The applicant is a Cape Verdean and Dutch national, born in 1959 and living in the Netherlands. She is represented before the Court by Ms Y.M. Schrevelius, a lawyer practising in Rotterdam.

A.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 3 March 1989 the applicant moved from the Cape Verde Islands to the Netherlands where she married a Dutch man. On the basis of the marriage she obtained a residence permit.

At the time the applicant came to the Netherlands she had three minor children, O.C. A.C. and S.D., who stayed behind in the Cape Verde Islands in the care of their grandmother.

On 3 December 1992 the applicant’s husband passed away. The applicant’s residence permit was subsequently withdrawn. She remained in the Netherlands, however, and in July 1995 she obtained Dutch citizenship.

On 27 November 1995 the applicant filed a request to the head of police (korpschef) of the Rotterdam Rijnmond region for a provisional entry visa (machtiging tot voorlopig verblijf) for her three children. The request was forwarded for consideration on the merits to the Visa Department (Visadienst) of the Ministry of Foreign Affairs. At the time of the request the children were 17, 13 and 11 years of age respectively.

On 19 January 1996 the Visa Department, on behalf of the Minister of Foreign Affairs, rejected the applicant’s request. The Visa Department concluded that the family ties had been broken since, after the applicant had left, the children had been living with the grandmother and were being brought up by her. There was no indication that this situation could not be maintained. Moreover, the applicant had not shown that she had been involved with the upbringing and care of the children. The fact that the applicant had regularly transferred money to the Cape Verde Islands was insufficient to assume that family ties had continued to exist.

The decision further stated, in accordance with national aliens policy, that, apart from international obligations, aliens could only be allowed for residence in the Netherlands if this served “essential interests of the Netherlands” (wezenlijk Nederlands belang) or in case of cogent reasons of a humanitarian nature (klemmende redenen van humanitaire aard). Neither of these conditions was met in the case of the applicant’s children.

On 15 February 1996 the applicant filed an objection (bezwaar) through her counsel to the head of the Visa Department with respect to her two youngest children, M.C. and S.D.. On 29 March 1996 she filed additional grounds for her request which emphasised the applicant’s special and emotional ties with her children. The explanation given for the time elapsed between the applicant’s departure from the Cape Verde Islands and the request for entry of her children (6.5 years) was that the applicant had waited for naturalisation before applying for family reunification. The applicant submitted that she had been back to the Cape Verde Islands twice, in 1993 and 1996, to visit her children, that she made monthly phone calls to her children, that she received child benefits in the Netherlands and had made 12 money transfers for her children between 3 October 1991 and 26 March 1996. She moreover held that her mother, who was 61 and suffering from a nervous disease - for which the applicant submitted a medical certificate - was unable to provide further care for the children.

On 9 May 1996 an inquiry commission (hoorcommissie) of the Immigration and Naturalisation Department of the Ministry of Justice (Immigratie en Naturalisatiedienst van het ministerie van Justitie) held a hearing with the applicant with a view to her objection.

On 9 August 1996 the Minister of Foreign Affairs rejected the applicant’s objection concluding that, other than mere kinship, no special relationship could be distinguished between the applicant and the children. Furthermore, as regards the care of the children in the Cape Verde Islands, the applicant had not sufficiently shown why her mother, in spite of her disease, would not be able to continue taking care of the children. Moreover, the Minister established that a brother and sister of the applicant’s children who were of age were living with the applicant’s minor children at the same address and they could contribute to their care.

The applicant lodged an appeal on behalf of her children with the Aliens Chamber of the Hague Regional Court sitting in Haarlem (Arrondissementsrechtbank te ‘s-Gravenhage zittinghoudende in Haarlem, Enkelvoudige Kamer voor Vreemdelingenzaken). She invoked, among others, Article 8 of the Convention in support of her claim.

On 15 May 1997 the Regional Court rejected the appeal as unsubstantiated. It held that the children in fact did no longer belong to the applicant’s family. It dismissed the argument of the applicant’s uncertain status in the Netherlands before her naturalisation, with a reference to the fact that she had not tried to get her children to come to the Netherlands when her Dutch husband was still alive. The Regional Court further held that the financial contributions made by the applicant could not be considered as a real contribution to the care and upbringing of the children. It stated that no evidence had been produced as to the mentioned phone calls from the applicant to the children and also that the applicant had only visited the children twice after her departure. The Regional Court assessed that the applicant had brought the family’s living as a unit to an end when she decided to leave the Cape Verde Islands and come to the Netherlands. The Regional Court concluded that no other special relation had further been established between the applicant and her children and that therefore the family ties between applicant and her children should be considered to have ceased to exist. It found no grounds therefore to grant admission for family reunification.

The Regional Court dismissed the claim for admission of the children on humanitarian grounds since it had not been shown that care for the children could not be continued in the Cape Verde Islands.

When assessing whether the State’s actions had been in compliance with the requirements of Article 8 of the Convention the Regional Court firstly acknowledged that there was “family life” in terms of that provision. It reasoned, with reference to the Gül v. Switzerland judgement of 19 February 1996 and the Ahmut v. the Netherlands judgement of 28 November 1998, that its task was to strike a balance between the interests of the applicant and those of the society as a whole (the latter interest being the necessity of a restrictive immigration policy). The Regional Court finally concluded in the light of the Court’s jurisprudence that the applicant’s choice of family life had been one of not being with her children and that if the applicant wished to re-establish direct family life with her children, this would also be possible in the Cape Verde Islands.

The Regional Court decision was final and not subject to appeal.

B. Relevant domestic law

Article 11 of the Aliens Law (Vreemdelingenwet) provides that the Minister of Justice (Minister van Justitie) decides on requests lodged by aliens for admission to and residence in the Netherlands. The Minister may refuse access and residence on general interest grounds (gronden aan het algemeen belang ontleend).

In view of the situation in the Netherlands as regards population size and employment, Government immigration policy - defined in the Aliens Circular (Vreemdelingencirculaire) of 1994 - is aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens are only granted admission for residence purposes if: (a) the Netherlands are obliged under international law to do so; (b) this serves “essential interests of the Netherlands”, e.g. economic or cultural interests; (c) there are “cogent reasons of a humanitarian nature” (Chapter A4/5.3 of the Aliens Circular).

The policy for admission for family reunification purposes is laid down in Chapter B1/5 of the Aliens Circular. This provides, insofar as relevant, that a residence permit for the purposes of family reunification may be granted to a parent of Dutch nationality with minor children, when the children factually belong to his/her family and family ties with one of the parents already existed abroad. Family ties are considered to have definitely ceased to exist in case of long-term integration of the child into another family while the parent(s) no longer exercise parental authority and no longer provide for the costs of upbringing and care of the child.


CASE OF NEULINGER AND SHURUK v. SWITZERLAND

Violation of Art. 8 (in case of enforcement of the Federal Court's judgment)

András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicants were born in 1959 and 2003 respectively and live in Lausanne (Canton of Vaud).

The facts as submitted by the parties may be summarised as follows.

The first applicant, who refers to herself as Jewish, decided to settle in Israel in 1999. There she met an Israeli national, who is also Jewish, and they were married on 23 October 2001 in Israel. They had a son, Noam, who was born in Tel Aviv on 10 June 2003. He has Israeli and Swiss nationality.

According to the applicants, in the autumn of 2003 the child’s father joined the Jewish “Lubavitch” movement, which they have described as an ultra-orthodox, radical movement that is known for its zealous proselytising.

Marital difficulties then arose, and the first applicant, fearing that her husband would take their son to a “Chabad-Lubavitch” community abroad for religious indoctrination, applied to the Tel Aviv Family Court for a ne exeat order to prevent Noam’s removal from Israel. On 20 June 2004 the court made a ne exeat order that was to expire when the child attained his majority, that is to say on 10 June 2021, unless annulled by the court in the meantime.

In an interim decision of 27 June 2004, the same court granted “temporary custody” of the child to the mother and requested the Tel Aviv social services to draw up an urgent welfare report. The “guardianship” of the child was to be exercised jointly by both parents.

In a decision of 17 November 2004, the court, on the recommendation of a social worker, confirmed the first applicant’s custody of the child and granted a right of visitation to the father.

On 10 January 2005 the Israeli social services were obliged to intervene. They instructed the parents to live apart, in the interest of the child. The letter they sent to the parents read as follows:

“1. We take the view that to maintain a common home and live, as you have been doing, under the same roof is not in the child’s interest – and that is an understatement. It appears to us that the environment of constant recrimination and invective created by Shai against Isabelle has caused her permanent stress that may prevent her from fulfilling her role as a mother, when she is already faced with the need to find a job in order to support herself and pay the rent. It should be noted that Shai pays neither the maintenance ordered by the court nor the rent.

We felt that some of Shai’s recriminations verged on the absurd. He has decided that the child’s illness, like the glandular fever and the epileptic fit that the child has suffered, are the mother’s fault. Shai persists in asserting that Isabelle ‘is not a good mother’; he does not accept the fact that the child attends nursery school, and claims that the medical certificates are insufficient. We advise Shai to speak to the doctors who are treating the child.

Although he is maintained by Isabelle, Shai demands that the food complies to a very strict degree with Jewish dietary laws, observing one dietary rule or another ...

There is no doubt that living apart will resolve some of these problems.

We find that Shai creates a hostile environment at home – an atmosphere of verbal aggression and threats that terrorise the mother.

In the light of the foregoing, we cannot but find that the mother is exposed to mental harassment and that the maintaining of a common home is harmful to the child.

Under the powers conferred on us by sections 19 and 68 of the Law on legal capacity, we reiterate our warning to Shai, calling on him not to take his child with him to engage in religious proselytising on the public highway, where he encourages passers-by to put on phylacteries and collects donations.

Likewise, the father is requested not to take the child with him to the synagogue for a whole day at a time.

We emphasise that the provisions on access in respect of the child are intended to bring father and child together for their common activities, and not for other purposes.”

That same day, the first applicant filed a complaint with the police accusing her husband of assault.

In an injunction of 12 January 2005 the competent judge of the Tel Aviv Family Court, upon an urgent application lodged earlier that day by the first applicant, prohibited the father from entering the child’s nursery school or the first applicant’s flat, from disturbing or harassing her in any manner whatsoever, and from carrying or possessing a weapon. Restrictions were also imposed on the access right granted to the father, who was now authorised to see the child only twice a week under the supervision of the social services at a contact centre in Tel Aviv.

The couple’s divorce was pronounced on 10 February 2005 with no change in the attribution of guardianship.

As the father had defaulted on his maintenance payments to the first applicant, an arrest warrant was issued against him on 20 March 2005.

In a decision of 27 March 2005, a judge of the Tel Aviv Family Court dismissed an application lodged by the first applicant for the annulment of the ne exeat order prohibiting the removal of the second applicant from Israel. The judge found, in particular, that there was a serious risk that the mother would not return to Israel with the child after visiting her family abroad, in view of the fact that she had no ties in that country.

On 24 June 2005 the first applicant secretly left Israel for Switzerland with her son.

On 27 June 2005 Noam’s father contacted the Israeli Central Authority, which was unable to locate the child until 21 May 2006, when Interpol Jerusalem forwarded him a note from Interpol Berne indicating that the first applicant was in Switzerland.

On 22 May 2006 the Israeli Ministry of Justice transmitted to the Swiss Federal Office of Justice an application for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (the “Hague Convention”; see paragraph 57 below). In support of its application it indicated, among other things, that Interpol Berne had notified it only the day before that Noam and his mother were living in Lausanne and that the latter had applied for the renewal of her Swiss passport.

In a decision of 30 May 2006, delivered upon an application by the child’s father, the Tel Aviv Family Court observed that the child was habitually resident in Tel Aviv and that, as of 24 June 2005, the date of the applicants’ departure, the parents had been joint guardians of their son, with the mother having temporary custody and the father a right of access. The court held that the child’s removal from Israel without the father’s consent had been wrongful within the meaning of Article 3 of the Hague Convention.

On 8 June 2006 the child’s father lodged an application with the Lausanne District Justice of the Peace seeking an order for his son’s return to Israel. He requested in particular, as an extremely urgent measure, that the Lausanne Passport Office be ordered to retain the applicants’ Swiss passports.

On 12 June 2006 the Justice of the Peace made an order allowing the application by Noam’s father for an extremely urgent measure.

Following a new application for an extremely urgent measure, faxed by the child’s father on 27 June 2006, the Justice of the Peace, in a provisional-measures order made that same day, ordered the first applicant to deposit her passport and that of Noam immediately with the court registry of the Justice of the Peace, on pain of criminal sanctions for refusal to comply with the decision of an authority.

The first applicant, assisted by counsel, and the legal representative of the father, whose obligation to appear in person had been waived, made representations to the Justice of the Peace on 18 July 2006.

In a decision of 29 August 2006, after a hearing, the father’s application was dismissed by the Lausanne District Justice of the Peace. The court took the view that, whilst the child’s removal had been wrongful within the meaning of Article 3 of the Hague Convention, it had to apply Article 13, sub-paragraph (b), of that Convention, as there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

On 25 September 2006 the father appealed against that decision before the Guardianship Division (chambre des tutelles) of the Vaud Cantonal Court, which ordered an expert’s report and for that purpose appointed Dr B., a paediatrician and child psychiatrist. In his report, delivered on 16 April 2007, he stated that 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; that the return of the child without his mother would expose him to a risk of major psychological harm; and that the maintaining of the status quo would also represent for the child a risk of major psychological harm in the long term.

On 30 November 2006 the competent court in Tel Aviv cancelled an indictment for domestic violence that the second wife of Noam’s father had initiated, as she had left the country.

In a letter of 12 March 2007, in connection with the proceedings to secure the child’s return, the Israeli Central Authority made the following observations to its Swiss counterpart:

“We acknowledge receipt of your letter dated 7 February 2007. We wish to respond to the questions raised in that letter as follows:

Mr Shuruk states that in the event that the mother refuses to return to Israel, he will take care of the child. He currently lives in an apartment with a roommate, however if the child is returned to Israel, he states that he will immediately secure an apartment to live in with the child. He is currently working and studying at an institution for religious learning, from 9 a.m. to 3 p.m. The child would be in day care/nursery school during those hours. Mr Shuruk points out that prior to the child’s abduction to Switzerland, he was in day care as the mother worked. Mr Shuruk advises that his extended family would provide a back-up system for him in the event that he would need assistance from time to time.

The Appeal Court in Switzerland has raised a concern as to how Mr Shuruk can care for the child when his right of access has been restricted. As we stated in our letter to your office dated 28 September 2006, it must be remembered that according to the report of the social worker in Israel, the father and child had a wonderful relationship. There were plans to expand the visitation, to include overnight visits, however these plans were interrupted as a result of the mother’s abduction of the child. If the mother were to refuse to return to Israel with the child, she would in effect be agreeing to the father having de facto custody, and Mr Shuruk could apply to the Israeli court to grant an order reflecting the new reality.

You further asked what steps could be taken to protect the mother should she return, given her allegations of violence on the part of Mr Shuruk. Mr Shuruk denies all such allegations. Furthermore, we are attaching a copy of the decision of the Tel Aviv Magistrate’s Court dated 30 November 2006, together with a translation into English. This decision concerned an indictment filed against Mr Shuruk for allegations of assault by his second wife. As you can see, the complainant apparently left Israel and could not be located, therefore the court cancelled the indictment against Mr Shuruk.

In any event, we wish to draw your attention to the law in Israel that provides protection in cases of allegations of family violence; that law is the Prevention of Family Violence Law 1991. We are attaching a translation of that law into English, and an unofficial translation into French. Section 2 provides for protection orders that can be made. Therefore, if the mother has any concerns for her safety, she can apply to the court in Israel and request any necessary protection. Her allegations should not constitute a basis for the Swiss court to refuse to return the child to Israel.

You informed us that the court ordered a psychological evaluation of the child. We must express our concern in this respect. Such evaluation was not ordered by the lower court, and we wish to inquire as to why it has been ordered at this late stage. It must be remembered that the child was abducted by the mother in June 2005. The child has not seen his father in almost two years. During this period he has been subject to the sole influence of the mother. We therefore question what can be gained by a psychological evaluation of the child. It must be remembered that this is a Hague Convention proceeding, and not a custody case. It seems that the mother is trying to prove that the child will be psychologically damaged by being separated from her if he is returned to Israel. However this can be avoided if the mother will act in the child’s best interests and return with him. As we stated in our letter of 28 September 2006, the mother does not appear to have any justifiable reason under the Hague Convention to prevent her return ...”

In a letter of 30 April 2007 to the lawyer acting for Noam’s father, the Israeli Central Authority made the following observations on the question whether the first applicant would be prosecuted or imprisoned if she returned to Israel:

“... You have requested that we inform you as to the legal consequences that would face the mother, Isabelle Neulinger, should she return to Israel with the child, as a result of the act of abduction of the child.

In terms of criminal consequences for the act of abduction, abduction is an offence under Israel’s Penal Law 1977 and carries a possible penalty of imprisonment. However, according to the guidelines of the State Attorney of Israel, upon receipt of a criminal complaint of parental abduction, the police are to forward the matter to the Central Authority under the Hague Convention for guidelines as to how to proceed in the matter. The State Attorney’s guidelines provide that criminal proceedings should be commenced only in very exceptional circumstances. In Ms Neulinger’s case, should she comply with an order to return the child to Israel, not disappear with the child upon her arrival to Israel, cooperate with the Israeli authorities and comply with the existing court order for supervised visitation by Mr Shuruk (pending any further decision), the Central Authority for Israel would positively consider instructing the Israel Police to close the criminal file for lack of public interest, provided that Ms Neulinger not commit further acts of abjection with respect to the child.

In terms of civil consequences, we can inform you that the sole consideration in both the Israeli civil courts and Rabbinical courts, when deciding matters such as custody and access, is the best interests of the child ...”

In a judgment of 22 May 2007, the Guardianship Division of the Vaud Cantonal Court dismissed the father’s appeal. Having carried out an additional investigation, and taking into account the expert’s report by Dr B. of 16 April 2007, it took the view that the child’s return carried a grave risk of psychological harm, whether or not he was accompanied by his mother, and would also place him in an intolerable situation. It therefore considered that the conditions of Article 13, sub-paragraph (b), of the Hague Convention were met. Finding, however, that the child could not be deprived of all relations with his father, it prescribed measures with a view to rebuilding the personal relationship between them. Its judgment read as follows:

“4. (d) ... In response to the questions put to him, expert B. ... states in his conclusions that Noam’s return to Israel with his mother would expose him to psychological harm, the intensity of which cannot be assessed without knowledge of the conditions of such return, in particular those awaiting his mother and the repercussions which they might have on the child; as regards the child’s return to Israel without his mother, [the expert] is of the opinion that it would expose him to major psychological harm, as described in detail in the report. In the ‘discussion’ part of his report the expert emphasises that Noam’s situation seems at present to be completely blocked. On the one hand, given his young age and his complete lack of recollection of his first years in Israel, including of his father, any visit to that country without his mother, even a brief visit, and even if the legal situation allowed it, would be psychologically highly traumatic, involving extreme separation-related anxiety and a major risk of severe depression. On the other hand, the possibility of the mother’s return to Israel with Noam, even for a short period, is totally out of the question for the mother. In answer to the question whether Noam’s return to Israel might place the child in an intolerable situation, the expert replied that it was ‘clearly’ the conditions of the child’s possible return to Israel that would or would not render the situation intolerable. He observed that, likewise, it was the conditions of his continuing residence in Switzerland that would or would not render his situation there intolerable and that the maintaining of the status quo represented a long-term major psychological risk for the child, with the result that, if there were no understanding between his parents, an agreement would urgently be required between the child protection services of the States of the parents’ residence in order to make up for their failure to act.

In accordance with Article 13, third paragraph, of the Hague Convention, this court also requested the Israeli Central Authority to provide information about the child’s social background, by answering the following questions: ‘in the event that, as she has stated, the mother does not return to Israel, who will take care of the child and where will he stay? As the father does not appear to be in gainful employment, who will provide for the child’s upkeep? As the right of access has been restricted by judicial decisions, what measures will be taken to ensure that the exercise of the right of access does not harm the child’s physical and psychological welfare?’ In its letter of 12 March 2007 the Israeli Central Authority did not really answer the questions put to it, so it is impossible to be satisfied about the interests of the child. The Central Authority merely mentioned the appellant’s intentions concerning his son if his son should return to Israel without his mother, in the following terms: ‘[I]n the event that Noam’s mother refuses to return to Israel, the father will take care of the child. He currently lives in an apartment with a roommate; however if the child is returned to Israel, he states that he will immediately secure an apartment to live in with the child. He is currently working and studying at an institution for religious learning, from 9 a.m. to 3 p.m. The child would be in day care/nursery school during those hours. Mr Shuruk points out that prior to the child’s abduction to Switzerland, he was in day care as the mother worked. Mr Shuruk advises that his extended family would provide a back-up system for him in the event that he needs assistance from time to time.’ As to the issue of how Shai Shuruk would be able to take care of the child, given that he has only a restricted right of access, the Israeli Central Authority emphasised: ‘As we stated in our findings of 28 September 2006, according to the report of the social worker in Israel, the father and child had a wonderful relationship. There were plans to expand the visitation, to include overnight visits; however these plans were interrupted as a result of the mother’s abduction of the child.’ The Israeli Central Authority concluded that ‘[i]f the mother were to refuse to return to Israel with the child, she would in effect be agreeing to the father having de facto custody, and Mr Shuruk could apply to the Israeli court to grant an order reflecting the new reality’.

It should be noted that neither the conclusions of the child psychiatrist’s report nor the information provided by the Israeli Central Authority are conducive to Noam’s return to Israel. Not only would such a return entail a grave risk of exposure to psychological harm, whether or not he is accompanied by his mother, it would also place him again in an intolerable situation. Firstly, the psychiatric expert observes that if the child returns to Israel with his mother, he will risk being exposed to psychological harm whose intensity cannot be assessed without knowledge of the conditions of that return. In that connection, the Guardianship Division is of the opinion that, since the child’s removal to Israel, even if his mother accompanies him, may expose the child to psychological harm and since, unlike the ‘classic scenario’ envisaged by the Hague Convention, the respondent has custody of her son, she cannot reasonably be required to return to Israel. An additional factor is that the mother’s return to Israel would also undermine the child’s economic security, since the mother would be required to find a job there, in order to provide not only for her own needs but also for those of her son. The fact that the appellant has never provided for his child’s upkeep and that he is known to earn only 300 [Swiss] francs per month cannot be disregarded when the interests of the child are taken into consideration in that context. Lastly, it must be considered that the requirement of the mother’s return is disproportionate to the reason for the return: the object of the Hague Convention is to put the child back into the legal situation in which he was before he was abducted. However, the present return is requested in order to allow the appellant to exercise his right to a personal relationship, a right which is shown to have been exercised before the child’s departure under the supervision of the social services in the form of two weekly meetings of two hours each. To require a mother to uproot herself in order to permit the exercise of such a restricted right of access, when the child’s return certainly entails a risk of grave psychological harm, in view of the conditions of insecurity in which the return will take place, constitutes an intolerable situation for the child within the meaning of Article 13, sub-paragraph (b), of the Hague Convention.

As to Noam’s return to Israel without his mother, the expert is of the opinion that it would be psychologically highly traumatic, involving extreme separation anxiety and a major risk of severe depression, which can be explained by his young age and his total lack of recollection of his first years in Israel, including of his father. That element is sufficient for a finding that the condition laid down in Article 13, sub-paragraph (b), is satisfied. In addition, the information provided by the Israeli Central Authority about the arrangements envisaged in the event that the child returns without his mother are, at the very least, a matter for concern: although the appellant has, legally speaking, only a very restricted right of access, under supervision, it is envisaged, according to the information provided by the Central Authority, that the appellant will take his son home (without any guarantee that he will by then have an individual flat) and will thus have de facto custody. In that connection, the Israeli Central Authority claims that by refusing to return to Israel with her son, the respondent is implicitly acquiescing in that change of situation – a new reality of which the appellant will then seek validation by the Israeli judicial authorities. That does not correspond to the aim pursued by the Hague Convention, which provides for the immediate return of the unlawfully removed child in order to put it back in the status quo ante. Such a return cannot therefore be ordered on the basis of the Hague Convention, and it is emphasised that there is no doubt that Noam’s return to Israel in such circumstances would definitely expose him to a risk of major psychological harm, owing not only to the fact that he would be abruptly separated from his mother, when she has been his principal parental reference since he was born and has been the only one to provide for his upkeep, but also to the fact that he will be just as abruptly faced with a father of whose existence he has just learnt. In the light of the foregoing, the appeal on this point must be dismissed. ...

... In the present case, it is apparent from the file that Noam Shuruk has lived with his mother, who has custody of him, for at least one year in Lausanne. Thus, the Justice of the Peace of the District of Lausanne had jurisdiction, ratione loci and ratione materiae, to take the disputed protective measure. As to the merits, it is sufficient to state that, since the child has no recollection of his father, owing to the process of physiological amnesia attributable to his very young age, there are valid grounds for avoiding an abrupt reunion, as the welfare of the child requires that the resumption of a personal relationship with his father should take place calmly and gradually, after he has been properly prepared for that new situation, as may be seen from the expert’s convincing submissions on that point. The ground of appeal is therefore ill-founded and must be rejected ...”

The father lodged a civil appeal with the Federal Court seeking the quashing of the Cantonal Court’s judgment and the return of the child to Israel. He alleged that the court had misapplied Article 13, sub-paragraph (b), of the Hague Convention, principally, and Article 3 of the United Nations Convention on the Rights of the Child, secondarily.

In a decision of 27 June 2007, the President of the appropriate division of the Federal Court granted the father’s request for immediate suspension of the judgment.

In a judgment of 16 August 2007, served on the first applicant’s lawyer on 21 September 2007, the Federal Court allowed the father’s appeal. The relevant passages of its judgment read as follows:

“3. The object of the Hague Convention on the Civil Aspects of International Child Abduction is to secure the prompt return of children wrongfully removed to or retained in any Contracting State (Article 1, sub-paragraph (a)). The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention (Article 3, sub-paragraph (a)). ‘Rights of custody’ include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence (Article 5 (a)). In the present case it is not in dispute that the child’s removal to Switzerland was wrongful, since the father retained, jointly with the respondent, the right of ‘guardianship’, which under Israeli law includes the right to decide on the child’s residence. Moreover, since the application for return was presented within a period of one year after the removal, the respondent cannot deny either that, in principle, pursuant to Article 12 of the Hague Convention, the child’s prompt return should be ordered. The only matter in dispute is therefore the question whether an exception to that return may be applied under Article 13, sub-paragraph (b), of the Hague Convention.

According to the appellant, by refusing to order the child’s return to Israel, the Cantonal Court misapplied Article 13, sub-paragraph (b), of the Hague Convention.

4.1 Under Article 13, sub-paragraph (b), of the Hague Convention, in respect of which the Federal Court is entitled to examine matters of compliance freely (section 95(b) of the Federal Court Act), the judicial authority of the requested State is not bound to order the child’s return when the person opposing that return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

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 (judgment 5P.71/2003 of 27 March 2003, recital 2.2, in FamPra.ch 2003, p. 718). Only grave risks must be taken into consideration, excluding any grounds relating to the parents’ child-rearing capacities, as the purpose of the Hague Convention is not to attribute parental authority (Federal Court judgment 131 III 334, recital 5.3; 123 II 419, recital 2b, p. 425). An exception to return under Article 13, sub-paragraph (b), of the Hague Convention, is therefore not open to consideration unless the child’s intellectual, physical, moral or social development is under serious threat (judgment 5P.65/2002 of 11 April 2002, recital 4c/bb, in FamPra.ch 2002, p. 620 and the reference cited therein). The burden of proof lies with the person who opposes the child’s return (ibid., recital 4b, in FamPra.ch 2002, p. 620 and the reference cited therein).

4.2 The Cantonal Court observed that the case concerned a very young child in the custody of his mother, who had always provided for him. The father, for his part, lived in a religious community where he was fed, and from his activity as a sports and art teacher he had a monthly income of only 300 [Swiss] francs. The custody of the child had been withdrawn from him on account of the atmosphere of fear that he had created at the family home. For the same reason, the Israeli courts ordered him to live separately and prohibited him from approaching the mother’s flat. Before the child’s removal to Switzerland he had only had a restricted right of visitation, limited to two hours twice a week, under the supervision of the Israeli social services. Concerning the conditions of a possible return of the child without his mother, according to the information provided by the Israeli Ministry of Justice on 12 March 2007, the father, who now shares a flat with one other tenant and still works in an institution for religious education, would be prepared to take care of the child. Taking into account the laconic and not very reassuring nature of this information, together with the expert’s report by Dr ..., a psychiatrist, the Cantonal Court considered that a return to Israel involved a risk of psychological harm for the child and might place him in an intolerable situation, whether or not he was accompanied by his mother. The court added that, in view of the father’s low income, the return to Israel of the respondent would also undermine the child’s economic stability and the mother would have to find a job in order to provide for them both.

In his appeal, the appellant does not criticise the Cantonal Court’s finding that there was a grave risk that the child would be exposed to psychological harm if he returned to Israel without his mother. He is of the opinion, however, that such a risk would not exist if the child’s mother accompanied him to Israel, as could be reasonably expected of her. As regards that latter hypothesis, the judgment of the Cantonal Court fails to provide any evidence of such a grave risk of harm, or of any intolerable situation for the child. The expert psychiatrist failed, in particular, to address that question, simply explaining that the risk could not be assessed without ascertaining the conditions of a possible return. As to the appellant’s aggressive behaviour towards the respondent, it does not appear from the Cantonal Court’s judgment that the child would be threatened directly or indirectly as a result of witnessing such violence against his mother. She stated that the father had complied with the arrangements for his right of visitation and that the visits had gone well. The social worker appointed to supervise the right of visitation had described as ‘wonderful’ the father-son relationship as established just before the child’s abduction by his mother. She has not claimed that the appellant breached the judicial instructions which required him not to approach her flat or to disturb and/or harass her. As to the considerations relating to the father’s low income and his ties with the ‘Lubavitch’ religious community, as they stand they do not indicate a grave risk that the child would be exposed to harm within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. Whilst such considerations may help to determine which of the two parents offers the best child-rearing capacities for the purpose of deciding on the attribution of the right of custody – a matter that is decided by the judicial authorities of the place of habitual residence (Article 16 of the Hague Convention) – they are not pertinent, however, for a decision about the return of a child after a wrongful abduction (see recital 4.1 above).

As to the mother’s threat not to return to Israel, the judgment of the Cantonal Court did not deal at all with the reasons for her refusal, whereas it should have established the existence of objective circumstances justifying that attitude. The Cantonal Court judges quoted the expert psychiatrist who had referred to the ‘judicial risks’ that would be entailed in the event of a return to Israel, without any indication as to whether the respondent actually faced a prison sentence as a result of the abduction. Supposing that such a risk 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. She made no comment on that question in her reply to the Federal Court; in particular, she has not claimed that immediate imprisonment, or even any criminal sanction at all, would be imposed on her. Neither has she argued that in the event of her return to Israel it would be impossible or very difficult for her to integrate, or, in particular, to find a new job. Consequently, it cannot be said that the mother’s return, and therefore that of the child, would be unbearable for economic reasons either. Therefore, as the respondent has failed to establish the existence of reasons that would objectively justify a refusal on her part to return to Israel, it must be accepted that she could reasonably be expected to return to that State of origin accompanied by the child. In these circumstances, it is of no import that the information provided by the Israeli Central Authority (see recital 4.2 above) on which the Cantonal Court based, in particular, its justification of the exception to the child’s return as provided for by Article 13, sub-paragraph (b), of the Hague Convention, was deemed not very reassuring, because that information was based only on the hypothesis of the child’s return without his mother.

Accordingly, the Cantonal Court judges breached Article 13, sub-paragraph (b), of the Hague Convention in finding that they were entitled to apply an exception to the child’s return to the State of his habitual residence. The appeal must therefore be allowed and the judgment of the court below quashed, without it being necessary to examine the complaint concerning a violation of Article 3 of the Convention on the Rights of the Child. It is incumbent on the respondent to secure the return of the child ... to Israel by the end of September 2007. ...

The Federal Court therefore finds as follows:

The appeal is allowed and the judgment of the court below is quashed.

The respondent is ordered to secure the return of the child ... to Israel by the end of September 2007.

On 20 August 2007 the child’s father, through counsel, lodged an application with the Lausanne District Justice of the Peace, who was responsible for the enforcement of the return decision, seeking the appointment of an ad hoc administrator for the child who would be entrusted with the organisation of his departure. On 1 October 2007 he withdrew that application after the Court had decided, on 27 September 2007, to indicate interim measures to the Government.

Subsequently, the applicants transmitted to the Court a medical certificate issued on 23 February 2009 by Dr M.-A., a paediatrician in Lausanne, which reads as follows:

“I, the undersigned, certify that I have seen the child Noam Shuruk, born on 10 June 2003, on a number of occasions since 7 October 2005.

On each occasion Noam has been accompanied by his mother, with whom he has a very good relationship.

His behaviour is appropriate and his level of psychomotor development and language are above average. He does not appear to suffer from any psychological trauma or from any emotional or educational deficiencies.

He is a confident boy, capable of forming good relationships, in particular with adults.

He is in good physical health, with little trace of intercurrent infections.

An abrupt return to Israel without his mother would constitute a significant trauma and a serious psychological disturbance for this child.”

In a provisional-measures order of 29 June 2009 the President of the Lausanne District Court, at the request of the first applicant, decided that Noam should live at his mother’s address in Lausanne, suspended the father’s right of access in respect of his son and granted parental authority to the mother, so as to allow her to renew the child’s identity papers. The decision was based on the following grounds in particular:

“[I]t is noted that the respondent was summoned to appear by court order served at his last known address in Israel.

The letter was returned marked ‘gone away’, which can be translated as ‘parti sans laisser d’adresse’ (gone without leaving a forwarding address).

... It appears that the mother has custody of the child while parental authority is still held jointly.

The father was apparently required to ‘exercise a right of visitation’ under the supervision of the social services ...

In the context of the proceedings, the respondent never appeared at the hearings but was represented by counsel, who is apparently no longer acting for his client ...

According to case-law, the wrongful removal of a minor does not in itself preclude the establishment of a new habitual residence for the child in the country to which it has been taken (see Federal Court judgment 125 III 301, Journal des Tribunaux 1999 I 500).

In the present case, Noam has been living in Switzerland continuously since June 2005.

He attends school there.

He has family ties there on his mother’s side.

He receives medical attention there.

He is also a national of Switzerland,

of which he speaks the language, in this case French.

Interim measures in favour of the applicant were decided by the European Court of Human Rights, which requested the Swiss Government not to return Noam to Israel in spite of the Federal Court’s decision.

Despite his legal battle, the respondent has never sought to see his child,

and his place of residence is unknown.

He appears to have lost interest in the present case.

Consequently, the child now has a stable relationship only with his mother.

It is therefore appropriate to allow her application and to decide provisionally that Noam should reside in Lausanne, Switzerland, at the place of his habitual residence, with his mother.

Article 273 § 1 of the Civil Code provides that the father or mother not having parental authority or custody and the minor are reciprocally entitled to maintain such personal relations as may be appropriate in the circumstances.

The right to personal relations is intended to preserve the bond between parents and children ...

The maintaining and development of this bond is obviously beneficial to the child.

Personal relations must accordingly be fostered, unless the child’s welfare is endangered.

The scope of personal relations and the manner in which they are carried on should be appropriate to the situation, in other words taking fair account of the parti

The child’s welfare is the most important assessment criterion (see Federal Court judgment 127 III 295, с 4a).

The entitled person’s situation and interests should also be taken into consideration: his or her relationship with the child, personality, place of abode, free time and environment.

Special conditions for the exercise of access rights may be imposed ...

The applicant has requested the withdrawal of the respondent’s access right in respect of their son Noam.

I’s access right was already limited by decisions given by the Israeli authorities before the child’s departure for Switzerland.

The child has not seen his father since 2005.

They apparently have no common language.

In any event, the resumption of access rights, if requested by the respondent, could only be gradual.

The respondent’s place of residence is currently unknown.

In the circumstances it appears appropriate to order the provisional suspension of the respondent’s access rights in respect of his son Noam.

The applicant requests that ‘parental authority in respect of Noam, born on 10 June 2003, be exclusively and provisionally granted to his mother Isabelle Neulinger in Lausanne for the purposes of renewing his identity papers’.

The applicant has explained that her son, who has dual Israeli and Swiss nationality, currently has no identity documents.

He had a Swiss passport until recently.

However, when it expired the administrative authorities refused to issue him with a new one without the father’s consent, as the parties had joint parental authority in respect of the child.

The respondent’s place of abode is currently unknown.

The applicant is thus unable to ask him for such consent.

The child lives in Switzerland with her,

and she has custody of him.

The present case, on the merits, admittedly concerns a change in the attribution of parental authority, since the applicant requests that by virtue of Swiss law it be exclusively granted to her.

It may appear that the provisional measure requested, if granted, settles the case on the merits.

However, the requested measure is far more limited in scope since it is only to ensure the possibility of obtaining identity papers for the applicant’s child.

The child is a Swiss national resident in Switzerland.

It is therefore necessary for him, like any other citizen, to obtain identity papers.

The applicant’s request is therefore granted.

It does not appear, from the information currently before the Court, that either party to the dispute has appealed against that decision.

The relevant provisions of the Convention on the Rights of the Child of 20 November 1989, which came into force in respect of Switzerland on 26 March 1997, read as follows:

“The States Parties to the present Convention,

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,

Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ...

Have agreed as follows:

“1. The child shall be registered immediately after birth and shall have the right from birth to ... know and be cared for by his or her parents. ...”

“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ...”

“1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. ...”

“1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

The concept of the child’s best interests stems from the second principle of the Declaration of the Rights of the Child adopted by the United Nations on 20 November 1959. It provides as follows:

“The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.”

The term was used again in 1989 in Article 3 § 1 of the Convention on the Rights of the Child:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Neither the working group during the drafting of the Convention nor the Committee on the Rights of the Child has developed the concept of the child’s best interests or proposed criteria for their assessment, in general or in relation to specific circumstances. They have both confined themselves to stating that all values and principles of the Convention should be applied to each particular case (see Rachel Hodgkin and Peter Newell (eds.), Implementation Handbook for the Convention on the Rights of the Child, United Nations Children’s Fund 1998, p. 37). In addition, the Committee has emphasised on various occasions that the Convention must be considered as a whole, with the relationship between the various articles being taken into account. Any interpretation must be consistent with the spirit of that instrument and must focus on the child as an individual having civil and political rights and its own feelings and opinions (ibid., p. 40).

The “Guidelines on Determining the Best Interests of the Child” were issued by the United Nations High Commissioner for Refugees (UNHCR). They provide, inter alia:

“The term ‘best interests’ broadly describes the well-being of a child. Such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences.” (UNHCR Guidelines on Determining the Best Interests of the Child, May 2008)

The principle of “the child’s best interests” is also embodied in Articles 5 and 16 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women. Article 5 (b) reads as follows:

“States Parties shall take all appropriate measures:

(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.”

Under Article 16 § 1 (d) of that Convention, States are committed to ensuring the following, with regard to equality between men and women:

“[t]he same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; [and] in all cases the interests of the children shall be paramount”.

Even though the principle does not appear in the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee in its General Comments Nos. 17 and 19 referred to “the paramount interest” of the child in the event of the separation or divorce of its parents. In its General Comment 17 (adopted at its 35th Session, 1989) the Committee stated that if a marriage is dissolved, steps should be taken, keeping in view the paramount interest of the children, to guarantee, so far as is possible, personal relations with both parents. For abandoned children, special measures must be taken in order to enable them to develop in conditions that most closely resemble those characterising the family environment. In its General Comment No. 19 (adopted at its 39th Session, 1990) the Committee indicated that any discriminatory treatment in regard to divorce, child custody, visiting rights, etc., must be prohibited, unless the paramount interest of the child required otherwise.

The European Union’s Charter of Fundamental Rights, which became legally binding with the entry into force of the Lisbon Treaty on 1 December 2009, contains the following Article:

“1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”

The relevant provisions of the Hague Convention, which came into force in respect of Switzerland on 1 January 1984, read as follows:

“The States signatory to the present Convention,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:

The objects of the present Convention are:

(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

The removal or the retention of a child is to be considered wrongful where:

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.

For the purposes of this Convention –

(a) ’rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;

(b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.

If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of cooperation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.

The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.”

The Explanatory Report by Ms Elisa Pérez-Vera on the drafting of the Convention states as follows:

“... since one factor characteristic of the situations under consideration consists in the fact that the abductor claims that his action has been rendered lawful by the competent authorities of the State of refuge, one effective way of deterring him would be to deprive his actions of any political or juridical consequences. The Convention, in order to bring this about, places at the head of its objectives the restoration of the status quo ...”. (paragraph 16, p. 429)

However, the Hague Convention contains five exceptions to the principle of the child’s prompt return, among which the most commonly invoked exception is that of Article 13, sub-paragraph (b).

The French Court of Cassation, the House of Lords and the Finnish Supreme Court have all expressly incorporated the concept of the “child’s best interests” into their application of the exception based on a “serious risk” within the meaning of Article 13, sub-paragraph (b), of the Hague Convention.

In a case from 2005, the French Court of Cassation stated the following:

“... under Article 13, sub-paragraph (b), an exception can be made to the child’s prompt return only if there is a grave risk of harm or of the creation of an intolerable situation;”

and

“by virtue of Article 3 § 1 of the [United Nations] Convention on the Rights of the Child, a provision that is directly applicable before the French courts, such circumstances must be assessed with the child’s best interests as the primary consideration”. (Court of Cassation, First Civil Division, 14 June 2005, appeal no. 0416942)

That court thus upheld a judgment of the Aix-en-Provence Court of Appeal of 13 May 2004, finding as follows:

“... the child’s best interests [had been] taken into consideration by the Court of Appeal, which [had] accordingly reached the conclusion ... that it was appropriate to order the prompt return of the child under the Hague Convention.”

The Finnish Supreme Court conducted a similar assessment in applying the exception under Article 13, sub-paragraph (b), indicating as follows:

“... the court had pointed out that a grave risk of harm would not exist if the mother returned to France with her children and ensured that their living conditions were adapted according to their best interests ...” ([27 December 1996] Supreme Court of Finland 1996:151, S96/2489)

In a case examined on 16 November 2006 by the House of Lords concerning the abduction of a child from Romania to the United Kingdom, Lord Hope observed:

“... it is impossible to believe that the child’s best interests would be served by his return forthwith to Romania.” (In re D (a child), [2006] UKHL 51, [2007] 1 AC 619)

Article 5 (a) of the Hague Convention defines custody rights as “rights relating to the care of the person of the child, and, in particular, the right to determine the child’s place of residence”. The Convention recognises that custody may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the State in which the child had its habitual residence immediately before removal or retention (Article 3 in fine). Furthermore, the Explanatory Report on the Convention emphasises the drafters’ intention to protect all the ways in which custody of children can be exercised and recognises that there can be wrongful removal or retention even if parents have joint custody of their child:

“In terms of Article 3, custody rights may have been awarded to the person who demands that their exercise be respected, and to that person in his own right or jointly. ... Now, from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise” (Explanatory Report by Elisa Pérez-Vera, Acts and Documents of the Fourteenth Session, vol. III, Child Abduction, Hague Conference on Private International Law, paragraph 71, pp. 447-48)

The drafters of the Convention created an autonomous definition of custody rights quite apart from domestic-law interpretations of that concept. This autonomous nature was confirmed in the “Overall Conclusions of the Special Commission of October 1989 on the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction” (§ 9, p. 3), which stated as follows:

“... ‘rights of custody’ as referred to in the Convention on the Civil Aspects of International Child Abduction constitute an autonomous concept, and thus such rights are not necessarily coterminous with rights referred to as ‘custody rights’ created by the law of any particular country or jurisdiction thereof. ... [T]he award of what is called ‘custody’ to only one parent under domestic law, does not necessarily mean that all ‘rights of custody’ within the intent of the Hague Convention have been granted to that parent. Since each domestic legal system has its own terminology for referring to rights which touch upon the care and control of children, and even some English-language systems do not employ the term ‘custody’, it is necessary to look to the content of the rights and not merely to their name.”

The autonomous meaning of “rights of custody” was further confirmed during the second meeting of the Special Commission when the following conclusion, among others, was adopted:

“... the expression ‘rights of custody’ ... does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention.” (Report of the Second Special Commission Meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction held on 18-21 January 1993, p. 4)

In addition, according to the Explanatory Report, the Convention is engaged only by issues relating to breaches of custody rights. It does not in principle concern situations arising from breaches of access rights, in particular where the child is taken abroad by its custodian (Explanatory Report, paragraph 65).

The Hague Convention provides no enforcement mechanism or oversight body to ensure that Contracting States implement it. Therefore, it is possible that the case-law of domestic courts relating to the Hague Convention may differ from one Contracting State to another. In practice, there is a lack of consistency in the interpretation of the various judicial bodies as regards the Hague Convention’s distinction between custody rights and access rights, more specifically where they have to decide whether to grant the remedy of return to non-custodial parents who hold access rights.

However, there seems to be a trend towards a wide interpretation of wrongful removal or retention, thus broadening the scope of custody rights to allow types of parenting other than the holding of custody rights to benefit from the Convention’s protection.

In the case of C. v. C. (England and Wales Court of Appeal; [1989] 1 WLR 654, 657-58), for example, a custodial parent had removed a child from Australia in breach of a restraining order (also called a ne exeat order, prohibiting a child’s removal from a given geographical area). In that case the child could not be removed without the consent of the non-custodial parent. The court found that the Convention’s judicial remedy of return applied. They justified this reasoning by equating the ability to grant or withhold consent for relocation with a custodial “right to determine the child’s place of residence”.

The Family Court of Australia took the same approach in the case of José García Resina, where a father lodged an application under the Convention for the return of his children after they had been taken to France by their maternal grandparents (José García Resina and Muriel Ghislaine Henriette Resina, [1991] FamCA 33). The Australian court considered both a custody order, which gave the father “reasonable access” to the youngest child, and an injunction restraining both the mother and the father from removing the children from Australia. It ultimately ordered the return of the children pursuant to the Convention because their removal had violated the father’s custody rights that had been created by the restraining order. Similarly, the Israeli Supreme Court found that a custody agreement between parents contained a mutual consultation clause for major changes and unusual events, which implicitly included decisions on the residence of the child (Foxman v. Foxman, Israeli Supreme Court, 1992). The court thus considered that the father had rights of custody within the meaning of the Convention.

It appears that other national courts, in particular in common-law countries, have largely cited the C. v. C. case and have followed its general holding that if the custodial parent needs permission from the court or the non-custodial parent before removing the child from a country, a removal without such permission may be regarded as “wrongful” within the meaning of Article 3 of the Hague Convention (see Re F, England and Wales Court of Appeal, [1995] 3 WLR 339, where the father had rights of custody, even though the mother had a court order giving her temporary “care and control” and there was no order barring the child’s removal).

However, the practice of domestic courts is not homogeneous. Thus, for example, the United States Court of Appeals found that access rights coupled with a ne exeat clause did not constitute “rights of custody” within the meaning of the Hague Convention (Croll v. Croll, 229 F.3d 133, 143, Second Circuit, 2000).

On 21 December 2007 the Swiss Federal Parliament enacted the “Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults”, for the purpose of clarifying certain notions, especially in relation to the application of the Hague Convention of 1980. The Act came into force on 1 July 2009. The sections of the Act referred to by the applicants read as follows:

“The return of a child places him or her in an intolerable situation, within the meaning of Article 13, sub-paragraph (b), of the Hague Convention, in particular where the following conditions are met:

(a) placement with the parent who lodged the application is manifestly not in the child’s interests;

(b) the abducting parent is not, given the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction, or this cannot reasonably be required of that parent; and

(c) placement in the care of a third party is manifestly not in the child’s interests.”

“The court dealing with the application for the return of the child shall decide, as required, on the child’s personal relations with his or her parents and order the measures necessary to ensure his or her protection.

Where the application for return has been received by the Central Authority, the competent court may, at the request of the Central Authority or any of the parties, order the appointment of a representative or a guardian for the child, or take other protective measures even if the application for return is not yet pending before the court.”

In connection with the federal decree concerning this Act, the Federal Council submitted to Parliament a “dispatch” (Feuille Fédérale 2007, pp. 2433-682), of which the relevant passages read as follows:

In order to ensure an application of the Hague Convention of 1980 that is better adapted to the interests of the child, it is necessary for the legislature to specify the various situations in which the return of the child can no longer be taken into consideration because it would place him or her in a manifestly intolerable situation. The rule in section 5 is not supposed to supersede the provision of Article 13, sub-paragraph (b), of the Hague Convention of 1980. The term ‘in particular’ means that the list merely enumerates a few situations which – although essential – do not preclude reliance on the clause provided for in the Convention.

Firstly, sub-paragraph (a) refers to the situations in which the child’s accommodation by the parent who requested the return is manifestly not in the child’s interests. If that is not so, in particular where the parent who lodged the application has an exclusive right of custody or is the only one who could be granted such responsibility, there will not, in principle, be any cause for fear that the child will be placed in an intolerable situation on his or her return and therefore there is no reason why the return should be refused. This will not be the case where it appears obvious to the court that the party lodging the application would not be able to take care of the child.

Sub-paragraph (b) governs cases in which the appropriateness of the child’s return can be assessed only from the standpoint of his or her relationship with the abducting parent. Where the child’s accommodation by the parent who requested the return is manifestly not to be taken into consideration, the problem of his or her return to the State of origin will be addressed differently, depending on whether the person who wrongfully removed or retained the child (usually the mother) is or is not in a position to return to that State. If the said parent is not able to do so because, for example, he or she faces a prison sentence that would lead to separation from the child or because the parent has very close family ties in Switzerland (for example following remarriage or on account of a situation of hardship suffered by another family member living in Switzerland), the child’s psychological and physical stability may be at stake, because the child would, after the return, be obliged to live apart from his or her parents. Such separation is tolerable only in exceptional cases and must constitute an ultima ratio.

Second type of situation: where, given all the circumstances, it cannot reasonably be required of the abducting parent that he or she take care of the child in the State where the child had his or her habitual residence immediately before the abduction (section 5(b)). It is not sufficient for the parent who wrongfully removed or retained the child to state that he or she refuses to return to that State. He or she would also have to be in a situation of hardship such that he or she could not reasonably be expected to return to his or her place of prior residence to await there, with the child, the court’s final decision on the granting of custody. In that context, we have in mind especially those cases in which the mother cannot be guaranteed safe or affordable accommodation outside the home of her former partner. One must further take into account those cases in which the parent who has requested the return of the child will not resume the exercise of the right of custody and will not obtain it by court order, whilst the abducting parent is clearly the child’s primary carer. In such a case the child would only be taken to the State of origin to await the final attribution of the right of custody to the abducting parent, before coming back to Switzerland again with that parent. Such coming and going would ultimately only have served the purpose of bringing the case before the authorities of the former State of residence. Such a solution would be inadmissible according to the spirit and purpose of the Hague Convention, because it would be incompatible with the child’s interests. But the situation would have to be beyond doubt for the Swiss court dealing with the request for return. Unless the circumstances can be established clearly, the court will have to rule that the return to the parent’s State of origin is bearable and that, accordingly, the child will not be placed in an intolerable situation such as to justify a decision denying the return under Article 13, sub-paragraph (b), of the Hague Convention.

Sub-paragraph (c) refers to placement with third parties. If the child’s return were to lead to separation from the parent who wrongfully removed or retained the child (because return is impossible for that parent or cannot reasonably be required of him or her), it could only be carried out in appropriate conditions if the child were placed with a third party in the State of origin. However, such a solution should only be sought, with the resulting possibility for the competent Swiss court to order the child’s return, if placement with a third party is not manifestly contrary to the child’s interests. That third condition can be satisfied only if separation from the parent remaining in Switzerland is bearable for the child – which may be the case where he or she has an antagonistic relationship with that parent – and if the foster family receiving the child can provide proper guarantees as to the protection and normal upbringing of the child. In any event, such a situation should only be envisaged as an ultima ratio.

It must further be noted that, for the return to be compatible with the child’s interests and, in particular, for the conditions of Article 13 of the Hague Convention to be fulfilled, the authority ruling on the matter has to be apprised of the situation prevailing in the State of origin and of the legal provisions in force there. Thus, the parties, and in particular the parents, have a duty to participate in the establishment of the facts. The hearing of the parties in person by the court (section 9(1) and (2)) is therefore of great importance. The new provisions concerning the procedure and the cooperation with the competent authorities of the State of origin also play an essential role. The court must be able to verify whether, and in what manner, it is possible to ensure the child’s return (section 10(2)). If it does not succeed in that task, or succeeds only partially, it will not be in a position to weigh up all the consequences that a return might have for the child. The same will be true if it does not succeed in obtaining from the local authorities any reliable assurances as to the conditions of the child’s reception and protection, in particular when there is some doubt about the requesting parent’s capacity to look after the child properly. In this respect, section 10 is thus directly related to the practical application of section 5.”

The concept of guardianship is defined in Chapter 2 of the Capacity and Guardianship Law 1962. The term custody is not defined as such but is mentioned.

Section 14 of that Law provides that “[p]arents shall be the natural guardians of their minor children”. In Israel, parents, whether married, divorced or unmarried, are joint and equal guardians of their children. The term “guardianship” may be regarded as equivalent to “parental authority” in other jurisdictions.

Guardianship is an automatic right which both parents acquire and can only be restricted or removed in exceptional circumstances (where a Magistrate’s Court adopts one of the measures mentioned in section 3(3) or (4) of the Youth (Care and Supervision) Law). This rule is set out in section 27 of the Law.

Section 15 defines and describes the role of parents in Israeli law and outlines what parental guardianship entails in the following terms:

“The guardianship of the parents shall include the duty and the right to take care of the needs of the minor, including his education, studies, vocational and occupational training and work and to preserve, manage and develop his property; it shall also include the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf.”

Section 17 sets the standard of parents’ duties. It states that in exercising their guardianship, “parents [must] act in the best interests of the minor in such manner as devoted parents would act in the circumstances”.

There is a general presumption that parents should cooperate in taking decisions relating to their guardianship (section 18). However, where no agreement is reached, they may refer to the court to decide the issue (section 19).

Section 24 provides that, when parents live apart, they may reach an agreement as to: who is going to have guardianship of the minor, wholly or in part; who is going to have custody of the minor; and what rights the other parent is going to have, in particular as regards contact with the child. Such an agreement is subject to the approval of the court.

Under section 25, if the parents cannot reach such an agreement these issues may be determined by the court having regard to the best interests of the child.

Section 25 further creates a presumption of custody in favour of the mother for children under six years old unless there are special reasons for directing otherwise.

Accordingly both parents share joint decision-making authority regarding their child’s place of residence. One parent cannot remove the child from Israel without the permission of the other parent or of a court. If one parent wishes to remove the child from Israel without the other parent’s consent, then the parent wishing to leave must apply to the Israeli courts for a relocation order and an order for custody of the child.


The applicant, Valeriy Filippovich Shestakov, is a Russian national, who was born in 1945 and lives in Pskov, Russia.

The facts of the case, as submitted by the parties, may be summarised as follows.

In May 1998 the applicant placed 2,200 US dollars on a three-month deposit account in the Pskov branch of the SBS-Agro Bank («СБС-Агро»), then one of the largest banks in Russia. In August 1998, during a financial crisis and rapid currency devaluation, the applicant requested the Bank to refund the capital with interest. The Bank refused. On 8 October 1998, at the applicant's request, the Pskov City Court ordered the Bank to pay him the money owed together with interest.

In its judgment, the Pskov City Court excluded from the time for calculating interest the period from 28 August 1998 to 20 September 1998, pursuant to decisions of the Russian Central Bank temporarily to halt all operations on private deposits due to a banking crisis. The applicant appealed that part of the decision, and requested the Pskov branch of the Bank to be named as respondent, and not its Moscow headquarters. The Pskov Regional Court rejected the applicant's appeal and confirmed the decision of the City Court on 17 November 1998.

The decision was forwarded by the Pskov City Court for enforcement to the Moscow Bailiff's service, as the Bank's headquarters were situated in Moscow.

The applicant complained about this decision to various judicial and executive authorities, including the Pskov City Court, the Pskov Regional Court, the Pskov Regional and General Prosecutor's Office and the Ministry of Justice.

On 22 and 28 April 1999 the applicant was informed by the Bailiff Service of the Moscow City Department of Justice that enforcement proceedings (исполнительное производство) had been initiated by a bailiff in Moscow on 8 January 1999. The applicant did not receive a copy of that decision. The applicant was also informed that the bailiff in charge of the case had taken measures under the Law on Enforcement Procedure (Закон «Об исполнительном производстве»), including the freezing of the Bank's assets, funds and real estate. However, the Bank's funds were not sufficient to satisfy the numerous creditors who also had enforcement proceedings pending against Bank. The applicant was informed that he had to wait until the Bailiff Service had money on its account to enforce the decision.

On 7 May 1999 the applicant was informed by the Bailiff Department of the Russian Ministry of Justice that, by the end of March 1999, over 2,000 enforcement proceedings had been initiated against the Bank, with an additional 70-80 being initiated every week. The applicant was informed that the bailiffs had seized the Bank's cars, real property and other assets. The Department also informed the applicant that it was monitoring the enforcement of the court decisions against the Bank, and that the applicant would be notified as soon as funds were available to pay him.

On 13 August 1999 the applicant was informed by the Moscow Bailiff Service that the consolidated enforcement proceedings were continuing, and that the applicant's number in the list of creditors was 430. The letter further stated that the applicant would be informed of developments in his case.

On 16 August and 15 September 1999 the Central Bank of Russia declared a moratorium until 17 November 1999 on execution of all creditors' demands against the Bank. On 16 November 1999 the management of the Bank was taken over temporarily by the “Agency on Restructuring of Lending Agencies” (ARKO), set up by the State in accordance with the Law on Restructuring of Lending Agencies (Закон «О реструктуризации кредитных организаций»). On 16 November 1999, in accordance with the same Law, a moratorium was f all creditors' demands against the Bank for a year. This period was prolonged by ARKO on 17 November 2000 for another six months, until 17 May 2001. On 3 July 2001 the Constitutional Court found unconstitutional the legislative provision that allowed ARKO unilaterally to extend the moratorium for another six months, and ruled that such decisions should be subject to judicial control.

After the communication of the complaint to the Russian Government on 22 March 2000, the applicant continued his efforts to have the court decision enforced. In particular, he sued the Moscow City Department of Justice for compensation for pecuniary and non-pecuniary damage. His claim was rejected in the final instance by the Moscow City Court on 4 July 2001. He also filed a request with the Moscow Commercial Court (Арбитражный Суд г. Москвы) for the Bank to be declared bankrupt, but his request was rejected on 16 August 2000 for lack of standing under national law. It also appears that the applicant attempted to complain about the actions of the Bailiff Service. On 15 May 2000 and on 19 June 2000 the Presnenskiy District Court of Moscow adjourned consideration of the complaint, as the applicant failed to distinguish between a complaint and a claim for damages. On 30 October 2000 the same court rejected the applicant's request to have the requirement to pay a fee for bringing his civil claim against the Bailiff Service lifted. On 1 August 2000 the same court adjourned the applicant's complaint concerning the actions of ARKO on account of his failure to comply with formal requirements. In October 2001 the Meshchanskiy District Court of Moscow rejected the applicant's claim for compensation against the Central Bank for pecuniary and non-pecuniary damage

On 8 May 2001 the Moscow Commercial Court approved the text of a tripartite friendly settlement involving the Association of the Bank's Creditors, the Bank and ARKO. The text of the friendly settlement was adopted at the general meeting of the Association of Creditors on 9 February 2001 by a majority of votes. The applicant, who had been invited to the meetings in November 2000 and February 2001, did not participate and it is not clear if he submitted his vote by post. According to the agreement, the applicant is entitled to the immediate refund in cash of 10 per cent of his deposit, and to two bonds of 1,000 USD each with maturity dates in 2007 and 2008.

On 22 June 2001 the Appeal Chamber of the Moscow Commercial Court (апелляционная инстанция Арбитражного Суда г. Москвы по проверке законности и обоснованности решений арбитражных судов, не вступивших в законную силу), and on 11 August 2001 the Federal Commercial Court for the Moscow Region (Федеральный Арбитражный Суд Московского округа) confirmed the decision of 8 May 2001.

In the same set of proceedings the courts reviewed the complaints of those creditors who were dissatisfied with various aspects of the friendly settlement. The courts found the settlement and the procedures leading to its conclusion to be in accordance with national legislation. In particular, the courts rejected the complaint that the moratorium, and later the friendly settlement, conflicted with the principles of compulsory execution of judgments and inviolability of property rights. The courts referred to the decision of the Russian Constitutional Court of 3 February 2000 on the constitutionality of a legislative provision allowing the Central Bank to declare a moratorium on the execution of a lending agency's debts. It noted that the aim of these provisions was to ensure a fair division of assets among all the creditors of a bank, which would not be possible if the “first-come-first-served” principle were to be applied. The courts also noted that the Law on Enforcement Procedure allowed closure of enforcement proceedings once a friendly settlement between the parties had been approved by a court.

On 23 July 2001, following an order of the Basmanny District Court of Moscow, the Moscow Bailiff Service closed the consolidated enforcement proceedings on court decisions against the Bank. The applicant appealed against this order, and on 8 April 2002 the Basmanny District Court found the bailiff's actions lawful, as they were based on a previous court order.

Throughout 2001 the applicant was informed by ARKO, the Bank and the Central Bank about the terms of the agreement. In December 2001 ARKO informed the applicant that over 97% of the total number of debtors had presented their claims and benefited from the terms of the agreement. The scheme would remain open until 1 April 2002, after which date the remaining liabilities would be deposited with a public notary.

In an unrelated set of proceedings, the applicant complained that in 1997 his apartment was burgled. The burglars, G. and V., were convicted in December 1997, sentenced to prison terms and ordered to compensate the applicant for the value of the stolen items. These sums were not paid until October 1999, as the debtors were in prison and did not have any assets. The applicant applied to the Pskov City Court to have the amount adjusted to take account of inflation. The Pskov City Court rejected the claim on 6 May 1999. Its decision was confirmed by the Pskov Regional Court on 10 June 1999.

On 17 March 2000 the Presidium of the Pskov Regional Court, acting upon a request for supervisory review lodged by the Pskov Regional Prosecutor, quashed the decisions of 6 May 1999 and 10 June 1999 and remitted the case for a new consideration. On 20 March 2001 the Pskov Regional Court awarded the applicant 6,700 roubles, to be paid jointly by G. and V. On 26 April and 7 May 2001 the Pskov Bailiff Service opened enforcement proceedings. On 17 July 2001 these proceedings were adjourned in respect of debtor G. as his location was unknown. The applicant did not appeal against this order.

Article 9 of the Law on Enforcement Procedure provides that the bailiff shall issue within three days after receiving a court order an act initiating enforcement procedure (постановление о возбуждении исполнительного производства). Copies of the act are to be forwarded to the parties and to the court which made the order. Article 11 provides that the enforcement proceedings take place at the location of the debtor or his property. Article 13 provides that the bailiff shall enforce the order within two months from the date of receiving it. Article 90 provides that complaints about actions of the bailiff should be submitted to the district court for the area where the bailiff is located.

The Law on Insolvency (bankruptcy) of Lending Agencies (Закон «О несостоятельности (банкротстве) кредитных организаций»), Article 26 thereof, provides that the Bank of Russia may introduce a three-month moratorium on execution of all debts of a bank/lending agency if there is a threat of bankruptcy.

The Law on Restructuring of Lending Agencies gives details on the transfer of the management of a lending agency to the Agency on Restructuring of Lending Agencies (ARKO). Article 13 states that when ARKO takes over management of a bank/lending agency which is under threat of bankruptcy, a moratorium of 12 months is declared on execution of all its debts. ARKO may extend the moratorium for another six months.

On 3 July 2001 the Constitutional Court adopted a decision (Постановление Конституционного Суда Российской Федерации № 10-П) by which it found unconstitutional the legislative provisions which allowed ARKO to extend a moratorium for six months. The Court noted that ARKO was not a public authority and that it enjoyed an unlimited discretion in this decision, which could interfere with the rights of creditors. It further noted that ARKO's actions should be subject to judicial control.