Considering the close connection between the Hague Abduction Convention's subject matter and the right to family life in Article 8 of the European Convention on Human Rights ("ECHR"), the Hague Convention's arrival in the European Court of Human Rights ("ECtHR") was not a surprise.
In the Case of Neulinger and Shuruk, the ECtHR determined that a Swiss return order under the Hague Convention violated the right to family life under the ECHR.
The facts and procedure of the case were long and interesting and ultimately ended in an order from the Swiss courts to return the child to Israel (however, as an aside, it appears this order went unenforced).
The mother appealed to the ECtHR. The ECtHR cited the Convention on the Rights of the Child, the EU Charter of Fundamental Rights, the Cour de Cassation, and the Finnish Supreme Court. In dealing with whether the father had rights of custody initially, the ECtHR turned to the House of Lords, Australian national court decisions, and Swiss law. As an aside, the ECtHR wrongly cited that a ne exeat order does not confer rights of custody in the U.S. (Always fun to catch the ECtHR slipping!). Here though, the ECtHR determined that the required consent to leave Israel extended rights of custody to the father--thus the mother had wrongfully removed the child.
So, the only way to get out of returning the child in this case was to show that such a return would pose grave risk to the child, an argument which the Swiss court had rejected. Here, the mother argued that regardless of the Hague Convention, the return would violate the ECHR.
The ECtHR held at para. 138 that the best interests of the child must be examined in each individual case.
The court noted at para. 145 that a delay in the return--even after the return order--could further interfere with the right to family life.
Because of the hardships that would go against the interests of the mother and child, the ECtHR held that "there would be a violation of Article 8 of the Convention in respect of both applicants if the decision ordering the second applicant's return to Israel were to be enforced."
This case is surprising and important.
It is surprising because, per para. 145, the ECtHR has seemingly incentivized parents to stall and resist return orders in the hopes of establishing a case under the ECHR.
It is important because now, the Court of Justice of the European Union, EU Member States, and ECHR members will now almost certainly consider interference with the right to family life within the context of this case in all Hague Convention cases in the future.