Neulinger & Shuruk v Switzerland ECHR

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CONSEILDE L’EUROPE

COUNCILOF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

UNOFFICIAL TRANSLATION CASE OF SHURUK & NEULINGER v. SWITZERLAND (Application No. 41615/07) STRASBOURG 8 January 2009 In the case of Neulinger Shuruk and v. Switzerland, The European Court of Human Rights (First Section), sitting as a Chamber composed of: Christos Rozakis, +Greece, President, Anatoly Kovler, - RUSSIA dissent Elisabeth Steiner - AUSTRIA Dean Spielmann, - LUXEMBOURG Sverre Erik Jebens, + NORWAY Giorgio Malinverni, + SWITZERLAND George Nicolaou, judges, + CYPRUS and Søren Nielsen, Section Registrar, Having deliberated in closed session on 4 December 2008, Makes the following judgment adopted on this date: PROCEDURE 1. At the root of the matter in an application (No. 41615/07) against the Swiss Confederation, are two nationals of that State, Ms. Isabelle M. Neulinger and son Noam Shuruk ( "claimants") petitioned the Court on 26 September 2007 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( "the Convention"). 2. The complainants are represented by M. Lestourneaud, lawyer at Thonon-Les-Bains (France). The Swiss Government ( "Government") is represented by its Deputy Agent, MA Scheidegger.

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3. The claimants allege in particular that by requiring the return of Noam Shuruk to Israel, the Federal Court has violated their right of respect for family life under Article 8 taken alone and in combination with articles 3 and 9 the Convention. They also allege a violation of Article 6 in that, by adopting an interpretation of them too narrow exceptions to the obligation of Switzerland to order the return of the complainant, the Federal Court did not take into account their best interests. 4. On 27 September 2007, the chairman of the Panel decided to instruct the Government, under Article 39 of the Rules of Court, not to return Noam Shuruk. 5. On 22 November 2007, the Court decided to communicate to the Government of the application as to the claim under article 8. As permitted by Article 29 § 3 of the Convention, it also decided that it would consider at the same time the admissibility and merits of the case. It also decided to treat it as a priority, under section 41 of the Regulation. 6. The Panel decided after consultation with the parties that there was no need to hold a hearing on the merits of the case (Article 59 § 3 in fine regulation), the parties have each submitted written comments on the observations of the other. 7. Comments were received from Mr. Shai Shuruk, the father of the complainant, admitted as a third party in accordance with Article 44 § 2 of the Rules of Court. FACTS 32. The father appealed the Federal Court of appeal in civil matters for the cancellation of the cantonal judgment to refuse the return of the child to Israel. He cited an incorrect application of article 13 first paragraph, letter b) of the Hague Convention primarily and Article 3 of the United Nations Convention on the Rights of the Child. 33. By order of 27 June 2007, the President of the competent court of the Federal Court granted the application to vacate by the father. 34. By a ruling of 16 August 2007, notified to the applicant's lawyer on 21 September 2007, the Federal Court to grant the application of the father. The relevant parts of that case are as follows:

"3. The objective of the IEEC is to ensure the prompt return of children wrongfully removed to or retained in a Contracting State (art. 1 letter. A IEEC). Is regarded as the illegal removal or retention of a child when he is in breach of custody attributed to a person, alone or jointly, by the law of the State in which the child was habitually resident immediately before the removal or non-return (art. 3 lit. a IEEC). The "custody" includes the law relating to the care of the child, and in particular to determine their place of residence (art. 5 let. CEIE a). In this case, it is

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not disputed that the removal of the child is illegal in Switzerland, as the father held jointly with the respondent parental authority (guardianship), which includes under Israeli law the right to determine the residence of the child. Moreover, since the return request was made within one year from the move, the respondent does not question that, in principle, pursuant to Art. 12 IEEC, the immediate return of the child should be ordered. The only issue was whether an exception can be made to return under Art. 13 para. 1 letter. b IEEC. 4. According to the appellant, by refusing to order the return of the child to Israel, the district judges have made a false application of art. 13 para. 1 letter. b IEEC. 4.1 Pursuant to art. 13 para. 1 letter. b IEEC, including, the Federal Court examines freely respect (art. 95 let. LTF b), the judicial authorities of the requested State is not bound to order the return of the child when the person 's opposing its return establishes that there is a serious risk that returning the child poses physical or psychological harm or otherwise place the child in an intolerable situation. The exceptions to return under Art. IEEC of 13 must be interpreted restrictively, the parent perpetrator of the abduction will derive no benefit from its unlawful conduct (5P.71/2003 complaint of 27 March 2003 considered. 2.2 in: FamPra.ch 2003 p. 718 ). Only serious risks must be taken into account, to the exclusion of reasons related to the educational capacity of the parents, since the IEEC is not intended to assign parental authority (ATF 131 III 334 consid. 5.3; 123 II 419 consid. 2b p. 425). An exception to return under Art. 13 para. 1 letter. b CEIE is therefore considered that if the intellectual, physical, moral or social development of the child is threatened with a serious danger (5P.65/2002 arrest of 11 April 2002 considered. 4c/bb in: FamPra. c. 2002 p. 620 and ref. cited). The burden of proof lies with the person who opposes the return of the child (see above considerations. 4b in: FamPra.ch 2002 p. 620 and ref. Cited). 4.2 The cantonal court observed that this is a very young child who is in the custody of the mother, which has always provided support. Meanwhile, the father lives in a religious community where it is fed and not out of his activity as professor of sports and drama that a monthly income of 300 fr. The child was withdrawn because of the climate of fear he did prevail in the home. For the same reason, the Israeli court ordered him to establish a separate home and prohibited him from approaching the apartment of the mother. Before the removal of the child to Switzerland, the father had only a limited right of access, that is two times two hours a week, under the supervision of social services in Israel. Concerning the conditions for a possible return of the child without the mother, according to the evidence provided by the Israeli Ministry of Justice on 12 March 2007, the father who is currently sharing an apartment with a roommate and still working in an institution of religious education would be willing to care for the child. Based on

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the incomplete and somewhat reassuring to this information and the forensic examination conducted by Dr. [...], psychiatrist, the cantonal court considered that a return to Israel involved a risk of danger to psychological and the child could be placed in an intolerable situation, whether or not with his mother. She added that, given the limited financial resources of the father, a return to Israel of the respondent would also undermine the economic security of the child whose mother should find a job to support themselves. In this case, the appellant does not criticize the assessment of the cantonal court that there is a serious risk that the child is exposed to a psychological danger if they returned without the respondent. However, it felt that the danger is non-existent if the mother accompanies the child to Israel, what can reasonably be expected of it. But on this latter case, one seeks in vain in the cantonal trial evidence of a serious risk of danger or intolerable situation for the child. The expert psychiatrist in particular did not comment on this issue, but explained that this danger could not be evaluated without knowing the conditions for a possible return. Regarding the use of violent behavior against the respondent, the cantonal ruling did not find that the child is threatened directly or indirectly, namely by being witness to this violence against the mother. It said that the father met the terms laid down for the right to visit that was going well. The social mandate to monitor the right to visit called the wonderful father-son relationship as it was established just before the abduction of the child by his mother. The latter does not claim that the appellant violated the court orders that prohibited him from approaching the apartment and the bother and / or harass her. As for considerations from the lack of income of the father and his links with the religious community "Loubavitch" in the state, they do not demonstrate the existence of a serious risk of danger to the child under Art. 13 para. 1 letter. b IEEC. If the information is useful in determining which of the parents has the best educational capacity to decide the award of custody - an issue which is decided by the judicial authorities of the place of habitual residence (art. 16 IEEC) -- they are however not relevant to decide the return of the child after illegal kidnapping (cf. considered. 4.1 above). Regarding the threat of the mother not to return to Israel, the cantonal ruling does not address any of the reasons for the refusal as it was for it to establish the existence of objective circumstances justifying this attitude . Judges cite cantonal expert psychiatrist who refers to "legal risks incurred in case of return to Israel, without any indication of whether the respondent risks a sentence of imprisonment as a consequence of the abduction. Assuming that this risk is proved, it could not wait for it until she comes to Israel with the child - which exclude therefore the return of [the child] in view of the danger which the major psychological expose separation from her mother. It did not comment on this in its reply to the Federal Court, in particular, it does not pretend to be threatened with a penalty of imprisonment or even criminal sanctions. It does not only in the event of return to Israel, it

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would be impossible or very difficult to integrate, in particular to find a new job. Accordingly, we do not see more evidence of an economic nature that would make untenable the return of the mother and, therefore, of the child. Thus, since the respondent have established the existence of objective reasons which justify a refusal to return to Israel, we must admit that we can reasonably expect it to return to the country of origin along with the child. In these circumstances, the lack of reassuring information provided by the Israeli Central Authority (cf. considered. 4.2 above) which was founded including the cantonal court to justify the exception to return the art. 13 para. 1 letter. b CEIE is not conclusive because they do not include information upon assumption of a return of the child without his mother. Accordingly, judges have violated cantonal art. 13 para. 1 letter. b CEIE considering it appropriate to make an exception to the return of the child's country of habitual residence. The appeal must therefore be accepted and judgment canceled, without the need to examine the allegation of violation of Art. 3 CRC. It will be for the respondent to ensure the return of the child [...] to Israel by the end of September 2007. (...) For these reasons, the Federal Court decision: 1. The appeal is granted and judgment is vacated. 2. It is ordered that the respondent ensure the return of the child [...] to Israel by the end of September 2007. (...) "

35. On 20 August 2007, the father of the child, through his counsel, before the Justice of the Peace District Lausanne, responsible for implementing the decision to return, made a request for the appointment of a ad hoc administrator for the child, to organize their departure. The Court decided on 27 September 2007 to inform the Government of provisional measures, on 1 October 2007, the father withdrew his complaint on 20 August 2007. II. THE RELEVANT INTERNATIONAL LAW 36. The relevant provisions of the Hague Convention on Civil Aspects of International Child Abduction of 25 October 1980, entered into force for Switzerland on 1 January 1984 are as follows:

"Preamble: The States signatory to this Convention, Deeply convinced that the interests of the child is of paramount importance in matters relating to their custody, Desiring to protect children at the international level, against the harmful effects of a shift or a non-return illegal and establish procedures to ensure the immediate return of the child in the State of habitual residence and to protect the rights, Have resolved to conclude a convention for that purpose and have agreed as follows:

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Article I: The present Convention are: a. to secure the prompt return of children wrongfully removed to or retained in any Contracting State; b. to effectively respected in other contracting States custody and of access under a state contractor. (...) Article 3: The removal or the retention of a child is considered illegal: a. it is in breach of rights of custody attributed to a person, institution or any other body, either alone or jointly, by the law of the State in which the child was habitually resident immediately before the removal or retention, and b. that this right was exercised effectively alone or jointly, at the time of removal or retention, or would have been if such events had occurred. The rights of custody mentioned in a) may arise by operation of law, judicial or administrative decision or an agreement is in effect under the law of this State. Article 4: The Convention applies to any child who was habitually resident in a Contracting State immediately before the infringement of rights of custody or visitation. The Convention ceases when the child reaches the age of 16. (...) Article 5: For the purposes of this Convention: a. the "custody" includes the law relating to the care of the child, and in particular to determine their place of residence; b. the "access" includes the right to take the child for a limited period in a place other than his habitual residence. Article 11: The judicial or administrative authorities of any Contracting State shall in proceedings for the return of the child. Where the judicial or administrative Authority has not acted within six weeks from the referral, the applicant or the Central Authority of the requested State, on its own initiative or at the request of the central Authority of the requesting State may request a statement of the reasons for the delay. (...) Article 12: When a child has been wrongfully removed or retained within the meaning of Article 3 and that a period of less than one year has elapsed from the removal or retention at the time of submission of the application before the judicial or administrative authorities of the Contracting State where the child, the authority to order the immediate return. (...)

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Article 13: Notwithstanding the preceding article, the judicial or administrative authorities of the requested State is not obliged to order the return of the child if the person, institution or organization that opposes its return establishes that: (...) b. there is a serious risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authorities may also refuse to order the return of the child if it finds that it is opposed to his return and has reached an age and maturity where it is appropriate to take into account this opinion. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account information provided by the Central authorities or other competent authorities of the State of habitual residence of the child in its social situation. Article 14: To determine the existence of a shift or a wrongful retention within the meaning of Article 3, judicial or administrative authorities of the requested State may take into account directly from the law and judicial decisions or administrative formally recognized or not in the State of habitual residence of the child without resorting to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise apply. "

37. On 21 December 2007, the Swiss Federal Parliament passed the "Federal Law on International Child Abduction and the Hague Conventions on the protection of children and adults", which aims to clarify and define certain concepts, particularly relating to the implementation of the Hague Convention of 1980. This law is, at present, not yet in force. The articles cited by the applicants are as follows:

"Article 5: Back and interests of the child Because of his return, the child is placed in an intolerable situation within the meaning of Article 13, paragraph 1, letter b, of the Hague Convention, particularly when the following conditions are met: a. Placing him at the parent is not in the interest of the child; b. the abducting parent, given the circumstances, is unable to take care of the child in the State in which the child was habitually resident at the time of the abduction or that we obviously can not required of him; v. placement to third parties is clearly not in the interest of the child. Article 6: Measures to protect The court seized of the request to return the child rule, if necessary, the personal relations of the child with her parents and ordered the necessary measures to ensure its protection. If the application was filed with the central authorities, the court may

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order the representation of the child, a guardianship or other protective measures, at the request of that authorities or of any party, regardless of even the application is still pending before it. "

38. As part of the adoption of the federal law on this, the Federal Council issued a guideline (Federal Gazette 2007, pp. 2433-2682) whose relevant in this case are as follows:

"6.4 Return and interests of the child (Article 5) To ensure implementation of the Hague Convention of 1980, better suited to the interests of the child, it is necessary that the law defines a set of cases in which the child's return can not be taken into account because it would put him in a situation clearly intolerable. The regulation provided for in Article 5 is not intended to replace the one contained in art. 13, § 1, letter b, of the Hague Convention of 1980. The term "including" means only a few cases are listed in which - while essential - do not rely on the clause provided in the agreement. The First letter. refers to a case in which the accommodation for the child to the parent who has requested the return does not clearly in the interest of the child if this is not the case, especially because the parent who has introduced the application is the only one exercising the right of custody or the only one who can be entrusted with such responsibility, there is normally no reason to fear that the child be placed in an intolerable situation upon his return, so there is no reason to refuse it. The situation is different when the eyes of the court, it appears clear that the party made the request is unable to take care of the child. The letter b regulates the cases in which the opportunity of returning the child can be assessed only in terms of its relationship with the parent perpetrator of the abduction. When the accommodation of the child to the parent who made the request for return is clearly not an issue, the problem of its return to the country of origin is so different as the person who Children abducted or wrongfully retained (this is often the mother) is able or not to return to that state. If it is unable to do so because, for example, it incurs a prison sentence which will lead to separation from the child or because it maintains Switzerland a very close family relationship (eg as a result of remarriage or because of the distress situation in which there is another family member living in Switzerland), he can go to balance mental and physical health of the child because his return it would be forced to live separately from both parents. Such a separation is tolerable only in exceptional cases and should be a last resort. Second case: one in which, given all the circumstances, it can not reasonably require the abducting parent to take care of the child in the State in which it was habitually resident immediately before kidnapping (art. 5, let. b). It is not enough for the parent who has abducted the

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child or deny unlawfully said he refuses to return to that state. If it is in a situation of distress as it can not reasonably be expected to return to its place of existence prior to wait with the child the court's final decision on the allocation custody. In this context, we are looking first to cases in which we can not assure the mother that she found a home safe and financially viable outside the home of his former partner. Then come into account cases in which the parent has requested the return of the child will not exercise the right to custody, nor will the judicial, while the abductor is obviously the person who deals primarily the care of the child. In such case, the child would not be renewed in the State of origin to expect that the final award of custody to the parent perpetrator of the abduction, before returning again to Switzerland with him. Such a return would ultimately refer the matter to the competent authorities of the former place of residence. This is a solution that is not permissible under the spirit and the aim of the Hague Convention because it is incompatible with the interests of the child. However the situation is undoubtedly for the court which was seized in Switzerland in the demand for return. If the situation can not be established so clear, the court must rule that the return to the State from which the parent perpetrator of the abduction is bearable and, consequently, it does not l 'child intolerable situation, which would justify a decision not to return under Article 13, paragraph 1, letter b, of the Hague Convention. The letter. c refers to foster care by third parties. Indeed, if the child's return would lead to a separation of the parent who has wrongfully removed or retained (because the return is impossible for it or could not reasonably be required of him), it could be executed in suitable conditions that if the child could be placed with third parties in their countries of origin. However, such a solution should be sought and, therefore, bring the Swiss court was competent to order the return of the child only if the foster care by third parties is not manifestly contrary to the interests of the child. The third condition can not be fulfilled unless the separation of the parent remained in Switzerland is bearable for the child - which may be the case when that parent has with a conflict - and if the foster family willing to host the Child provides any guarantee as to the protection and the normal development of the latter. In any case, such a solution should be considered only as a last resort. Note that even if the return is in the interests of the child and, in particular, to ensure that the conditions referred to in Article 13 of the Hague Convention are met, it is necessary that the authority which shall be aware of the situation prevailing in the country of origin and the legal regime that is in force. Also, the parties and, in particular, parents have the duty to participate in establishing the facts. Their hearing in person by the court (Article 9, para. 1 and 2) is therefore of great importance. The new provisions on the procedure and cooperation with the competent authorities in the country of origin also play a role. The court will determine whether and how it is possible to ensure the return

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of the child (art. 10, para. 2). If it fails or is unable to that part, it will not be able to weigh all the consequences that could have a return for the child. It will be the same if he fails to get the local authorities reliable assurances regarding the reception and protection of children, especially when it is reasonable to doubt the ability Parent applicant proper care of the child. In this regard, Article 10 is directly linked to the practical application of Article 5. "

39. The relevant provisions of the Convention on the Rights of the Child of 20 November 1989, entered into force for Switzerland on 26 March 1997 are as follows:

Preamble: (...) Convinced that the family, the basic unit of society and the natural environment for the growth and well-being of all its members, especially children, must receive the protection and assistance they need to play its full role in the community, Recognizing that the child, for the harmonious development of his personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, (...) Article 7: 1. The child shall be registered immediately after birth and it (...) the right to know their parents and be cared for by them (...). Article 9: 1. States Parties shall ensure that the child is not separated from their parents against their will (...). Article 14: 1. States Parties shall respect the child's right to freedom of thought, conscience and religion. 2. States Parties shall respect the right and duty of parents or, where appropriate, legal representatives of the child to guide him in the exercise of the right in a manner consistent with the evolving capacities (.. .). Article 18: 1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities in terms of raising the child and ensure its development. The responsibility of raising the child and ensure its development is primarily the responsibility of parents or, where appropriate, its legal representatives. They must be guided primarily by the best interests of the child (...). "

40. Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe on a European Charter on the Rights of the Child states among the first principles:

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"A. Children should no longer be considered the property of their parents, but be recognized as individuals with their rights and needs; (...). "

THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41. The complainants, who state that the competent Israeli court awarded custody to the applicant, allege a violation of the right to respect for family life under Article 8 taken alone and in combination with articles 3 and 9 of the Convention. Article 8 reads as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There can be no interference by a public authority in exercising this right only if the interference is provided by the law and is necessary in a democratic society is necessary for national security, to public safety or the economic welfare of the country, the defense of order and the prevention of crime, protection of health or morals or the protection of rights and freedoms of others. "

42. More specifically, the petitioner argue that, unlike the lower courts, the Federal Supreme Court disregarded the risk of serious psychological danger and the intolerable situation that he would face if returned to Israel with or without his mother. They criticize it for having rejected radical arguments yet supported by an expert report dated 16 April 2007 prepared by a child psychiatrist. They also argue that they are fully integrated in Lausanne, where the applicant has a paid occupation. A. The admissibility 43. For the reasons set out in paragraphs 54-69 below, the Government contends that the complaint under Article 8 should be declared inadmissible as being manifestly unfounded. 44. The Court does not share this view. It considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that it faces no other ground of inadmissibility. It should therefore be declared admissible. B. On the merits 1. The arguments of the parties a. Applicants

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45. The applicants first contend that the removal of Noam from Israel by his mother had been lawful under the Hague Convention. They believe that the Government is committing a manifest error of assessment indicating that the decision on 17 November 2004 by the Israeli court for the benefit of the mother granted a temporary custody order (temporary custody). 46. The applicants consider the lawful movement of the child to Switzerland, particularly for the following reasons: the behavior and threats of death of the father to the applicant would have warranted a special measure of protection in their favor, granted on January 12 2005; the father, a religious fanaticism that is displayed publicly, would be willing to unilaterally impose his infant son a lifestyle and a religious radical ultra-orthodox in disregard of the interests of the child and the disagreement expressed by the mother, he was the subject of an arrest warrant on 20 March 2005 for non-payment of alimony and his access was restricted and subject to the supervision of social services due to his irresponsible behavior, the criminal complaint filed against him in Israel in January 2005 would have been ineffective, the judges have closed on 30 November 2006; and the removal of the child would have been legal under Israeli law No. 5722 -1962 (Capacity and Guardianship Law), whose Article 25 provides in fine in case of disagreement between the parents, children aged under six years must stay with their mother, and whose Article 18 in specific expressly allows a parent to act alone in case of emergency, which would be the case especially when she has custody of the child. 47. In addition, applicants are convinced that the mother is exposed to a risk of criminal penalty if she returned to Israel, and that imposing such a sanction would undoubtedly cause suffering by the child with a major psychological trauma and a situation intolerable. They consider the consequences of a separation of the complainant and his mother, who would undoubtedly impose a custodial sentence, would be disastrous. They see a justification of their fears in the opinion of the expert psychiatrist, who referred to the "legal risks incurred in case of return to Israel, without specifying if the mother risks a sentence of imprisonment as a consequence of kidnapping (see the Federal Court, above, paragraph 34). 48. According to the applicants, the consequences of her incarceration in Israel would be devastating for the future of the mother and child. Stating that the father, they point to the unstable, remarried in November 2005 and was divorced from his new wife while she was pregnant, they say that, separated from his mother imprisoned, Noam would certainly not be entrusted to his father, taking into account the decisions previously made against it, unless they believe a turnaround just as harmful to the child. According to them, it is therefore likely that Noam would be placed in a home, which rejects the mother. The fears of the applicants are all stronger they feel they have received no reliable guarantee to the applicant to finally be free from criminal sanctions and a separation from the child which she is custody if she returned with him to Israel, nor the Israeli authorities, either in the letter produced by the Swiss Government to support its submission of 15 February 2008. In a letter dated 30 April 2007, the representative of the Office of Public Prosecutor of the State of Israel, referring directly to the Criminal Law of 1977, which

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stipulates prison sentences for such offenses, informed that the guidelines do not provide the prosecution of criminal proceedings, but only in very exceptional circumstances. The applicants consider, however, that even assuming that the public prosecutor decides not to institute criminal proceedings against the applicant, nothing would prevent the father to do so. 49. The complainants point out that the expert report of Dr. B. that there is a danger of an exceptionally serious harm in case of return of the child in Israel, and believe that both cantonal courts had better appreciated the danger than the Federal Court. They note further that the father has not asked for expert opinion from the judges he was in front of. It would therefore not be in the best interests of Noam to return to Israel, where he could not get out before his majority. In this regard, the petitioners stress that both are of Swiss nationality. 50. The applicants also believe that the position expressed by the Federal Court and the Government in this case does not reflect what the Federal Council and Parliament have expressed on the occasion of the adoption of the federal law on international abduction children and the Hague Conventions on the protection of children and adults of 21 December 2007. The petitioners emphasize that the law places the interests of the child at the heart of the debate (Article 5) and needs the protection and representation of the Child (Article 6). They consider it appropriate and relevant to this case to recall a few paragraphs of the guidelines of the Federal Council on the Federal Decree of 21 December 2007, which relate more specifically to the return of an abducted child: according to the Federal Council, "where the Hosting the child to the parent who made the request for return is clearly not an issue, the problem of its return to the country of origin is so different as the person who removed the child or wrongfully retained (...) is able or not to return to that state. If it is unable to do so because, for example, it incurs a prison sentence which will lead to separation from the child, (...) there can range from psychological and physical health of the child because his return would be forced to live separately from both parents. Such a separation is tolerable only in exceptional cases and should be a last resort (...). The court will determine whether and how it is possible to ensure the return of the child (...). If it fails or is unable to that part, it will not be able to weigh all the consequences that could have a return for the child. It will be the same if he fails to get the local authorities reliable assurances regarding the reception and protection of children, especially when it is reasonable to doubt the ability Parent applicant proper care of the child. "(See the guidelines of the Federal Council, paragraph 38 above). 51. The complainants then observe that the ruling of the Federal Tribunal of 16 August 2007 did not include any method of execution, which the Government does not dispute. According to them, the court should not have said that one could "reasonably expect" the mother to return to Israel with her child, despite the risks incurred by her and Noam, without looking into the adverse consequences that such a return could have on the child. They argue that it is up to the state authorities required to settle the terms of the possible return of the child, not after he decides to return, but before, because if no action is taken by the judge ordering the return of the child, there is no

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indication that this unarranged return does not expose them to dangerous situations involving mental harm or do not put them in an intolerable situation within the meaning of article 13 paragraph one, b ) of the Hague Convention. 52. Lastly, the possibility for parents to determine by mutual agreement the religious education of the child, the applicants are convinced that such a scenario is already excluded by virtue of the radical position adopted by the father, expressed especially in his writings to the Court that the Government can not, according to them, ignore them. They emphasize in this respect that the person joined the movement Jewish ultra-Orthodox "Loubavitch", which they describe as a mystical and ascetic section of traditional Judaism whose members belong to Hasidic Judaism and intense practice proselytism [recruiting others to convert]. According to the complainants, the father admits having tried to impose on his wife and child radical living under which, for example, women must cover their hair, and boys should be sent as early as three years to religious schools called "Heder" and it could effectively deny that his sudden change of behavior and its radical religious requirements have created between the spouses a major conflict that led to their divorce and he has serious problems with the law of his country, including an arrest warrant for non-payment of alimony. Given the above, the applicant considers it her duty to shield her child from this environment, which it considers fanatic. She stressed that no judicial guarantee was in place before her departure or is in place in the event of her return, and that the Federal Court was not asked such question. She notes that it she herself is of the Jewish faith and that she does not cut her son from his roots. Thus she often since late 2006, sends him to a secular municipal childcare one day a week, and a private Jewish day care approved by the State where it is taught, in addition to the curriculum of the Canton of Vaud, the principles Basic Judaism. 53. For these reasons, the applicants consider that the return of Noam in Israel constitute an unwarranted interference in a democratic society in the exercise of their right to respect for family life as guaranteed by article 8. b. The Government 54. The Government disputes the arguments of the petitioners. To the extent that they seem to question the illegality of the removal of a child by his mother, it argues that it does not matter whether custody under Israeli law (custody) was granted to the mother temporarily or permanently, but it is necessary to determine who has custody of Noam under the Hague Convention and that in this concept in Israel it is the right of guardianship, which includes the right to determine the place of residence of the child, Noam, whose parents hold jointly. 55. For the Government, the dispute in this case focuses on whether there exists conditions under Article 13 b) of the Hague Convention, which provides an exception to the immediate return of the child . 56. In response to the argument of the applicants, who believe that the Federal Court did not sufficiently take into account the legal framework put in

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the guidelines of the Federal Council dated 28 February 2007, the Government notes that the bill passed on the basis of the guidelines dated 21 December 2007 and that the law was not yet in force. It believes that neither this nor the related guideline is relevant to the resolution of this dispute and that the ruling of the Federal Court is not in any way contradictory to the principles it developed, because if the states in its Article 5 b) that the child is placed in an intolerable situation if returned in particular where the abducting parent, given the circumstances, is unable to take care of the child in the State where the it was habitually resident at the time of the abduction or that we obviously can not require it, we must establish that these conditions are met, that nothing would be said in this case . In this regard, the Government refers to the text of the guideline that "it is not enough that the parent who has abducted the child or deny unlawfully said he refuses to return to [the State of Origin] . If it is in a situation of distress as it can not reasonably be expected to return to its place of living prior to wait with the child the court's final decision on the allocation of custody. In this context, [we think] the first case in which we can not assure the mother that she found a home safe and financially viable outside the home of his former partner. "(See the guidelines of the Federal Council, paragraph 38 above). 57. The Government said that in the case Maumousseau and Washington v. France, No. 39388/05, § 73 et seq. ECHR 2007 ...), the Court stated that the purpose of the Hague Convention is to prevent the abducting parent to achieve legitimize the act by the passage of time, a situation that it has unilaterally created, exceptions to the return of the child should be interpreted strictly. In this case, national authorities, after conducting a thorough review of the case, had not identified any potential danger to the child. They had also stressed that, contrary to what she claimed, the mother could accompany her child to the state where she had her habitual residence in order to enforce her rights. The Court held that this was an essential element, the mother with free access to the territory of the State, as well as the ability to petition the competent courts. The procedure was not criticism of the rest under Article 8 of the Convention, the Court considered that there had been no violation of this article. 58. The Government notes that the case before making its decision of 29 August 2006, Justice of the Peace District Lausanne heard twice, on 18 July and 29 August 2006, accompanied by the applicant and her counsel that the father of Noam, and that, in turn before the Panel ordered guardianship measures instructions, namely the establishment of an expert child psychiatrist the applicant and has requested the Israeli authorities through the Swiss central authority, what are the conditions under which a possible return by Noam can be had. 59. In addition, the Government submits that the applicant has not argued before, the internal reasons and basic opposition to his return to Israel. It is of the opinion that statements made by the complainant under the procedure that the risk that it alleges is not the real reason for her refusal to return to Israel, which is indeed a choice on her part, motivated by her desire to live in Switzerland, and it noted that it was only later, in its application to the Court of

16

25 September 2007, that the applicant has indicated that it will not return to Israel because of the intolerable situation that would have led precisely to why she left that country in June 2005. The Government also recalls that the family situation of the applicants was followed closely by social services in Tel Aviv and the family court in the region of Tel Aviv, which prohibited the father of Noam to approach the apartment of the applicant or the school where the child, or harassing the applicant in any manner whatsoever, including morally, anywhere, to make use of the apartment where the living applicant and to hold or carry a weapon (see the decision of the Guardianship of 22 May 2007, pp. 5 et seq.). It is not disputed that the father of Noam with these measures (see the protocol of the meeting of 29 August 2006 before Justice of the Peace, p. 2). In addition, the attitude of Israeli authorities demonstrate a genuine concern for the safety and well-being of applicants (see the letter of 10 January 2005 of two social workers, reflected in the decision of the guardianship, p. 4), and there was therefore no reason to fear they do not react adequately in case of return of the complainants in Israel if the father was trying to annoy. 60. The Government notes that the applicant had itself decided in 1999 to settle in Israel and, later, to build a family, she had a job with a multinational company, and that her son was in a nursery school during the day. The Government assumes that having lived six years in Israel, the applicant should have a network of knowledge, especially as the expertise of Dr. B. mentions that it had decided to settle in this country after having spent a vacation with her family, which seems to prove that there would be family. 61. In response to the concerns of the applicant that deal with possible problems with the Israeli courts, the Government observes that a letter of authority given to the Israeli authorities by the father of the child, although the Israeli criminal law allows the imposition of a custodial sentence for the abduction of children, the guidelines of the State provide that the Israeli police, having received such a case, transfer the case to the central authority under Israeli The Hague Convention, and it makes recommendations on the response to it. However, according to these guidelines, criminal proceedings should be initiated only in very exceptional cases. The central authority would have added that in this case it could give instructions to the Israeli police to close the criminal case if the applicant is willing to cooperate with the Israeli authorities and to respect the right of access granted to the father and if it does not disappear again with the child (see the letter of 30 April 2007 attached to the comments of Government). Given this information, the Government is of the opinion that the applicant is not likely to impose criminal sanctions and that, contrary to what she says, the risk of being imprisoned is not known. Thus, in light of assurances given by the Israeli authorities, there would be no reason to fear, in case of return of the complainants, that the mother is detained, and therefore, separated from her son, who is in detention contradiction with the attitude of Israeli authorities, who have on several occasions shown their understanding for her and her desire to protect the interests of Noam.

17

62. The applicant also stated that, as it should assume the financial burden of the child, she would have no incentive to give up her job in Switzerland, the Government stresses that it is currently in Lausanne for the same company that already employed her in Tel Aviv, and considers that this situation is likely to give it an advantage to quickly find a satisfactory job if she returns. It could also qualify for various state aid in the search for housing and to support herself if necessary. 63. Given all these circumstances, the applicants' arguments were not relevant for reasons that have prevented her from returning to Israel, the Government believes that it is correct that the Federal Supreme Court has interpreted Article 13 b) of the Hague Convention in the sense of a return of the child and his mother. 64. The Government also states that if the expert B. includes in its report that the return of Noam Israel with his mother would expose him to psychiatric danger the intensity of it could not be evaluated without knowing the terms of the possible return, especially those which are reserved for his mother and impact they could have on the child, it also believed that maintaining the status quo would represent a risk for mental harm to Noam's long-term growing up (p. 7 of the report). In view of the above regarding the possibility of a return of the applicant, the Government, cites Article 13, paragraph one, the Hague Convention ( "the person who opposes (...) its return establishes (...) ") imposes the burden of proof on the applicant, said that not only it did not establish the existence of a serious risk to the child if returned, but although additional measures of inquiry conducted by the Swiss authorities and other aspects of the case to exclude such a risk with a very high probability. 65. Regarding the possibility of a return of the child without the applicant, the Government states that the Panel was informed of the status of guardianship from the central authority on Israeli conditions for a return and that From the reply of the authorities dated 12 March 2007 (Annex 4 to the comments of the Government) that the father would be willing to care for the child and ensure to have an apartment for that purpose, that the child could attend a day-care facilities during the hours of work or study of the father and the family that it could provide some support. The Israeli authorities have also said that if the mother would refuse to return to Israel with the child when she has the opportunity, it would mean that it accepts that the father has custody. The Government considers that given the attitude of Israeli authorities in this case, there is no reason to fear that they would not take the necessary measures in such a case, to ensure it is for the needs of the child the best possible way. 66. The Government said that in his letter of 12 March 2007, the Israeli authorities drew the attention of the Swiss authorities on the Israeli law of 1991 for the prevention of domestic violence, which includes measures of protection in cases of allegations violence within the family (Annex 4 to the comments of Government). The attitude of Israeli authorities and measures taken before the departure of the applicant, which was not disputed that they were met by the father of the child, to show the government that is used in

18

effective the provisions of this law. 67. In addition, the Government said that the Israeli law of 1962 on the ability and parental custody, including the child's father gave an extract of Justice of the Peace with the request of 8 June 2006, provides that the Parental authority includes the duty and the right to address the needs of the minor, including his education and his studies, and that any disagreement over the religious upbringing of a child, the court assigning parental authority takes into account the best interests of the child. The applicant holding joint parental authority and custody of her son, there is no reason to fear that she can not exercise a decisive influence on the religious education of his son in case of return to Israel with him. 68. Regarding the argument that the ruling of the Federal Tribunal of 16 August 2007 did not include any method of execution, the Government argues first that the court ordered the return of the child on the assumption that we could reasonably expect the mother to accompany him, since it had not reported the existence of objective circumstances justifying her refusal to go to Israel, and secondly that there is no indication that a return under these circumstances would expose the child to physical or psychological harm or place him in an intolerable situation. Furthermore, the Government believes that the return is because the applicant, is responsible for the situation created by the kidnapping of her son. It states that if the complainant had expressed fears related to practical aspects of a return to Israel to the competent authority for the implementation of the ruling of the Federal Court, the Justice of Peace and applicant could consider measures to remedy it. Finally, it explained that in light of measures adopted in this case by the Court, the modalities for the return of the child have not been discussed in detail by the Swiss authorities. 69. Given the foregoing, the Government believes that, given the young age of Noam, there is no reason to fear a return to Israel with his mother would expose him to serious consequences, and that the weighing of interests made by the Federal Court does not constitute a violation of Article 8 of the Convention. v. Third Party 70. The third party, ie the father of Noam, said that the main objective of the Hague Convention is to make available to the parties a mechanism to ensure the return to status quo prior to the abduction of children. The procedures provided by this court do not give the Court jurisdiction to determine what the best interests of the child: the matter would be left entirely to the discretion of national authorities, which would be better placed than the Court in this respect. 71. The third party also stresses that the right to respect for private and family life leaves room for exceptions, if they are prescribed by law and pursued a legitimate aim and necessary in a democratic society, and that States are required, under domestic law and international law, to punish the crime of

19

child abduction and to ensure that a parent can not benefit from its unlawful conduct. 2. The Court a. The principles developed by the Court in cases involving child abduction 72. The Court had the opportunity to design and develop the guiding principles that should guide in determining whether, faced with the kidnapping of a child, the authorities of a State Party to the Convention have complied with their obligations responsibility under Article 8 of the Convention (see Maumousseau and Washington v. France, No. 39388/05, § § 58-83, ECHR 2007 ..., Bianchi v. Switzerland, No. 7548/04, § § 76-85, 22 June 2006, Monory v. Romania and Hungary, No. 71099/01, § § 69-85, 5 April 2005, and Eskinazi Chelouche v. Turkey (dec.), No. 14600/05, ECHR 2005 XIII ( extracts), Karadžić v. Croatia, No. 35030/04, § § 51-54, 15 December 2005, Iglesias Gil and AUI v. Spain, No. 56673/00, § § 48-52, ECHR 2003 V, Sylvester v. Austria Our 36812/97 and 40104/98, § § 55-60, 24 April 2003, Paradis v. Germany, (December), No. 4783/03, 15 May 2003, Guichard v. France (dec.), No. 56838 / 00, ECHR 2003 X-Ignaccolo Zenide vs. Romania, No. 31679/96, § § 94-96, ECHR 2000 I and Tiemann v. France and Germany (December), our 47457/99 and 47458/99, ECHR 2000-IV). 73. The principles that emerge from the cases cited in the previous paragraph can be summarized as follows:

i. Article 8 of the Convention is mainly to protect the individual against arbitrary interference by public authority and it creates, in addition, positive obligations inherent in a "respect" effective family life. In both cases, it must have regard to the balance to be struck between the competing interests of the individual and society as a whole, as well, in both cases, the State has some discretion. ii. The Court has no task to substitute for national authorities to regulate matters of custody and visits, but to assess in terms of the Convention the decisions that the authorities have made in the exercise of their power of appreciation. In doing so, it must consider whether the supposed reasons justifying the measures actually taken in the enjoyment by the applicant of his right to respect for family life are relevant and sufficient under Article 8. iii. With particular regard to requiring the State to adopt positive measures, the Court has stated on many occasions that Article 8 means the right of a parent, that measures to meet her child to be taken and the obligation for national authorities to take them. iv. The key point is to know whether national authorities have taken all the measures that could be reasonably expected of them to facilitate the exercise of rights of custody, visitation and custody to one parent

20

recognized by the law applicable, or arising from judicial decisions. v. However, the obligation for national authorities to take measures to this effect is not absolute. The nature and extent of these depend on the circumstances of each case, but the understanding and cooperation of all concerned to remain an important factor. If the national authorities are trying to facilitate such cooperation, an obligation for them to resort to coercion in the matter can not be limited: they must take into account the interests and rights and freedoms of these persons, including best interests of the child and his rights under Article 8 of the Convention. In case of contact with parents are likely to threaten these interests or infringe on these rights, it is up to national authorities to ensure a fair balance between them. vi. The Convention should not be interpreted in isolation but should, under Article 31 § 3 c) of the Vienna Convention on the Law of Treaties (1969), to take into account any relevant rules of international law applicable to the contracting party. vii. The obligations under article 8 of the Convention imposes on States in a meeting of parent to child must therefore be interpreted in the light of the Convention on the Rights of the Child of 20 November 1989 and the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. viii. The purpose of the Convention is to protect rights not theoretical or illusory, but practical and effective (Artico v. Italy, 13 May 1980, Series A No. 37, § 33). In this sense, a respect for family life requires that future relations between parent and child are resolved on the basis of all relevant factors, not just the passage of time. ix. In this context, the adequacy of a measure to judge the speed of its implementation. The procedures relating to the return of an abducted child, including the implementation of decisions to their outcome, require urgent treatment, because the passage of time may have irreparable consequences for relations between children and parents who do not living with them.

b. The 'object and purpose "of the Hague Convention 74. The Court noted from the outset that since the adoption of the Convention on the Rights of the Child of 20 November 1989, "the best interests of the child" is at the heart of child protection, to the development of the child within the family, the family is "the basic unit of society and the natural environment for [its] growth and [his] welfare," in the words of the preamble to the Convention . As the Court has already ruled that consideration may take various forms (Maumousseau and Washington, § 66, see the text of the preamble to the treaty, paragraph 39 above).

21

75. With regard to custody, such as "the best interests of the child may have a dual purpose: first, to ensure development in a healthy environment, and a parent can not be allowed to take measures detrimental their health and development, while maintaining its ties with his family, except in cases where it was particularly unworthy because breaking the link back to cut the child from his roots (see Gnahoré v. France, No. 40031/98, ECHR 2000 IX, confirmed in Maumousseau and Washington, § 67). 76. The Court considers that the concept of "best interests" of the child is also paramount in proceedings under the Hague Convention. Among its components is the right of a minor, not to be separated from a parent. In this regard, it should be recalled Recommendation No. 874 (1979) of the Parliamentary Assembly of the Council of Europe, that "children should no longer be considered the property of their parents, but be recognized as individuals with their rights and needs "(see paragraph 40 above). The Court also emphasizes that in the preamble to the Hague Convention, the Contracting Parties expressed their conviction that "the interests of the child is of paramount importance in matters relating to their care" and stressed their willingness to "protect the child at the international level, against the harmful effects of a shift or a non-return illegal (...)" (see, for the full text of the preamble, paragraph 36 above) . 77. The Court fully subscribes to the philosophy underlying this Convention. Inspired by the desire to protect the child, seen as the first victim of the trauma caused by the removal or retention, it intends to fight against the proliferation of international child abduction. These considerations must also guide the Court in the interpretation of this international instrument. In light of vocabulary very strict and clear in Article I of the Hague Convention ( "ensure the immediate return" and "effectively enforce"), therefore, once the conditions of application this instrument together, to return soon to the status quo ante in order to avoid the consolidation of legal situations it originally illegal, and that issues related to custody and parental authority to the jurisdiction of the courts habitual residence of the child in accordance with Article 19 of the Convention (see in this regard and in particular Eskinazi and Chelouche, supra, confirmed by Maumousseau and Washington, § 69). 78. The Court finds that there are not self-enforcing the return of children once the Hague Convention is invoked, and may be illustrated by the recognition by this instrument, several exceptions to the requirement to return (see in particular articles 12, 13 and 20), based on considerations relating to the person of the child and its environment, which indicates it is for the court to adapt the actual circumstances of the case (Maumousseau and Washington, § 72). However, all too readily accept the arguments of the perpetrator of the parental removal would render the Hague Convention, its primary purpose. The exceptions mentioned above should be interpreted strictly. v. Application in the case of the above principles 79. Coming to the circumstances, the Court noted at the outset that, for the claimants, the possibility of continuing to live together is a fundamental

22

element which is the evidence of family life under Article 8 of the Convention, which is applicable (see among many others Maire v. Portugal, No. 48206/99, § 68, ECHR 2003 VII). 80. The petitioners argue that the removal of Noam from Israel by his mother had been unlawful under the Hague Convention and therefore that the dispute falls within the scope of this instrument. The Court recalls that under the Hague Convention, it is regarded as the illegal removal or retention of a child when he is in breach of custody attributed to a person, alone or jointly, by the law of the State in which the child was habitually resident immediately before the removal or retention (Article 3, first paragraph, letter a). The "custody" within the meaning of the Hague Convention includes the right relating to the care of the child, and in particular to determine their place of residence (Article 5 a). The Court considers that in this case, the removal of the child is illegal in Switzerland, since, in accordance with the decision of 27 June 2004, the father held jointly with the mother parental authority (guardianship) which in the Israeli legal framework, the right to determine the residence of the child. In addition, the displacement of Noam makes illusory in practice, access (Article 4, first paragraph) that had been granted to his father by the decision of 17 November 2004. Therefore, it is clearly illegal under the Hague Convention. 81. Furthermore, it is uncontroversial that the return of children ordered by the Federal Court is an "interference" by the two applicants for the purposes of paragraph 2 of Article 8 of the Convention. 82. In this case, the Court noted that the decision to return taken by the Federal Court was based on the provisions of the Hague Convention, in order to protect the rights and freedoms of Noam and his father, but recognized as legitimate the meaning of paragraph 2 of Article 8 of the Convention (see on this point Tiemann v. France and Germany (December), our 47457/99 and 47458/99, ECHR 2000 IV). 83. The Court will therefore seek to determine whether the interference in question was "necessary in a democratic society", as defined in paragraph 2 of Article 8 of the Convention, as interpreted in the light of the above-mentioned international instruments, the decisive point of whether the balance should exist between the competing interests at stake - those of the child, two parents between them and the public - has been spared within the discretion of States enjoy the matter. 84. The applicants complain about the grounds finally adopted by the Federal Court in its decision in response to the request of the father Noam (see, mutatis mutandis, Maumousseau and Washington, § § 58-81). The central question that the Court must decide is whether the conditions for an exception to the immediate return of the child under Article 13, first paragraph, letter b) of the Hague Convention are met in this case, or if the Federal Court has interpreted the clause too narrowly, as the complainants, who also complain of how the Tribunal ordered the return of the child in Israel, and especially since the application of 16 August 2007 did not include any method of

23

execution. These two elements will be examined by the Court one after another.

i. The reasons alleged against the immediate return of the child

85. The complainants contend that in the event of return to Israel, Noam

would run a serious risk of being exposed to physical or psychological harm

as defined in Article 13, first paragraph, letter b) of the Hague Convention. In

this regard, they cite in particular the behavior and threats of death of the

father to the applicant, religious fanaticism publicly displayed by it to impose

its will unilaterally in its infant son a lifestyle religious education and a radical

ultra-Orthodox in disregard of the interests of the child and the disagreement

expressed by the mother, the arrest warrant which has been on 20 March

2005 for non-payment of alimony , restrictions on his access, which could be

exercised only under the supervision of social services, because of its

irresponsible behavior, and the ineffectiveness of the criminal complaint filed

against him in Israel in January 2005 and classified November 30 2006.

86. Regarding allegations of death threats and religious fanaticism, the Court

recalled the various measures taken by the Israeli authorities and courts to

protect the applicants when they still resided in the country. On 20 June 2004,

the Family Court in the region of Tel Aviv, the applicant's request, made in

respect of Noam banned from leaving the country until the majority of the

child. On 10 January 2005, the Israeli social services have ordered the

parents to live separately, in the interest of the child. On 12 January 2005, the

judge of the Family Court in the region of Tel Aviv has prohibited the father

from entering the school where Noam was registered or in the apartment of

the applicant, or harassing it in any way whatsoever, and to carry or possess

a weapon. Restrictions were also placed on the right to visit the person who

was not allowed to see his son under the supervision of social services, in a

contact center of Tel Aviv. Finally, an arrest warrant was issued against him

on 20 March 2005 for non-payment of alimony. Furthermore, regarding the

alleged inefficiency of the criminal complaint against him, which was closed on

30 November 2006, the Court finds that this classification is due to the

departure of the applicant. Furthermore, it appears that the father of Noam

has complied with the measures imposed by the domestic authorities. In

short, given the efforts made by them, we can not admit that they were unable

or unwilling to protect complainants against any aggressive actions of fanatics

or the father. There is nothing to suggest it would be different after the return

of interest in Israel (see, in this sense, Eskinazi and Chelouche, supra).

24

87. The applicants also believe that the Federal Court did not sufficiently take

into account the legal framework put in the guidelines of the Federal Council

of 28 February 2007. They seem to infer from this message that it is virtually

out of the question to refer a child if the parent perpetrator of abduction can

not return to the country of origin because she incurs a prison sentence that

separates it from her child. She must go even if the parent is unable to obtain

from local authorities reliable assurances regarding the reception and

protection of the child. The Court observes that the bill for that guideline is not

yet in force. In any event, it agrees with the Government that the ruling by the

Federal Court on 16 August 2007 is not contrary to the guidelines or the bill.

88. The petitioners argue that, in the report of 16 April 2007, the expert B.

indicated that the child's return to Israel without his mother would expose him

to a major psychological danger. In this regard, the Court considers it

appropriate to consider whether the return to Israel is possible for the mother.

She recalled that she had itself decided in 1999 to settle in Israel and, later, to

build a family with the father of her child. She lived there six years, and must

therefore have developed a certain social network. Moreover, she had a job

with a multinational company, and it appears that it is currently working in the

same company in Lausanne. The applicant did not rely on other grounds

which have prevented her from living in Israel, the Court finds that it can

reasonably be expected to live in that country.

89. Moreover, the Court is convinced that in this case the child, born on 10

June 2003, is still in an age of perfect adaptability. In addition, it is clear from

the response of the Israeli authorities of 12 March 2007 only if the mother had

to decide to stay in Switzerland, the father would be willing to care for the child

and ensure availability of an apartment. To this end, the child could attend

day-care facilities during the hours of work and study of the father, and the

father's family could provide some support.

90. The complainants contend that the applicant is exposed to a risk of

criminal sanction if they returned to Israel. They consider that imprisonment is

not an excluded possibility and would have serious consequences for the

child, which would probably be placed in a home. In this regard, they believe

that the Israeli authorities have given no guarantee reliable such as to the

applicant without any penalty. The Court does not share this view. First, it

notes that the abduction of a minor is a criminal offense, punishable probably

in all member states of the Council of Europe (see, for Switzerland, Article 220

of the Criminal Code) . On the other hand, it saw no reason to doubt the

credibility of the assurances given by the Israeli authorities, particularly in

terms of the attitude they have shown towards the mother and child before

25

leaving to Switzerland.

91. Given the above, although it is aware that the return of the complainants

to Israel may be accompanied by a number of inconveniences, the Court finds

that they would largely be due to the unilateral decision by the applicant

herself. However, there is no doubt that it is in the best interests "of any child

to grow up in an environment allowing it to maintain regular contact with both

parents (see first paragraph of articles 7, 9 and 18 of the Convention on the

Rights of the Child, paragraph 39 above). In the Court's opinion, the

responsibility and duties of the applicant to her family reportedly ordered that

they seek to reach agreement with the father of the child, including his

education, his place of residence as well as custody and visitation.

92. Finally, according to the complainants, the religious fanaticism of the

father of Noam immediately exclude any participation by the mother in the

religious education of the child. It is the duty of the applicant to remove her

child from the middle of the movement fanatic Jewish ultra-Orthodox

"Loubavitch, and there is no guarantee legal action against the influences of

the child's father. The Court recognizes that the religious education of children

rests with parents (see, for example, Article 14, Section 1 of the Convention

on the doits of the child, paragraph 39 above). However, it pointed out that the

applicant has parental authority jointly with the father, according to an order of

the Family Court in the region of Tel Aviv on June 27, 2004. As the

Government, it considers that no evidence suggest sthat the applicant could

not exercise influence over the religious upbringing of her son or that the

Israeli authorities and courts could not prevent the father to send in a religious

school "Heder.

93. In these circumstances, the Court believes that, given the discretion of the

authorities in this regard, the decision to return was based on relevant and

sufficient grounds for the purposes of paragraph 2 of Article 8, read in the light

of Article 13, first paragraph, letter b) of the Hague Convention, and was

proportionate to the legitimate aim pursued.

ii. The conditions for implementing the measure of return

94. The applicants note that the ruling of the Federal Court dated 16 August

2007 did not include any form of execution of the return of claimants in Israel,

which the Government also does not. According to them, the court should not

have said that it could "reasonably expect" the mother to return to Israel with

26

her child without first checking the adverse consequences that such a return

could pose on the child.

95. The Court reiterated that the conditions for implementing the return of an

abducted child can not escape its control (see Maumousseau and

Washington, § § 84 and following, where the Court found no violation of

Article 8, arguing that the circumstances justified the intervention of the same

law enforcement). It also recalls the obligation of promptness in implementing

the return of an abducted child, which must be taken into account when

adopting measures to ensure the effectiveness of judicial decisions (ibid., §

84).

96. Regarding this case, the Court believes that the Federal Court has rightly

felt that we could reasonably expect the appellant to accompany him and

there was no indication that a return in these circumstances would expose the

child to physical or psychological harm or place him in an intolerable situation.

It also shares the Government's view that the organization and modalities of

the return of the complainant first incumbent on the applicant, perpetrator of

the abduction. Moreover, the Court does not regard as unfounded the

argument of the Government that the applicant could apply to the competent

authority for carrying out the ruling of the Federal Court, the Justice of Peace

Canton of Vaud, which could assist in preparing the return of the child. Finally,

the Court noted that the implementation of the return was suspended following

the application for interim measures on 27 September 2007. Therefore, one

can not speculate on a possible failure on the part of the respondent State on

measures accompanying the return of Noam Israel.

97. In these circumstances, the Court concludes that the conditions for

implementing the measure of return did not violate Article 8.

iii. Conclusion

98. Given the above, there has been no violation of Article 8 of the

Convention.

II. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 9 OF THE

CONVENTION

The admissibility

27

99. The complainants contend that the decision ordering the return of Noam

violates other provisions of the Convention.

100. First, the forced departure of the child without his mother would be

inhuman treatment prohibited by Article 3, since, as she herself

acknowledges, the father would immediately submit to authority and her child

the precepts of the religious ultra-Orthodox "Loubavitch. Essentially for the

same reasons, the complainants allege a violation of freedom of religion

guaranteed by Article 9 of the Convention.

101. The Court recalls that the purpose of the principle of exhaustion of

domestic remedies is to afford the Contracting States the opportunity to

prevent or redress violations alleged against them before they can be

submitted. Thus, the complaint that we hear the Court must first be raised, at

least in substance, form and time limits prescribed by law, before the

appropriate courts (Ankerl v. Switzerland, § 34). In this case, the Court must

find that the applicants have not raised the claims under articles 3 and 9,

essentially the same, before national courts. It follows that they must be

rejected for non-exhaustion of domestic remedies, pursuant to Article 35 § 1

and 4 of the Convention.

102. The complainants also allege a violation of Article 6. They believe that by

adopting an overly restrictive interpretation of exceptions to the obligation of

Switzerland to order the return of the complainant, the Federal Court did not

take into account the best interests of it.

103. The Court believes that this complaint is closely linked to that on Article 8

in its procedural aspect. In this regard, it reiterates the difference in the nature

of the interests protected by Article 6 § 1 and Article 8, respectively. Thus,

Article 6 gives a procedural safeguard, namely the "right to a court" to hear

the "rights and obligations of a civil nature" of an individual (Golder v. United

Kingdom, 21 February 1975, Series A no 18, § 36), while the procedural

requirement inherent in Article 8 not only covers the administrative and judicial

proceedings, but is consistent with the broader goal of ensuring the proper

respect, inter alia, life family (see, for example, B. v. United Kingdom, 8 July

1987, Series A No. 121-B, § § 63-65 and 68, and Bianchi, § 112). The

difference between the objective of the respective guarantees of Article 6 § 1

and 8 may, depending on the circumstances, justify the consideration of the

same set of facts in terms of one and the other articles ( See McMichael v.

United Kingdom, 24 February 1995, Series A No. 307 B, § 91; see, a

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contrario, Golder supra, § § 41-45, O. v. United Kingdom, 8 July 1987, Series

A no 120-A, § § 65-67, and Bianchi, § 113).

104. In this case, the Court finds that the complaint under Article 6 § 1 of the

Convention should be considered as one of the key points of the claim under

article 8 (see, in this sense, Karadzic , § 67, Sylvester, § § 73-77, and Bianchi,

§ 114). Therefore, it considers that there is no need to consider this claim

separately in terms of Article 6 of the Convention.

105. It follows that these claims should be rejected under Article 35 § § 3 and

4 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares unanimously the application admissible as to the claim under

article 8 of the Convention and inadmissible for the remainder;

2. Holds by four votes against three, there has been no violation of Article 8 of

the Convention;

Done in French, and notified in writing on 8 January 2009, pursuant to Article

77 § § 2 and 3 of the Regulation.

Soren Nielsen Christos Rozakis

Registrar President

At this point, it is attached, in accordance with Article 45 § 2 of the Convention

and 74 § 2 of the Regulation, the presentation of separate dissenting opinions

as follows:

- Decision by Mr. Kovler;

- Views of Ms. Steiner;

- Decision by Mr. Spielmann.

C.L.R.

S.n.

Dissenting opinion of Judge Kovler [Russia]

Did not agree with the conclusions of the majority and concurring with the

judges about Spielmann and Steiner, I would like to express the reasons why I

voted against the majority view.

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In matters as delicate as this, where it is above, all the rights of the child in a

family traditionally disunited are considered a priority (I would refer to the case

law cited in paragraph 72), the Court often focuses on the conditions (physical

and psychological) in which a child should live with each parent (see case of

Ismailova v. Russia, No. 37614/02, 29 November 2007).

In the case of young Noam, it is of paramount importance to note that from the

onset of marital difficulties, the custody and parental authority has been

granted by the Israeli authorities to the mother (see paragraphs 13 and 14).

Then, after the intervention of social services in Israel, the parents were

ordered to live separately in the interest of the child, then the judge of the

Family Court, by an order of 12 January 2005, prohibited the father to enter

the nursery school where the child was enrolled in the apartment and the

applicant, and carry or possess a weapon (sic). Finally, the various decisions

awarding custody of the child's mother were confirmed on 10 February 2005

by the divorce of spouses without changing the allocation of parental

authority, which resulting in the mother. There is no reason to doubt the

validity of all these decisions, which show that there is a real problem in the

relationship between father and son. Furthermore, we learn that the father did

not pay the payment of alimony to the applicant, an arrest warrant was issued

against him on 20 March 2005 (paragraph 18) . These elements, which are

arguments against the father, are compounded by the facts mentioned in

paragraphs 48 and 49.

In these circumstances, one can only wonder about the decision of the Family

Court to deny the applicant annulment of the court order prohibiting departure

from the territory of Israel to young Noam, who was thus now, in a sense, kept

hostage by his father.

It is unnecessary to go into the details of the legal battle that followed the

departure of the mother with her son in Switzerland, but I must say that I

understand the reasons for the decisions of the justice of Lausanne

(paragraph 28) and House of the Protection of the Vaud Cantonal Court

(paragraph 31), who hold the view that the return of the child with his father

would have exposed to dangerous psychological and even physical. However,

the decision of 16 August 2007 the Federal Court clearly seems to be too

formal and does not take account of the spirit of the Hague Convention,

particularly Article 13, which aims is the paramount interests of the child, the

interest of parents from then. Nothing prevents the father to come to

Switzerland to see his son or to participate in his education by means of

modern communication, until the child is mature and can decide for

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himself the situation. Ultimately, the recommendation 874 (1979) of the

Parliamentary Assembly of the Council of Europe is still valid: "Children

should not be regarded as the property of their parents, but be recognized as

individuals with their own needs ... ". I regret that the Federal Court and the

Court have taken decisions that are against this recommendation

DISSENTING OPINION OF JUDGE STEINER [Austria] I regret not being able to follow the majority in that case. Beyond the legal problems due to the fact that it falls within an international framework, the case Neulinger Shuruk and raises an ethical issue of the utmost importance: what should be the level of protection afforded to a person under the European Convention on Human Rights in relation to a third country, whose legal system does not necessarily guarantee that the Convention provides for any person under the jurisdiction of a State party to this instrument. I note from the outset that this case of a child, also with the Swiss citizen residing in Lausanne with his mother and threatened to "reference" in a third country, the country of residence his father, all in the frame and at the end of a contentious family law which blends private interests, including the confrontational nature is obvious, and international constraints. The main question that I would like to highlight, and which prompted decisive my opposition to the view adopted by the Panel (by a very slim margin), is the interest of the child, interest, according to our own jurisprudence in matters of family disputes under Article 8 of the Convention should prevail over any other consideration. Then I remember what can be, in my opinion, the interest of the mother deserves consideration and protection in terms of the Convention. In my opinion, as regards the fundamental question of taking into account the interests of the child, the judgment does not answer convincingly. Besides the fact that on the important matter, the Panel devotes one paragraph, and even more so, the judgment addresses the focus of the case, which is the religious context in which it is located, in a way could not be more brief. A malaise is evident in the way this issue has been addressed and resolved in the case. Considering that "no evidence does suggest that the applicant could not exercise influence over the religious upbringing of his son or that Israeli courts could not prevent the father of the post in a religious school 'Heder' "(paragraph 92), the Panel demonstrated a formality and a theoretical optimism that nothing in the record is likely to reinforce. Formality, because the majority of the court seems from a "procedural" reliance, in an abstract way, on a legal system whose principles of family law, based on a law Traditional religious rule that matters of personal status, sometimes significantly different from those we know in Europe.

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Theoretical optimism, because the majority seems to ignore that in this case, the litigation in the family law of the State, including matters concerning marriage, divorce, child support, guardianship and the adoption, are accused of religious courts in the case of the rabbinical courts. But when we know the evolution of the father that led him to be part of a religious ultra-Orthodox movement, one may have the most serious doubts on the real possibilities for the mother to 'influence choices dictated more by religion than by the interests of the child. If I understand the deeper meaning of the argument, she wants her son, while not divorced from its roots and receiving religious education for the purpose or in fact educated in compliance with principles of tolerance and secularism that are States Parties to the Convention. While it is true that, as provided in Article 2 of Protocol 1 to the Convention to respect the "religious and philosophical beliefs" of parents in raising children, but also that event of disagreement, the couple were placed on an equal footing, as well as required by Article 5 of Protocol No. 7, which stipulates that the spouses have equal rights and responsibilities between them, and in their relationships with their children to marriage, during marriage and upon dissolution. " However, for reasons I just mentioned, I am not sure that this will be the case if the child is returned, and the evidence is no proof either. In these conditions, inspired by a principle of precaution, which affect both the interest of the child than the mother, I find that the respondent State has exceeded its discretion. Indeed, no reason can be invoked to justify such serious impact on private and family life of both the child and the mother, so that this interference is not "necessary in a democratic society". DISSENTING OPINION OF JUDGE SPIELMANN I do not agree with the conclusions of the majority and I believe that a violation of Article 8 of the Convention occurred. 1. First, I consider that there was no wrongful removal and that, consequently, the Hague Convention on Civil Aspects of International Child Abduction of 25 October 1980, and in particular Article 3 does not apply. Let me stress in this regard the fact that the applicant had the right to custody of her son. Indeed, by order of 27 June 2004, Noam's custody was awarded to the mother of the child (paragraph 13 of the Complaint). On recommendations of a social worker, the award of custody to the applicant was confirmed by the court dated 17 November 2004 (paragraph 14 of the Complaint). Or "the right whose violation determines the existence of a removal or a non-return illegal under the Convention [in The Hague is the] custody." 2. The fact that parental authority should be exercised jointly with the father and, according to Israeli law, the right to determine the child's residence is one of the attributes of parental authority, in my opinion is wholly irrelevant . What matters is the fact that the mother, and she alone had the right to custody. It is for this reason that this case differs from Maumousseau and

32

Washington v. France (where the child had been assigned to the father) or Eskinazi and Chelouche v. Turkey (or parental authority and custody rights were exercised jointly). 3. The Hague Convention, which, I repeat, in my opinion is inapplicable in this case, states in Article 5 that the "custody" includes the law relating to the care of the child, and in particular to determine their place of residence. " The interpretation by the Federal Court, which has incorporated into its reasoning the concept of parental authority under Israeli law, leads to the absurd result of depriving the mother of one of the attributes of the right of custody, the ability to live with the child' in a place of residence as she considers the most appropriate and where it took up residence. This coexistence chosen place of residence is required to meet "effectively" to the duty of care in the best interests of the child. Plus, in this case the Israeli social services had ordered the parents to live separately in the interest of the child (paragraph 15 of the stop). 4. In light of the requirements of Article 8 of the Convention, the federal court decision that could "reasonably expect" the mother to return with her child in Israel is disproportionate. Moreover, in paragraphs 74 to 76 of the ruling, the Court recalls that "the best interests of the child" should govern any decision on the matter and that "children should no longer be considered the property of their parents, but be recognized as individuals with their rights and needs "(see Recommendation No. 874 (1979) of the Parliamentary Assembly of the Council of Europe). But the majority fails to apply these principles to the case. 5. Indeed, I would simply like to recall in this connection that the behavior displayed by the father led the Israeli social services to order the parents to live separately (paragraph 15 of the complaint and paragraph 3 of my opinion). The judge of the Family Court in the region of Tel Aviv father had forbidden to enter the nursery school or in the apartment of the applicant and to hold or carry a weapon (of paragraph 16 above). An arrest warrant was issued against him for failure to pay child support (paragraph 18 of the complaint). His access was restricted (paragraph 16 of the complaint). The mother had even obtained a court order banning of exit (paragraph 12 of the complaint), fearing that the father could start to integrate with Noam abroad a religious community. Regarding the enormous difficulties that the child would face in the event of his return to Israel, I therefore agree entirely with the comments made by Judge Kovler in his dissenting opinion. 6. Finally, I wish to add for completeness that if the Hague Convention applies for the purposes of discussion, the return is not consistent with the requirements of Article 13 of the Convention, since the child who lived with his mother for more than two years in Switzerland, would be placed in an "intolerable situation" under this provision. As the judge Kovler in his dissenting opinion, Justice of the Peace of Lausanne and the Chamber of guardianship of Vaud Cantonal Court had rightly felt that the return of the child with his father would have exposed to danger psychological and even physical (see also paragraphs 28 and 31 of the complaint).

33

7. The reasons advanced by the majority in paragraphs 88 to 93 of the complaint do not seem convincing enough to make me conclude that the proportionality of the decision to return. 8. These reasons do not convince me, because: - The return of the mother with her child is very difficult, since she is socially integrated in Switzerland, where she works in a society in Lausanne; - The child now lives in Switzerland for several years; - The fact that the father would be willing to care for the child if the mother had

to stay in Switzerland is an argument wholly irrelevant in the light of the

particularly painful history of the case (see paragraphs 11 to 19 of the

complaint and paragraph 5 of my opinion);

- The mother is at risk of criminal sanction if they returned to Israel and a

sentence of imprisonment is not excluded;

- In the light particularly painful history of the case (see paragraphs 11 to 19 of

the arrest and paragraph 5 of my opinion), any attempt by the applicant to

reach agreement with the father was, and remains, most likely doomed to

failure;

- Any attempt by the applicant to influence the religious upbringing of his son

would be, in all likelihood, doomed to failure.

9. Even if I have a lot of reluctance to follow the developments of the

dissenting opinion of my colleague Judge Steiner on "the focal point of the

case, which is the religious context in which it lies," I agree with her view that

'the court demonstrated a theoretical optimism that nothing in the record is

likely to support "

10. I came to the conclusion, that the Panel arrives at paragraph 93 of the

ruling that "[i] n these circumstances, (...) in relation to the discretion of the

authorities in this area the decision to return was based on relevant and

sufficient grounds for the purposes of paragraph 2 of Article 13, first

paragraph, letter b) of the Hague Convention, and was proportionate to the

legitimate aim pursued. "

11. In a word, and with a view to enjoying fundamental rights of the rule,

including in the context of private international law, I find a violation of Article 8

of the Convention has occurred.