Eskinazi and Chelouche v. Turkey (Application No 14600/05)

INCADAT legal file Hague parental abduction

Share THIS:



The case related to a girl born in 2000 in Israel to a Franco-Turkish mother and a Franco-Israeli father. The girl possessed French, Israeli and Turkish nationalities. The parents were married and travelled frequently with their daughter between the three countries.
On 8 April 2004 the mother took her daughter to Turkey for a ten day stay with the consent of the father. She then decided that she and her daughter would not be returning. Shortly after, the mother and father filed for divorce in Turkey and Israel respectively.
On 29 April 2004 the Family Affairs Court in Istanbul awarded interim custody to the mother, though this was subsequently withdrawn on 9 July 2004, following an application on which reliance was placed on Article 16 of the 1980 Hague Child Abduction Convention.
On 16 May 2004 the Tel Aviv Rabbinical Court ordered the child’s return to Israel and prohibited the mother and daughter from leaving the territory of Israel for a period of one year. The father then sought the assistance of the Turkish Central Authority to bring about his daughter’s return.
On 1 July 2004, following the request of the public prosecutor, (instructed by the Turkish Central Authority), the Istanbul Family Affairs Court prohibited the mother from leaving Turkey.
On 16 August 2004 the public prosecutor applied to the Istanbul Family Affairs Court for the return of the child to Israel. During the following hearings, the mother insisted her daughter had strong ties to Turkey and questioned the ability of the father to take care of the child. She also rejected the application of the 1980 Hague Child Abduction Convention, explaining that the father had agreed to the child’s move to Turkey.
In turn, the father affirmed that his daughter’s place of habitual residence was in Israel, relying notably on various official documents detailing the precise number of days the child had spent in the latter country.
On 25 October 2004 the Court found that the child’s habitual residence prior to her removal was Israel and that all the requirements for the application of the Child Abduction Convention had been met.
On 18 February 2005 the mother appealed the return order on points of law. She notably contested the consideration given to the Israeli decision of 16 May 2004 by the Turkish Court, underlining that this decision had been taken in her absence and in accordance with religious law, as well as the finding made with regard to the child’s habitual residence.
On 29 March 2005 the Court of Cassation upheld the decision of the Istanbul Family Affairs Court of 25 October 2004. The decision became final after the mother’s application for rectification was rejected in September 2005. On 10 October 2005, the father sought the enforcement of the return order. In the meantime, criminal proceedings were brought against the father in Turkey because of an incident in February 2005 during a period of supervised contact.
On 20 April 2005 the mother lodged an application before the European Court of Human Rights (ECrtHR) on her own behalf and that of her daughter, on the basis of Articles 6 and 8 of the European Convention on Human Rights (ECHR). She affirmed that the return mechanism of the Child Abduction Convention could not be applied and that the best interests of the child had not been taken into account by the Turkish courts.
She also pointed out that a return to Israel would allow the Rabbinical Court to decide over the custody of her daughter, and that a religious court did not provide the necessary fundamental guarantees relating to public policy.
On 12 October 2005 the European Court of Human Rights requested the Turkish Government, under Rule 39 of its Rules of Court (interim measures), to refrain for the time being from taking action to return the child.