Information Note on the Court’s case-law 120

June 2009

Neulinger and Shuruk v. Switzerland (referral) - 41615/07

Judgment 8.1.2009 [Section I]

Article 8

Article 8-1

Respect for family life

Respect for private life

Order for child whom mother had abducted with a view to settling in Switzerland to be returned to Israel: case referred to the Grand Chamber

The first applicant settled in Israel, where she got married, and the couple had a son. In response to fears that the child (the second applicant) might be taken abroad by his father to live in a community where he would be brought up according to the father’s religious beliefs, the family court issued an order proh ibiting the boy’s removal from Israel until he attained his majority. Provisional custody of the child was granted to the first applicant and both parents were to exercise the parental rights jointly. The father’s right of access was subsequently restricte d as a result of his aggressive behaviour. The couple’s divorce was granted and the first applicant secretly left Israel for Switzerland with her son. The Swiss Federal Court ultimately ordered the first applicant to return the child to Israel.

In a Chambe r judgment the Court held, by four votes to three, that there had been no violation of Article 8. The child’s removal to Switzerland had been wrongful, since the father, jointly with the mother, exercised the parental rights, which included under Israeli l aw the right to determine the child’s residence. Moreover, the child’s removal to a foreign country had rendered illusory, in practice, the right of access that had been granted to the father living in Israel. In addition, the Israeli authorities had clear ly been willing to provide for the applicants’ protection through the various measures that had been ordered. Lastly, whilst a return to Israel might entail some inconvenience, it was in fact in the child’s best interest, enabling him to have regular conta ct with both parents. The Federal Court’s decision on the child’s return had thus been based on relevant and sufficient reasons and had been proportionate to the legitimate aim pursued. A fair balance had been struck between the competing interests and the child’s best interests had been taken into account.

The case has been referred to the Grand Chamber at the applicants’ request.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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