Issue 53 May 2011 - Human Rights Stop Press: Neulinger & Shuruk v Switzerland, rights of the child
In the important case of Neulinger and Shuruk v Switzerland (app. no.41615/07) the Grand Chamber found that the return of a boy abducted by his mother would not be in his interest and would breach the Convention if the return order were enforced. This case has already started to influence courts in the United Kingdom. In ZH(Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 the Supreme Court referred to it as a demonstration of how art.8 fell to be construed in accordance with other important international human rights treaties, here the UN Convention on the Rights of the Child which in turn had the effect of importing into art.8 cases involving the removal of children or parents of children from one State to another, the need to consider what was in the best interests of the children.
The applicants, Isabelle Neulinger and her son Noam Shuruk, are Swiss nationals who are mother and son. In 1999 Ms Neulinger settled in Israel where she married the father of Noam who was born in Tel Aviv in 2003. Fearing that Noam would be taken by his father to an ultra-orthodox community, radical and known for its zealous proseytising - Ms Neulinger applied to the Tel Aviv Family Court, which in 2004 imposed a ban on Noam’s removal from the country until he attained his majority. She was awarded temporary custody and guardianship was to be exercised by both parents jointly. The father’s access rights were subsequently restricted on account of his threatening behaviour.
In February 2005 the parents divorced and Ms Neulinger secretly left Israel for Switzerland with her son. In a decision issued following an application by the child’s father, the Tel Aviv Family Court observed that Noam was habitually resident in Tel Aviv and that the parents had joint guardianship. The court held that the child’s removal from Israel without the father’s consent was wrongful within the meaning of art.3 of the Hague Convention on the Civil Aspects of International Child Abduction.
In Swiss proceedings the father’s application for his son’s return to Israel was dismissed by the Lausanne District Justice of the Peace on the ground that there was a grave risk that the child’s return to Israel would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The Vaud Cantonal Court dismissed the father’s appeal, confirming that this case was an exception to the principle of the child’s prompt return, in accordance with art.13, sub-para.(b), of the Hague Convention. The Swiss Federal Court allowed the father’s appeal, on the ground that the article in question had been wrongly applied, and ordered Ms Neulinger to return the child to Israel.
In February 2009 the applicants provided the Strasbourg Court with the certificate of a doctor who had examined Noam in 2005, and several times since then, indicating that, “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 the Lausanne District Court, at the request of Ms Neulinger, 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 applicants relied, in particular, on art.8, submitting that Noam’s return to Israel would constitute an unjustified interference with their right to respect for their family life.
The Grand Chamber found, like the Chamber, that Noam’s mother had removed him from Israel wrongfully and had thus committed an abduction for the purposes of the Hague Convention and the Swiss Federal Court’s order for the child’s return therefore had a sufficient legal basis.
The Grand Chamber shared the Chamber’s opinion that the order pursued the legitimate aim of protecting the rights and freedoms of Noam and his father, which the parties had not denied. In ascertaining whether a fair balance between the competing interests at stake - those of the child, of the parents, and of public order - had been struck, the child’s best interests had to be the primary consideration. This consisted of maintaining his ties with his family but also ensuring his development in a sound environment. The concept of the child’s best interests was inherent in the Hague Convention, which in principle required the prompt return of the abducted child unless there was a grave risk that the child’s return would expose him to physical or psychological harm. It was not the Court’s task to take the place of the competent authorities in examining whether Noam would be exposed to such harm if he returned to Israel, but to ascertain whether the domestic courts had respected art.8, particularly taking into account the child’s best interests. The Court noted in this connection that those courts had not been unanimous, first dismissing then allowing the father’s appeal. According to the experts’ reports there would be a risk for Noam in the event of his return to Israel, and in any event, in the view of the courts, he could return only with his mother so as to avoid significant trauma.
The Court was prepared to accept that in the present case the return order remained within the margin of appreciation afforded to national authorities in such matters. Nevertheless, if such a measure was enforced a certain time after the child’s abduction, that might undermine the pertinence of the Hague Convention, as it was essentially an instrument of a procedural nature and not a human rights treaty. Moreover, according to that instrument, a child’s return could not be ordered if he was settled in his new environment. Noam had Swiss nationality and had arrived in the country at the age of two. According to the applicants he had settled well there, attending a municipal secular day nursery and a State-approved private Jewish day nursery. He now went to school in Switzerland and spoke French. Even though he was at an age (seven years old) where he still had a certain capacity for adaptation - as the Chamber had pointed out - the fact of being uprooted again would probably have serious consequences for him.
The Court noted that restrictions had been imposed by the Israeli courts on the father’s right of access. Moreover, the applicants had submitted, without being contradicted by the Swiss Government, that Noam’s father had remarried and only a few months later had divorced his pregnant wife, who had subsequently brought proceedings against him for failure to pay maintenance. The Court doubted that such circumstances, assuming they were established, would be conducive to Noam’s well-being and development. In addition, whilst the Chamber had found no reason to doubt the credibility of the Israeli authorities’ assurances concerning the risk of criminal sanctions against Ms Neulinger, the Grand Chamber observed that according to a letter from the Israeli Central Authority, the possibility of her not being prosecuted would depend on a number of conditions such as respect for the father’s right of supervised access, pending any further decision. Criminal proceedings could not therefore be ruled out entirely and if Ms Neulinger were to be imprisoned that situation would not be in Noam’s best interests, his mother being the only person to whom he related. In the event of her imprisonment, it was doubtful whether the father would have the capacity to take care of the child, whom he had not seen since his departure, in view of his past conduct and limited financial resources. Ms Neulinger as a Swiss national was not therefore totally unjustified in refusing to return to Israel.
In the light of these considerations, particularly the more recent developments in the applicants’ situation, as indicated in the provisional measures order of 2009, the Court was not convinced that it would be in the child’s best interests for him to return to Israel. As to the mother, she would sustain a disproportionate interference with her right to respect for her family life if she were forced to return to Israel.