The father was awarded 15,000. EUR for non-pecuniary damages and 10,000. EUR for legal costs incurred in Albania and the ECHR.

V Child abduction and Article 6 of the EC

Violations of Article 6 of the EC generally involve Hague proceedings that the state failed to conclude within two years of commencement. As Hague Convention proceedings are summary in nature, proceedings which take two or more years to complete are usually found to violate the applicant’s rights to a fair hearing within a reasonable time.

A case in point is Deak v. Romania and the United Kingdom, Application no. 19055/05. The parties were both Romanian. They were divorced in Romania and custody of the couple’s son was given to the mother with the father having regular visitation. In December, 2002, two years after the divorce, the mother unlawfully removed the child to England. The English court requested a legal opinion regarding Romanian Law as it applied to applicant’s custody rights. An Article 15 application under the Hague Convention was filed in Romania. The final ruling on the Article 15 application was rendered in July, 2005. The Romanian courts ruled that the applicant did not have custody rights as defined by Article 3 of the Hague Convention.

The lower English courts rejected the Article 15 ruling of the Romanian courts and accepted the opinion of an expert who reached the opposite conclusion. The House of Lords overturned that decision in November, 2006 and rejected the father’s Hague petition based on the Article 15 ruling of the Romanian court.

In his application to the ECHR, the father claimed his Article 8 rights were breached by both the English and Romanian courts. He further claimed that the excessively long proceedings in both the English and Romanian courts constituted a violation of Article 6 of the EC.

The ECHR rejected the claims under Article 8. It held that it is not the function of the Court to deal with errors of fact or law by a national court unless such error infringes upon a freedom protected by the EC. The Court held that the Romanian courts were neither unreasonable nor contrary to the general rules of fairness. There was also no indication of arbitrariness or unreasonableness in the decisions of the English courts.

The Court did find a violation of Article 6 by the Romanian courts, which took two and a half years to render a final decision on the Article 15 petition. It held that the extensive delay could not be imputed to the English court, which had held its proceedings in abeyance while waiting for the ruling of the Romanian courts.

The applicant’s claim of 500,000. EUR for non-pecuniary damages resulted in an award against Romania for 1,000. EUR. The 300,000. EUR claim for pecuniary damages was rejected in toto. Costs and expenses for legal proceedings were claimed in the amount of 106,947,44. EUR. The award for costs was made in the amount of 300. EUR.

VI Article 13 (b) of the Hague Convention and Article 8 of the EC.

The ECHR has also been requested to intercede by applicants who allege that an order to return made by a state court under The Hague Convention violated their EC rights. The Hague Convention’s stated purpose is to restore the status quo prior to an unlawful removal. The decision regarding who is the more suitable parent to receive custody is reserved for the court in the child’s state of habitual residence.

Hague Convention proceedings are meant to determine jurisdiction, not the best interests of the child. Therefore, the defenses under The Hague Convention, particularly Article 13(b), are to be narrowly construed.

Applicants before the ECHR have claimed that the strict interpretation of Article 13(b) and the summary nature of the proceedings constitute a violation of Article 8 of the EC.

The ECHR has generally rejected these claims (Paradis and others v. Germany no. 4783/03, May 15th, 2003). The Court has held that it “is entirely in agreement with the philosophy underlying the Hague Convention”. (Maumousseau and Washington v. France, Application no. 39388/05, December 6, 2007).

The case of Maumousseau entails a particularly extensive analysis of the nexis between Article 13(b) of the Hague Convention and the 1989 UN Convention on the Rights of the child, according to which “the best interests of the child” is paramount in all matters in which children are concerned. The ECHR adopted the view of the drafters of the Hague Convention; namely that inherent in the best interests test is the concept that children should not be unilaterally removed from their habitual residence. The Court further stated that the “aim is indeed to prevent the abducting parent from succeeding in obtaining legal recognition by the passage of time, of a de facto situation that she or he unilaterally created”.

VII Neulinger and Shuruk v. Switzerland

The Neulinger case, Application no. 41615/07 was decided on July 6th, 2010. It is a Grand Chamber decision, overturning a 4-3 First Chamber decision. The case involves a Swiss mother married to an Israeli father. Their son was born in Israel in 2003.

The parties began divorce proceedings in Israel in June, 2004. The mother received temporary custody but the court issued a ne exeat order prohibiting the removal of the son from Israel. Despite the order, the mother unlawfully removed the child from Israel in June, 2005. The father immediately contacted the Israeli Central Authority for the Hague Convention, in an attempt to locate the child.

Almost two years later, Interpol Berne advised their Israeli counterpart that the child was in Switzerland. On June 8th, 2006, some two weeks after being notified as to his son’s whereabouts, the father filed a petition in Lausanne for the return of his son under the Hague Convention. The father’s petition for return was rejected by both the trial court and the Cantonal Court in Switzerland. In a judgment of August 16th, 2007 the Federal Court of Switzerland overturned the decisions of the lower courts and ordered the return of the child to Israel by the end of September, 2007.

On September 26th, 2007 the mother filed her application with the ECHR alleging a violation of Article 8 of the EC. The next day, the ECHR notified the Swiss Government that it was desirable not to enforce the order of return. Switzerland complied with the request.

The First Chamber issued its decision in January, 2009, rejecting the mother’s application. The mother’s request to refer the case to the Grand Chamber was granted. A hearing took place on October 7th, 2009. The Grand Chamber issued its judgment on July 6th, 2010, almost three years after the initial application.

The Grand Chamber’s judgment reinterprets the meaning previously attributed to the best interests test when applied to The Hague Convention. First, the Court introduces a balancing test between what it sees as competing interests: those of the child, of the two parents and of public order.

Second, the court relegates the principles of The Hague Convention to just one element in assessing the best interests of the child. It holds that Article 13(b) of the Hague Convention is now to be interpreted in conformity with Article 8 of the EC.

The most troubling aspect of the Court’s decision is its holding, contrary to accepted case law, that its assessment of the Article 8 claim must take into account the events that transpired subsequent to the decision of the Swiss Federal Court. The Court questions the pertinence of The Hague Convention decision in situations where the child has remained in the requested state a considerable amount of time after an order of return was made. The Court found that it is no longer “beneficial” to force the child to relocate to Israel, given the passage of time since the Federal Court’s decision. The ECHR used the delays caused by its own cumbersome procedures as a legal basis for ruling against the return of the child.

VIII The EC and Balance of Interests

The balancing of interests test introduced in Neulinger has now been adopted as the normative approach by the ECHR when ruling in Hague Convention cases. Raban v. Romania, Application no. 25 437/08, October 26th, 2010 involves an Israeli father who was married to a Romanian mother. Their two children were born and raised in Israel. The mother travelled with the children to Romania on a visit and was scheduled to return in October, 2006. In November of that year, the mother advised the father that she was not returning.

The father filed a petition for return under The Hague Convention in the Bucharest District Court in February, 2007. The father’s petition was granted but the mother lodged an appeal with the Bucharest Court of Appeals. On January 7th, 2008, the appellate court, in a 2-1 decision, overturned the district court judgment.

Although the trial court ruled that the father had not consented to the children remaining in Romania, the appellate court, on the same evidence, overturned this finding of fact.

The Romanian appellate court found that although the petition was filed in a timely manner, the children had adopted to their new environment. Finally, the appellate court found that returning the children to Israel would violate the grave physical risk defense under Article 13(b) due to the terrorist attacks which occur there. The decision regarding the terrorist attacks was based solely on an Amnesty International report and a U.S. State Department travel warning. Neither document was introduced during any of the legal proceedings, nor was the father given an opportunity to respond to those reports.

The application to the ECHR was submitted on May 28th, 2008. Almost two and a half years later, in October, 2010, the Third Section gave its judgment. The applicant alleged a violation of his family rights under Article 8 of the EC and a violation of his rights to due process under Article 6. The ECHR rejected both arguments. Citing the holdings in Neulinger, the Court stated that the provisions of The Hague Convention and the UN Convention on Children’s Rights must be equally considered when weighing an application under Article 8.

The Court also reiterated the balancing test. This time, however, it went one step further than Neulinger and stated that when balancing the interests between parent, child and public order, it is the child’s best interest which must be the primary consideration. The court effectively did what it cautioned against doing in the Maumousseau case – rendered meaningless the provisions of The Hague Convention. In order to emphasize that The Hague Convention was now only a legal relic of little consequence, the Court upheld the finding that the children were now settled in their new environment, despite the fact that the Hague petition had been filed only several months after the unlawful retention. A request for referral to the Grand Chamber is pending.

As to the finding that the return of the children to Israel would place them in grave risk of intolerable physical danger under Article 13b of The Hague Convention, the Court did not make any findings. It therefore left standing the Romanian Appellate Court’s holding that the return of abducted children to Israel is to be denied due to the possibility of terrorist attacks. It is of interest to note that in the matter of Iosub Caras v. Romania, Application no. 7198/04, decided July 26, 2006, the ECHR found that Romania had violated the applicant’s rights under Article 8 of the EC when its courts denied the father’s Hague petition to return his daughter to Israel. No mention was made of the physical danger defense under Article 13(b) of The Hague Convention.

VIIII   The Court of Last Resort?

Although the judgments of the ECHR are binding on the member states,    the Neulinger case represents such a radical departure from the body of Hague    case law that it would be difficult for most courts to accept its conclusions without a struggle. The High Court of England, Family Division has indicated that the Neulinger decision will not be adopted as is into English case law. In the matter of Re T, (2010) EWHC 3177 (Fam), the court addressed the effect of the Neulinger decision on Hague Convention proceedings in England. The court found that the respondent mother had met the standard of proof necessary as a defense to the Hague petition and denied the children’s return. It found that there was no apparent contradiction between Neulinger and the provisions of The Hague Convention.

However, in the appendix to its decision, the court adds a comment on the Neulinger case. The court states that neither party argued that Neulinger created a “seismic shift” in the approach to Hague cases. It added that it did not believe that Neulinger requires an in-depth examination of the family situation in every Hague case.

The court goes on to say, in no uncertain terms, that if its understanding of Neulinger is incorrect, then the case indeed would conflict with established authority in England. The court must take an ECHR decision into account and follow it to the extent that it represents that court’s clear and consistent jurisprudence. However, the court states that it does not believe that Neulinger falls into that category.

It remains to be seen as to what extent the Neulinger decision will impact on Hague Convention case law. The decision in Re T will hopefully be considered by the ECHR before handing down its next Hague case judgment. While the ECHR has never ordered the return of an abducted child where the member state has violated the applicant’s rights under the EC, it will now prevent the return of an abducted child when it finds that the member state violated the EC rights of the abductor.