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Neulinger & Shuruk v. Switzerland

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SageDad:
Best interests determinations will always be subjective and influenced, or directly determined, by the gender, national, religious, cultural, ethnic, ideological et al biases of the interpreter.  This is, comically in fact, an instance where Mexican courts, apparently, have something to teach Europe's high court.  In 2009 a thesis published by a Mexican federal high court stated that the drafters of the Hague Convention had the best interests of children firmly in mind when drafting the Convention, and that it is precisely in the proper adherence and application of the Convention that such interests are secured (the Mexican Supreme Court affirmed the underlying decision and, of course, the mother and child promptly disappeared and the order remains unenforced.)  

The very CRC that is claimed to be colliding with the Hague Convention exhorts State parties to combat the illicit transfer of children in two separate articles and delineates a series of rights that are routinely violated in even the most benign child abductions (both parents, nationality, language, name, etc.)  This decision, by refusing to acknowledge proper jurisdiction, has created two conflicting and geographically limited forums for determining custody and placed a massive roadblock between the child's parents ever coming to anything remotely resembling consensus or cooperation.

One of the keystones and foundations of modern international law, in particular in regards to the protection of children, has been the increasing emphasis on international cooperation.  This decision collectively gives the middle-finger to other countries, both inside and outside of Europe.  Decisions like this threaten to turn back 50 years of refinement in international family law to return to the very failures of the Hague Convention of 1961 ("concerning the powers of authorities and the law applicable in respect of the protection of minors") that a half century of legal scholarship has worked to address.

The access provisions of the Hague Convention are widely considered a nullity.  I'm not sure why you're singling out the US for violations of Article 21 of the Abduction Convention when no country in Europe, or anywhere else, with the possible exception of the UK (i'm not sure), has uniform or effective procedures for enforcing it -- especially when the US was not a party to this case.  Israel has consistently shown themselves to be "up to the job."

KarlHindle:
I singled out art21 and US non-compliance because most of the readers here will be American - I do believe one of the first issues to be confronted in improving our lot is realizing US non-compliance and correcting it - that is in everyone's interests.

That said, you are right that art 21 is widely considered a nullity but not universally - I believe the problem is rooted in the collision of the HC with domestic legal systems (which is sure going to make the Japanese situation of very real interest, and incidentally makes US non-compliance viz art.21 eminently topical).

I do NOT agree with the ECHR decision - on that we are of the same mind.  This decision is implicitly criticizing the HC's performance - if the HC cannot be relied upon to be prompt it cannot be effective and the human rights legislation will prevail, leaving the HC superfluous.

The key is to make the HC effective and this will mean significant changes to the treaty and to how member states implement it.

Martin:
This ruling clearly puts the clock back and rewards 'bad behaviour'. It is unfortunate that it might now be referred to by abducting parents in juristictions like Brazil where disappearing with a child, appealing endlessly, dragging matters out for ever and then presenting the court with a fait acompli is already the modus operandi .

However (and this might seem a bit random, but I've just got up), could Article 8 of the ECHR not be used by European parents to force judicial reviews of their respective governments' (central authorities, ombudsmen etc) lack of vigour and resolve in pursuing their cases with other juristictions?

SageDad:
It seems that on the basis of this ECHR decision an appeal was heard in the UK appeals court.  Not many details but it would seem that both reunite and the UK appeals court are distancing themselves from the ECHR's decision.

reunite intervenes in an appeal case in the Court of Appeal.

reunite recently intervened in an appeal case in the Court of Appeal which raised a significant issue of public importance.

The Court of Appeal was being asked to consider the impact of recent decisions of the European Court of Human Rights and whether these decisions had the effect of “lowering the bar” in cases involving grave risk of harm to the abducted child if a return is ordered (defence under Article 13 (b)).

reunite was given leave to intervene in the appeal and our legal representatives, Liz Dronfield of Bindman Solicitors, with counsel Richard Harrison of 1 King´s Bench Walk, successfully argued on reunite´s behalf that lowering the threshold would undermine the policy and objectives of the Hague Convention, which include the deterrence of child abduction and the prompt return of an abducted child to the country of his or her habitual residence, and would also be contrary to the interests of children generally.

At the conclusion of the hearing, the appeal was dismissed.

We extend our thanks to Bindman Solicitors and 1 King´s Bench Walk for representing reunite on a pro bono basis.

SageDad:
European Court of Human Rights continues to undermine Hague Convention on International Child Abduction...

http://www.internationalfamilylawfirm.com/2012/01/hague-abduction-convention-under-threat.html

Hague Abduction Convention under Threat from the European Court of Human Rights
Friday, January 20, 2012

The European Court of Human Rights (the “ECHR”) continues to attack the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), including a decision issued in December 2011.

In June 2010 in Neulinger & Shuruk v. Switzerland the ECHR ruled that the European Convention on Human Rights requires that courts may not return an abducted child to its habitual residence, even when the child’s return is mandated by the Hague Convention, unless it is first established that it is in the best interests of both the child and the child’s family to do so.

The ECHR thereby overruled thirty years of international case law, discounted the fundamental purposes of the Hague Convention of deterring international child abduction and of not rewarding international child abduction, and ensured that any Hague case that follows its precepts will be lengthy and expensive as well as often unfair to the left-behind parent who must now defend what could be almost a custody case on the taking parent’s home turf.

Notwithstanding extensive criticism of its decision the ECHR has followed the Neulinger case in more recent cases.
In Šneersone and Kampanella v. Italy (ECHR Application no. 14737/09) the ECHR applied Neulinger to override an Italian return order that had been issued after an admitted international child abduction from Italy to Latvia.

In April 2006 the child’s unmarried mother unilaterally took the parties’ son from their habitual residence in Rome, Italy to her native Latvia where she retained him. She claimed that she did so because the father was not paying child support and she could not afford to remain in Italy.

The ECHR criticized the Italian courts’ failure to consider: (a) the risk that the child’s separation from his mother might leave him with neurotic problems or an illness, (b) the father’s failure to visit his son in Latvia since 2006 or (c) whether the father’s home was suitable for a young child.

The ECHR, citing Neulinger, stated that it “must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin.”

The Court’s decision is astonishing for its failure to criticize the mother’s conduct in abducting the child in the first place and for its failure to address the fact that the Article 13(b) exception should not be invoked when the abducting parent is the one who creates the risk by refusing to return with the child. The ECHR decision endorses international parental child kidnapping and constitutes an extremely dangerous precedent.

Equally disturbing is the case of X v. Latvia (ECHR Application 27853/09) decided on December 13, 2011.
Here the child was taken from her habitual residence in Australia to Latvia by the Latvian mother. The father in Australia commenced a Hague proceeding promptly and the Latvian court, after a hearing, promptly issued a return order. On appeal the mother asserted that the child would suffer psychologically if she were returned to Australia without her mother and supported this assertion with a psychologist’s report and she claimed that she did not have the financial resources to return there. The appeal failed in January 2009.

Almost three years later the ECHR ruled that the Latvian return order violated Article 8 of the European Convention because the Court disregarded the psychologist’s report and did not sufficiently consider “what would happen as regards the child’s material well-being if returned to Australia.”

For a full discussion of these issues see my just-published article in the IAML Law Journal, TheHague Abduction Convention: A Critique of the Neulinger Case.

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