CEDH · CASELAW;CLIN;ENG — 6 novembre 2008

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Switzerland - 49492/06 Judgment 6.11.2008 [Section I] Article 8 Article 8-1 Respect for family life Finding that child's removal was not wrongful for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction: violation   Facts : The applicant is an American national and the father of C., who was born in 2004 of his union with a Swiss national. In 2005 the mother, who was living with her husband and son in the United States, travelled to Switzerland with the child and decided to stay there permanently. She instituted divorce proceedings before the District Court and requested interim measures for the duration of the divorce proceedings, in particular with a view to obtaining custody of the child. Relying on the Hague Convention on the Civil Aspects of International Child Abduction, the applicant asked the Swiss courts to order his son’s return home. The President of the District Court ordered the applicant’s wife to hand in the child’s passport immediately and prohibited him from leaving Switzerland. At the same time he decided to join the proceedings concerning the child’s return to those concerning the divorce. In 2006 the President of the District Court rejected the applicant’s request, in particular because he was unable to produce evidence in support of his allegation that he had consented to the mother’s temporary stay in Switzerland solely on the condition that she subsequently brought their son back to the United States. The judge therefore considered that the child's removal had not been wrongful for the purposes of Article 3 of the Hague Convention as the applicant had given his consent and there was insufficient evidence of any wrongdoing in the failure to return the child. The applicant appealed against that decision in the Court of Appeal, then in the Federal Court, but to no avail. Law : The main issue in this case was the obligation to settle the matter of the child’s return to the United States without delay, so it was appropriate to examine it from the angle of the “positive”   obligations incumbent on the domestic courts under Article 8. It was to be noted that Article 16 of the Hague Convention required that no decision be taken on the merits of rights of custody until the matter of the child’s return had been determined. That meant that the District Court’s decision to join the two proceedings was not only in contradiction with the provisions of the Hague Convention but also had the effect of prolonging the proceedings before the domestic courts to determine the matter of the child’s return. Furthermore, the time lapse between the applicant’s initial action and the decision of the President of the District Court had fallen short of the requirement of Article   11 of the Hague Convention that the authorities of the requested State should act “expeditiously” in proceedings for the return of children. Failure to reach a decision within six weeks could give rise to a request for a statement of the reasons for the delay. Also, in clear contradiction with the terms of Article 13 of the Hague Convention, the President of the District Court had reversed the burden of proof in requiring the applicant to “establish”   that he had not “consented to or subsequently acquiesced in the removal or retention” of the child. The applicant had thus been placed at a clear disadvantage in the proceedings concerning the child’s return. The Court of Appeal’s correct application of the aforesaid Article 13 had not rectified the breach of the equality of arms at first instance as the information obtained thanks to the reversal of the burden of proof was not without relevance to the domestic courts’ appraisal of the material circumstances. Pointing out that, in such delicate matters as the removal of a child, a particularly high level of diligence and caution was needed, the Court was not convinced that C.’s best interests, in the form of a decision concerning his immediate return to his familiar environment, had been taken into account by the Swiss courts, in conformity with the Hague Convention, when they had examined the request for his return. As these failings had not been corrected by the higher courts, the applicant’s right to respect for his family life had not been effectively protected by the domestic courts. Conclusion : violation (unanimously). Article 41 – EUR 10,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes