Neulinger and Shuruk v. Switzerland (Application No 41615/07), Grand Chamber

INCADAT legal file Hague parental abduction

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The application related to a child born in Israel in 2003 to a Swiss mother and an Israeli father. The parents had married in Israel in 2001. After the birth, the mother alleged that the father had joined a radical, ultra-orthodox Jewish sect. Given her fears that the father would take the child abroad to a community of the sect, the mother sought and obtained in June 2004 an order prohibiting the removal of the child from the jurisdiction. The order was to endure throughout the minority of the child. The parents divorced in February 2005. The pre-existing provisional custody order of 27 June 2004 was not amended. This recognized both parents as guardians, but the mother was given custody, the father access.
On 20 March 2005 an arrest warrant was issued against the father for non-payment of maintenance. On 27 March the mother failed in an attempt to have the non-removal order lifted. On 24 June 2005 the mother secretly took the child to Switzerland. Their location was discovered in May 2006. On 30 May 2006 the family Court in Tel Aviv issued an order confirming the removal to have been wrongful. On 8 June 2006 the father filed his return petition.
On 29 August 2006 the justice of the peace for the district of Lausanne (Switzerland) declined to order the return of the child, finding the grave risk of harm exception to have been established. On 27 May 2007 the cantonal court in Vaud (Switzerland) dismissed the father’s appeal, again relying on Article 13(1)(b) of the 1980 Hague Child Abduction Convention. On 16 August 2007 the Swiss Federal Court ordered the return of the child, finding no basis for a grave risk of harm: 5A_285/2007/frs, Tribunal F?d?ral, 2?me Chambre Civile [INCADAT Reference: HC/E/CH 955].
On 26 September 2007 mother and child petitioned the European Court of Human Rights. On 27 September 2007 the President of the Chamber indicated to the Swiss Government, on the basis of Article 39 of the Rules of the Court (Interim Measures), not to proceed with the return of the child. On 1 October the father withdrew his application for enforcement.
On 8 January 2009, by a 4:3 majority, the European Court on Human Rights ruled that there had not been a breach of the mother and child’s right to family life under Article 8 of the European Convention on Human Rights (ECHR): Neulinger and Shuruk v. Switzerland, No 41615/07 [INCADAT Reference: HC/E/ 1001]. On 31 March 2009 the applicants requested that the case be referred to the Grand Chamber. This was granted by the panel of the Grand Chamber on 5 June 2009 and the application of the interim measures was confirmed.