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SageDad:
A Momentous and Disturbing Ruling in Europe on the Hague Abduction Convention
http://www.internationalfamilylawfirm.com/2010/07/momentous-and-disturbing-ruling-in.html
Tuesday, July 13, 2010
Jeremy D. Morley


The Grand Chamber of the European Court of Human Rights (the “ECHR”) has issued, just days ago, a major decision that – at least at first blush – appears to have an extremely 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 European Court stated that it should not normally review whether a domestic court has correctly decided whether or not a parent who has abducted a child has established that returning the child to the habitual residence would create a grave risk of harm to the child within the meaning of Article 13 of the Hague Convention. However, it also ruled that it is competent to determine whether a domestic court, in applying and interpreting the Hague Convention, has “secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child's best interests.” It then found that there is a broad consensus in support of the idea that in all decisions concerning children, their best interests must be paramount.

Applying those principles, the Court stated that it was required to consider the best interests of the child at the current time, rather than at the time of the abduction or the time of the Swiss courts’ return order. Since several years had been consumed by appeals the child had now been living for some years in Switzerland, had become well settled there and his father had since remarried in Israel and no longer seemed so interested in this child. Accordingly it was best not to send him back to the habitual residence from which he had previously been abducted.

Thus, the European Court has subordinated Article 13(b) of the Hague Convention to Article 8 of the European Convention and has thereby, at least in this author’s initial reading of the opinion, undercuts decades of jurisprudence within Europe to the effect that the Hague Convention is intended to have children returned very promptly to their habitual residence except if one of the very narrow and limited exceptions is established.

To a Hague Convention lawyer this ruling is shocking. Indeed, it now appears that courts within Europe may be required to conduct custody evaluations before internationally-abducted children are returned to their habitual residence.

Since the rest of the world is not a party to the European Convention on Human Rights there is likely to be a sharp division between the way that European countries handle international abduction cases as compared to non-European countries.

In a recent case the Ninth Circuit reiterated the fundamental principle that has long been applied in almost all Hague Abduction Convention countries that, “The Hague Convention seeks to deter parents from abducting their children across national borders by limiting the main incentive for international abduction-the forum shopping of custody disputes… A court that receives a petition under the Hague Convention may not resolve the question of who, as between the parents, is best suited to have custody of the child.. .With a few narrow exceptions, the court must return the abducted child to its country of habitual residence so that the courts of that country can determine custody.” Cuellar v. Joyce, 596 F.3d 505 (9th Cir. 2010).

However, Europe has apparently now embarked on quite a different course.
Posted by Jeremy Morley at 9:24 PM

SageDad:
Swiss clockmakers fail to tell the time: ECHR allows abduction after many delays
http://www.familylaw.co.uk/articles/DavidHodsonIFL090810
by David Hodson
09 August 2010


There is much controversy across the child abduction world, between Europe and non-European countries, following a decision of the Grand Chamber of the European Court of Human Rights (ECHR) in Neulinger & Shuruk v. Switzerland (Application no. 41615/07) handed down on 6 July 2010. A Swiss couple moved to Israel and the child was born in 2003. The mother was anxious that the father had become involved in an extremist sect. In June 2005 the mother abducted the child to Switzerland. In May 2006 an Israeli court declared the child's habitual residence was in Israel. The litigation moved to Switzerland and over the next couple of years there were orders for return, then findings of harm if the child was returned and many appeals. Eventually the matter reached the ECHR which after preliminary investigations and reports in 2009 has just made its decision. And it appears very surprising

In summary, it ruled that the European Convention on Human Rights concerning the integrity of family life, especially Article 8, overcomes the Hague Abduction Convention. It decided the ECHR was appropriate to consider if a domestic court in applying and interpreting the Hague Convention has secured Article 8 rights. Accordingly it would look at the best interests of the child at the present time rather than at the abduction or the return order of the Swiss courts. Timing was crucial. Several years had elapsed since the abduction, in good part through litigation, and the child was now well settled in Switzerland. A return was not ordered. So the expectations of almost automatic return in the Hague Convention came secondary to the European Convention on Human Rights.

Understandably this decision has created much consternation, especially outside Europe which is not a party to the Human Rights Convention. Jeremy Morley, one of the world's leading international family lawyers, practising from New York, has rightly drawn attention to the decision and the concern from outside Europe that a different course of action will now proceed in Europe in contrast to the conventional Hague approach. Internet chatroom cynicism to the decision is predictably that it shows that abduction pays. My colleague, Carolynn Usher, one of the world's leading and most experienced child abduction lawyers, has however contrasted the approach of the UK and some other countries in mostly adhering to the requirements in the Brussels Regulation (BIIr) for a six-week resolution including appeals, which in practice is extended to all Hague cases. The true failure in this case was that of the Swiss legal system to deal expeditiously.

The controversy over the decision will continue. What cannot be controverted is that some countries, including within the EU, take an unacceptably long time to deal with child abduction litigation including appeals. As a consequence, the life of the child has genuinely moved on. The answer is not to criticise the European Court of Human Rights. The real answer is to have a system which enforces and penalises those countries who are so slow to return abducted children as to work against the best interests of children.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

UD_student:
I miss a few days here and it seems like that court ruling turned the world [more] upside down.

Since we all know delays are excessive just about everywhere when dealing with Hague cases and this ruling states the best interests of the child must be taken into account at the current time (clearly not determined by a psychiatrist who is familiar with parental alienation, but I don't think they should examine these kids anyway-it's extraneous to the case), all an abductor has to do is appeal and appeal until the 'best interests' of the child are no longer to return. It literally is a case of where two wrongs by the abducting parent equal the abducting parent viewed as 'right' since they will get to retain the child with the courts blessing.

I suppose I shouldn't be shocked as Sylvester got over 9 court rulings in his favor in Austria and the EU and none of them ever resulted in his daughter being returned to him.

SageDad:
It may even be true that this child is better off being allowed to stay in Switzerland after being there for four years (there's really not enough details on either parent to say) but, having witnessed this abductor's success, others will try to follow in her footsteps by abducting children and delaying the proceedings as long as possible so they can argue adaption (something not allowed by the Hague Convention except in limited circumstances.)  How many children and families will suffer infinitely more harm as the result of pursuing the dubiously beneficial best interests of a single child in this case?  A fruit born of the poisoned tree of child abduction and fertilized with the destruction of untold numbers of other families and children.  They've thrown out the proverbial baby with the bathwater.  Besides, whatever happened to allowing the court of habitual residence decide what's in the child's best interest?  If staying in Switzerland really were in the best interests of the child the court in Israel should have been able to make that determination just as readily as the ECHR did.  A truly disappointing decision that will probably damage a whole generation of European children at risk of being internationally abducted by providing a path and play-book for would be abductors to abuse them.

I don't disagree with Hodson in that, the lack of expediency on the part of the Swiss courts was instrumental in the construction of this problem, but that in no way shape or form mitigates the fallacy of this decision.  Drawn out litigation is an unfortunate reality that is not likely to change any time soon.  How many other courts will now decide that principles of a child's best interest, a concept tantamount to child custody, should trump the Hague Convention (rendering it a nullity)?  How many new appeals will this result in during every Hague case, and how much longer will each of those appeals last as, not only does each appellate court now have to decide on the merits of the case itself, but they must also re-visit the subjective best-interests of the child principle in light of the amount of time that has passed since the lower court rendered their decision.  A result that will, undoubtedly, only make Hague cases last longer.  While I've become desensitized to all the harm done to children ostensibly in their "best interests," I can't believe a court as high up and influential as the ECHR could get something so simple so horribly wrong.

KarlHindle:
There are other issues at play than simple legalistics.  This case has more than a measure of political maneuvering and motivation behind it.

There is a groundswell of empirical opinion that goes something like this:

1.  adding EU law onto EU member states provides an additional measure of protection for intra-EU abductions, in essence it reaffirms the basis that jurisdiction A provides equal or better child custody and protection as jurisdiction B (provided both are within the EU);
2. the HC is failing - particularly, it is failing to protect children when abducted and after post-return; therefore it is better to err on the side of caution and ensure the child's best interests standard is used to avoid colliding with other international and EU directives, notably the UN CRC and EU human rights directives; and
3. there are several high profile cases involving the EU which have led to severe criticism of abducted-to countries when they have applied the HC (both wrongly and correctly).

Human rights within the EU is something which is taken very seriously and there are several other cases bouncing around involving the HC and human rights legislation - it is almost a standard practice for the High Court in London to hear objections to an HC return being couched in terms of the UK Human Rights Act, particularly with respect to family life. 

I don't agree with the ECHR decision but I do understand the difficulty in reconciling the HC roulette wheel and the child's best interests.

A counterpoint to the ECHR decision is to be found in those US observers who call for sanctions against non-compliant countries; a further counterpoint is the failure of US federal courts to enforce visitation (art21 applications) for visitation within the US (no federal court has ever agreed to hear such an application and gaining access to children in the US is fraught with difficulty) - the ECHR is taking a different tack i.e. no return unless you are up to the job.

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