REVIEW OF THE EUROPEAN COURT OF HUMAN RIGHTS DECISIONS IN PARENTAL CHILD ABDUCTION CASES ACCORDING TO THE HAGUE CONVENTION OF 1980

CASE LAW EXAMPLES AND ANALYSIS OF ECHR DECISIONS IN HAGUE CONVENTION PARENTAL ABDUCTION CASES

Below are important and legal precedent-setting decisions rendered by the European Court of Human Rights (ECHR) in parental abduction cases under the Hague Convention.

• Karrer – Romania Case

A case under the Hague Convention concerning the return of a child to Austria was heard in Romanian courts. However, the ECHR found that Romanian courts did not adequately examine the child’s best interests and did not evaluate the international abduction case within the framework of the Hague Convention. Due to the local court’s passivity in examining the superior interests of the child, the ECHR concluded that there was a violation of Article 8.

• Tapia Gascae v D. – Spain Decision

The applicant alleged that local authorities did not exert sufficient effort to prevent the removal of her daughter from the jurisdiction of Spain by the father and further claimed that they were unable to secure the child’s return. However, the Court determined that these claims were unfounded and concluded that Article 8 was not violated. In this decision, the ECHR assessed whether local authorities were negligent in the parental abduction of the child.

• Ignaccolo-Zenide – Romania; Karadžić – Croatia Cases

In these parental child abduction cases, inadequate measures taken by authorities regarding the enforcement of court decisions for the return of the child to the mother resulted in a violation judgment under Article 8. The ECHR emphasized in these judgments that the child’s right to establish a relationship with both parents is a right protected under Article 8 of the European Convention on Human Rights (ECHR) and pointed out the obligation of contracting states to ensure the effective exercise of this right.

Moreover, the ECHR interpreted these obligations in light of the provisions of the Hague Convention, thereby making a significant contribution to the effectiveness of the Convention. These decisions are also crucial in emphasizing the importance of competent authorities acting swiftly in an international abduction return case under the Hague Convention.

• Stochlak – Poland; P.P. – Poland; Bajrami – Albania; Bianchi – Switzerland; H.N. – Poland; Monory – Romania and Hungary; and Maire – Portugal Cases

In these cases, the European Court of Human Rights (ECHR) found that authorities’ measures regarding the enforcement of court decisions for the return of the child to the father after the mother had taken the child abroad were insufficient, leading to a violation. The ECHR emphasized the importance of local authorities and official bodies taking an active role in enforcing the decisions of local courts about parental abduction.

• Leschiutta and Fraccaro – Belgium Decision

In this parental child abduction case, the ECHR concluded that competent authorities did not make fast, sufficient, and effective efforts for the return of the children to their fathers due to the mother’s abduction of the children abroad, and that they fell short in effectively applying the provisions of the Hague Convention.

• Karoussiotis – Portugal and Dore – Portugal Cases

The ECHR issued a violation judgment due to the incorrect approach and negligence of Portuguese authorities in the procedures initiated for the return of the shared child after the child was abducted abroad. In these cases, the ECHR emphasized the correct and complete execution of the procedure for the return of the child in accordance with the provisions of the Hague Convention about parental abduction.

• Carlson – Switzerland Case

The ECHR determined that the failure to promptly facilitate the return of the child to the habitual residence with the father amounted to a violation of Article 8. The ECHR highlighted in this decision that even if a positive decision is made regarding the request for the return of the child, the process should be managed quickly and effectively.

• Balbontin – United Kingdom Decision

The court, upon examining an parental abduction application made by a father under the Hague Convention, concluded that there was no violation of Article 14 in connection with Article 8 of the ECHR. The court’s findings in this case are important in emphasizing that the Hague Convention’s regulations on child abduction do not grant a fundamental regulatory authority regarding the right to protection. Additionally, the approach of the ECHR to the institution of family and the discretion granted to parents in the right to protection can be regulated differently in different legal systems, as observed in this decision.

• Serghides – Poland Decision

The applicant’s claim regarding the denial of her request for the return of her daughter to her after the child was taken to Poland as a result of the mother’s parental abduction was not accepted by the Court. It was observed that the court relied on the fundamental criteria related to the right to a fair trial while making this assessment. The significance highlighted in this decision is that if the prolonged trial process is based on justifiable reasons, the right to a fair trial within a reasonable time cannot be considered violated.

• Šneersone and Kampanella – Italy Case

This international abduction case addresses a situation concerning the decision of Italian courts regarding the return of a young child living with her mother in Latvia to her father in Italy. The claim that the decision of Italian courts lacked sufficient justification and was made without considering the possible psychological trauma of the abrupt and irreversible severance of close relationships between the child and her mother was not upheld, and therefore, no violation judgment was issued in the case. This situation demonstrates that disputes under the Hague Convention can be examined under Article 8 of the ECHR not only in cases where the return request is denied but also when a return order is granted.

• Macready – Czech Republic Decision

Following the illegal removal of the child to the Czech Republic by the mother, the prolonged proceedings regarding the applicant’s request for parental child abduction and the father’s inability to exercise visitation rights led to a finding of a violation of Article 8. This decision demonstrates that the ECHR, at times, evaluates complaints about the right to a fair trial within a reasonable time under Article 8 of the ECHR, considering the swift return procedure of the Hague Convention.

• Shaw – Hungary Case

Despite joint custody over the child, the ECHR found that Hungarian authorities failed to ensure the return of the child from France to Paris, where the father resided, in a situation where joint custody existed. As a result, the father became unable to see his child. Additionally, it was determined that competent authorities took no steps to implement the return decision, and during this international abduction period, the applicant was unable to see her daughter for three and a half years, leading to a finding of a violation of Article 8.

• M.R. and L.R. – Estonia Case

The case involves a daughter of a mother and father seeking return to Italy under the provisions of the Hague Convention on parental abduction. The mother and father did not return from Estonia to Italy after traveling for a visit. While the case was ongoing in Strasbourg, the ECHR requested that the child not be returned by the Estonian government, and due to the urgency of the situation, the application was examined in less than three months. The application was dismissed on the grounds that it lacked a clear basis.

According to the ECHR, the Estonian authorities, who rejected the claim that the mother could not return to Italy, did not exceed the limits of their discretion in that parental child abduction case. Furthermore, there was no finding that the decision to return the child to Italy was arbitrary or that competent authorities did not strike a fair balance between relevant interests. The ECHR’s examination in this decision focused on whether the discretion of the local court exceeded its limits.

• K. – Belgium Case

In this case concerning the decision to return a child to the United States after being taken to Belgium by the mother without the father’s permission or approval from U.S. courts, the ECHR concluded that the appellate court, which decided on the child’s return to the U.S., did not adequately assess the potential risks of the child’s return to the father and also did not take into account that the child had become accustomed to life in Belgium during the elapsed time. The Court thus determined a violation of Article 8.

The ECHR emphasized in this decision the importance of determining whether the child has successfully adapted to their new life in cases of parental abduction and highlighted the need for a detailed examination by the local court on this matter.

• Sophia Guðrún Hansen – Turkey Decision

The decision rendered by the ECHR in this case is based on the inadequacy of measures taken by authorities regarding the enforcement of court decisions related to the mother’s visitation rights. The ECHR did not agree with the government’s claims that Turkish authorities reasonably did what was expected of them to fulfill the applicant’s right to visit her child and concluded a violation in the parental child abduction case.

• Övüş – Turkey Decision

The ECHR decision pertains to visitation rights, and in this case, the Court found that due to the inadequacy of measures taken by Turkish authorities, it was not possible for the applicant to see her children, leading to a violation of Article 8. The ECHR requires that measures taken by local authorities must be effective and sufficient.

• Eskinazi and Chelouche – Turkey Decision

In this application, a Turkish mother of French origin and her daughter brought the decision of Turkish authorities to return the child to Israel to the ECHR. The application was found inadmissible on the grounds of lacking a clear basis, as the mother, with the father’s consent, had brought the child to Turkey for a vacation and did not return to Israel.

The ECHR concluded that the decision to return the child to Israel, which was deemed unjustly abducted under the Hague Convention, cannot be interpreted as a violation of the authorities’ obligations under Article 8, and that Turkish authorities had valid grounds for rejecting the request.

• Ancel – Turkey Case

The applicant’s claim, based on the non-execution of the decision granting her custody of her daughter who had been taken by her father, was not deemed valid by the Court.

• Küçük – Turkey Decision

This decision is one of the most significant rulings against Turkey regarding how States determine positive obligations under Article 8 for the protection of family life within the framework of the Hague Convention’s parental abduction provisions.

The case is based on the allegation that Turkish and Swiss authorities failed to take the necessary measures for the child, who was illegally taken to Switzerland by her mother, to promptly return to Turkey in accordance with court decisions.

According to the Court, the continued cohabitation of the applicant, to whom custody was granted, and her son constitutes a fundamental element of family life within the meaning of the first paragraph of Article 8 of the ECHR, which also applies in the present case.

Article 8 of the ECHR not only encompasses the right to request measures facilitating the reunification of a parent with their child but also the obligation of national authorities to take such measures. The decisive point in this regard is whether the national authorities have taken all reasonable measures expected of them to facilitate the enforcement of custody, visitation, or cohabitation rights granted to the parent by legislation or court decisions.

However, the Court stated that the obligation of national authorities in this regard is not absolute and emphasized that the nature and scope of measures depend on the circumstances of each case. According to the Court, the positive obligations imposed by Article 8 of the ECHR in this area should be interpreted in the light of the 1980 Hague Convention.

In accordance with the Hague Convention, central authorities must collaborate among themselves and encourage cooperation between the competent authorities of the relevant States to ensure the prompt return of children in the case of international abduction. The Court indicated that Turkey and Switzerland’s judicial, diplomatic, and police-level initiatives not proceeding as desired by the applicant and the relevant person not achieving the desired result in a shorter period do not imply that Turkish and Swiss authorities were passive.

Ultimately, the Court concluded that, despite the passage of a certain period between the abduction of the child and the return to Turkey, Turkish and Swiss authorities fulfilled all necessary procedures in accordance with their domestic laws and international treaties. Therefore, the Court ruled that there was no violation of Article 8 in this case.

• Neulinger – Switzerland Decision

This parental abduction case decision addresses situations where a mother with custodial rights unilaterally relocates her children. The Court’s findings in the Neulinger decision do not seem accurate, particularly in its perception and interpretation of the Hague Convention in parental child abduction cases. Swiss courts took into account the exception in Article 13/1-(b) of the Hague Convention, which allows refusal of return in cases where there is a serious risk that returning the child would expose them to physical or psychological harm or otherwise place them in an intolerable situation, and ruled that the mother could return with the child to Israel and initiate proceedings related to custodial rights there.

However, the ECHR concluded that there were sufficient indications that the child had integrated into the new country and that the difficulties the mother would face upon returning to Israel could be considered as an interference in family life if the return order were enforced.

The ECHR emphasized in this decision that the Convention cannot be interpreted in a vacuum, and it must be interpreted in harmony with the general principles of international law, especially considering the Hague Convention, in cases of parental abduction. According to the ECHR, the Hague Convention generally mandates the return unless there is a serious risk of exposing the child to physical or psychological harm or placing them in an intolerable situation.

Moreover, the ECHR stated in its decision that in cases of international abduction, the determination of the child’s best interests for personal development cannot be decided automatically or mechanically. The child’s high interests should be individually assessed in each specific case, taking into account factors such as the child’s age and maturity, the parents’ background and experiences, and the child’s environment.

In this case, the ECHR noted that the child, who is a Swiss citizen and came to Switzerland at the age of two, has continuously lived there, indicating that the child has established roots there. However, it was also mentioned in medical reports that uprooting the child from their usual environment and, especially, returning alone would likely have severe consequences for the child. Therefore, it could not be said that the return to Israel would be beneficial.

Additionally, the ECHR pointed out that the mother would be at risk of facing criminal sanctions upon her return, and the scope of these sanctions had not yet been determined. It could not be completely ruled out that a criminal case might be brought against her, which could possibly result in a prison sentence. In such a situation, the issue of who would take care of the child would arise. Considering the father’s past conduct and limited financial resources, there were doubts about his capacity to take care of the child. The father had never lived alone with the child and had not seen the child since their separation.

In conclusion, the ECHR, based on the above findings, determined that the return of the child to Israel would not be in the child’s best interests, and if the mother were compelled to return to Israel with her son, it would constitute a disproportionate interference in the right to respect for family life. Contrary to the assessment in the decision, Article 12 of the Hague Convention only provides for an exception for initiating return proceedings if a year has passed since the wrongful removal or retention of the child, and the child has become settled in their new environment.

As established in the present case, the proceedings under the Hague Convention in Switzerland were initiated within a year of the abduction. Nevertheless, the ECHR referred to the criterion of settlement for the child in Switzerland since the international abduction.

Furthermore, the ECHR’s decision indicates that, despite the explicit prohibition in the Hague Convention, the judicial authorities of the contracting states significantly expanded their jurisdiction under the Hague Convention by incorporating substantive elements regarding the essence of custodial rights.

• Raban – Romania Decision

In the Raban decision, a mother with joint custody traveled with her children to Romania for a visit. However, upon the mother’s decision not to return to Israel, the father filed an application under the Hague Convention on Parental Abduction. The mother claimed that the father had consented to the children’s trip to Romania and argued that the insecure environment in Israel posed a “serious risk” to the children. However, the first-instance court rejected the mother’s defense and ordered the return of the children to Israel. The appellate court overturned this decision.

The ECHR, based on the principle of margin of appreciation, ultimately found that the father had given consent for the children to relocate, and that the appellate court had sufficient evidence that the children had fully adapted and were well cared for by their mother.

Thus, the ECHR rejected the applicant’s claim of violation. It is noteworthy that in this case, the ECHR emphasized the correct interpretation of a case under the Hague Convention and pointed out that these considerations should be evaluated in a case regarding the essence of custodial rights, which could be pursued by the competent authorities only after the return procedure was completed and the habitual residence of the child had been established.

THE IMPORTANCE OF LEGAL PRECEDENT IN PARENTAL ABDUCTION CASES UNDER THE HAGUE CONVENTION

Parental abduction has various effects not only on children but also on parents. Especially, the child who is a victim of this act not only loses contact with their other parent but also remains deprived of the love, affection, and protection they need. Additionally, they are uprooted from their home environment and face a new culture, a different legal system, language, and often a distinct social structure. These differences make parental child abduction cases complex and challenging to resolve.

The Hague Convention has generally been highly successful in its implementation by the member states, and as of today, it has eighty-six state parties. In this context, the Convention not only contributes to the resolution of thousands of international abduction cases but also conveys a clear message that the act of abduction is detrimental to the child’s right to establish a relationship with both parents. Moreover, it assumes a deterrent role in many other cases with the effectiveness of measures for the child’s prompt return.

The Hague Convention has adopted specific concepts such as habitual residence, right of custody, and grave risk in parental abduction cases for a particular purpose and envisages the correct understanding and interpretation of these concepts.

The implementation of this convention in eighty-six member states will inevitably reflect the national and cultural characteristics of the relevant states, and the structure of different legal systems will undoubtedly influence the interpretation of the Convention. However, the effectiveness of the Hague Convention’s regulations on parental abduction largely depends on the consistency in the practices of the member states and the ability to establish cooperation between these states. In this regard, the Hague Convention acts as a treaty of judicial assistance.

In this context, instead of organizing courts considering the division of labor in return cases, as in the application in Germany under the Hague Convention, the appointment of a limited number of family courts authorized in specific regions for parental abduction cases under the Hague Convention is believed to ensure a faster and more effective return procedure.

The establishment of specially designated courts competent in this matter will not only allow courts and judges to gain experience in interpreting the Hague Convention and applying its provisions technically but also create a significant opportunity for the formation of a precedent under the Hague Convention in parental child abduction cases.

Furthermore, ensuring the accessibility of legislation and judicial practices in the legal systems of member states and maintaining effective communication will contribute positively to achieving consistency in practice and the effective functioning of the return procedure envisaged by the Convention.