Aims of the Convention – Preamble, Arts 1 and 2
The father did not seek to challenge the legal basis for the non-return order but the manner in which his return petition had been dealt with, particularly errors and delays he alleged to have suffered at the hands of the district court in Baden.
The Court noted that speed was essential in return proceedings, in order to restore the status quo ante, to prevent any legal consolidation of wrongful acts and to ensure that substantive questions of custody were left to the authorities of the child’s State of habitual residence.
The Court noted that the jurisdiction clause in Article 16 served to prevent the determination of custody from prejudging that of return, as well as allowing the latter issue to be dealt with more expeditiously. The trial court, in combining the return application with the mother’s divorce petition, which would ultimately consider issues of custody, had breached Article 16 per se and also led to delays in the handling of the case.
The delay of 3 _ months between the issue of the return application and the decision of the trial court did not correspond with the requirement for expedition provided for in Article 11 of the Hague Convention.
Consent – Art. 13(1)(a)
The Court equally noted that the father had been disadvantaged by the trial judge’s reversal of the burden of proof within Article 13(1)(a). It affirmed that the Article 13(1)(a) exceptions were to be interpreted restrictively, and that both consent and acquiescence had to be given unequivocally and unconditionally.
Whilst the Federal Court had noted that the reversal of the burden of proof had not been the only factor leading to the court of appeal’s conclusion that the exceptions had been established, this finding had not been enough to correct the breach of inequality of arms which had occurred at trial. The information obtained through the reversal of the burden of proof had not been deprived of all relevance in the subsequent proceedings.
The Court held that whatever measures existed in Swiss internal law to respond to breaches of the Hague Convention, they were not enough in the present case to absolve the State of its international responsibilities. States were required to organise their services and train their agents in a manner which would enable them to respond to the demands of the European Convention. This was particularly necessary in a field as sensitive as international child abduction.
The Court concluded it was not convinced that the best interests of the child, in the sense of a rapid hearing to determine his return to his State of habitual residence, had been taken into account by the Swiss authorities when processing the Hague Convention application. The father’s right to respect for his family life had not therefore been protected in an effective manner.
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