5F_8/2010, IIe Cour de droit civil, arr?t du TF du 26 mai 2011

INCADAT legal file Hague parental abduction

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The case concerned a boy born in Israel in June 2003. The father having associated with a religious movement (Loubavitch), marital difficulties arose in the autumn of that year, then the parents separated. On 20 June 2004, a family court in the region of Tel Aviv barred the child from leaving the territory.
The following week, it awarded residence of the child to the mother, a decision confirmed in November 2004: the parents had shared parental authority, the mother had residence and the father rights of access. On 27 March 2005, the same court dismissed the application for a lifting of the order restraining departure from the country.
On 24 June 2005, the mother nonetheless left Israel with the child. On 29 August 2006, the Justice de paix du district de Lausanne (justice of the peace in Lausanne) dismissed the father’s return application. On 22 May 2007, the Chambre des tutelles du Tribunal cantonale (Guardianship Court of the District Tribunal) dismissed the father’s application but returned the case to the justice of the peace for a review of suitable action to restore personal relations between the child and his father.
The father appealed to the Swiss Federal Tribunal which, on 16 August 2007, allowed the appeal and ordered the child’s return to Israel on the grounds that as there was no reason for the mother not to return to Israel with the child, she could reasonably be expected to return to that State.
The mother applied to the European Court of Human Rights (ECrtHR). The Grand Chamber of that Court delivered, in July 2010, a ruling whereby in the event of execution of the judgment of the Federal Tribunal dated 16 August 2007, there would be a breach of Article 8 of the European Human Rights Convention (ECHR). The mother and child, pursuant to that judgment, entered an application for retrial before the Federal Tribunal.