The proceedings related to a child born in Italy in June 2009 to an Estonian mother and an Italian father. Following the birth relations between the parents deteriorated. Mother and child travelled to Estonia on several occasions. On 2 March 2011, the mother again took the child to Estonia, but they did not return as agreed on 11 March.
On 7 March, the mother applied to the Tartu County Court for sole custody. On 16 March, the father travelled to Estonia, but he did not see his daughter as the mother only agreed for contact to happen in the offices of a law firm. On 29 March 2011, the father made a request to the Italian Ministry of Justice for the child’s return under the 1980 Hague Child Abduction Convention. On 10 May 2011, the father’s return application was filed in the Tartu County Court in Estonia.
On 7 October 2011, the Tartu County Court found the retention of the child to be wrongful and held that the Article 13(1)(b) exception had not been made out. In this it held that: the child’s return would not cause her more suffering than it would an average two-year-old; given the available evidence – including expert opinions – it could not be concluded that the father had ill-treated the child or been violent towards the mother and it could not be held that the child’s return would be contrary to her interests.
The Court dismissed the mother’s arguments based on the child’s separation from her, in this it noted that the Hague Convention did not provide for the return of the child to the applicant parent, but to the other country. The Court held that the mother’s argument surrounding the impossibility of her return to Italy because of the risk of arrest, were irrelevant because the Italian authorities could in any event make use of the European arrest warrant to secure her extradition.
On 12 December 2011, the Tartu Court of Appeal upheld the trial court’s ruling. It noted that under the Hague Convention the child’s swift return to her habitual residence was presumed to be in her best interests. The Court of Appeal concluded that the return of the child would not necessarily lead to her separation from the mother and that she would not be placed in an intolerable situation.
The mother’s evidence, which the trial Court had disregarded, did not demonstrate reliably that the father had abused the child. The Court found that the parents’ mutual accusations indicated that there were strained relations between them, but did not prove the existence of the grounds for refusing the return of the child under Article 13(1)(b).
In February 2012, the Supreme Court declined to examine the case. On 29 February 2012, the mother received a bailiff’s notice that the child was to be returned to Italy within 10 days. On 2 March 2012, a hearing took place before the Milan Youth Court in Italy at which mother and child were present.
On 6 March 2012, mother and child filed an application with the European Court of Human Rights relying on Articles 3, 6(1), 8 and 14 of the ECHR, that the Estonian courts’ decision to order the child’s return to Italy had been in breach of international law and contrary to the practice of the European Court of Human Rights (Neulinger and Shuruk v. Switzerland (Grand Chamber), Application No 41615/07 [INCADAT Reference: HC/E/ 1323]; Raban v. Romania, Application No. 25437/08 [INCADAT Reference: HC/E/ 1330]; Šneersone and Kampanella v. Italy, Application No. 14737/09 [INCADAT Reference: HC/E/ 1152] and X. v. Latvia, Application No 27853/09 [INCADAT Reference: HC/E/ 1146].
The Court exercised its power of characterisation to rule that the applicants’ complaints fell to be examined under Article 8 of the European Convention on Human Rights (ECHR).
