Information Note on the Court’s case-law 52

April 2003

Sylvester v. Austria - 36812/97 and 40104/98

Judgment 24.4.2003 [Section I]

Article 8

Article 8-1

Respect for family life

Adequacy of measures taken to enforce court decisions ordering return of child to father living abroad: violation

Facts : The first applicant, a United States citizen, married an Austrian national in 1994. Their daughter, the second applica nt, was born the same year. Under the law of the state in which they lived, the parents had joint custody. In October 1995 the mother took the child to Austria without the first applicant's consent. However, in December 1995 the Graz District Court found t hat the child had been wrongfully removed and ordered her return to the first applicant. It dismissed the mother's claim that return would entail a grave risk of physical or psychological harm within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction. The mother's appeals were dismissed. In May 1996 the court ordered enforcement of the return order. However, an attempt to enforce the order was unsuccessful and in August 1996, on the mother's appeal, the Regional Court quashed the order and referred the case back to the District Court with instructions to examine whether the situation had changed in view of the lapse of time and to obtain an expert report. The Supreme Court rejected the applicant's appeal, considering th at abrupt removal of the child from her main person of reference and return to the United States would cause irreparable harm. The District Court subsequently dismissed an application by the first applicant for enforcement of the return order, referring to the expert's opinion that return would expose the child to psychological harm. The first applicant's appeals were unsuccessful. The mother was awarded sole custody in December 1997.

Law : Article 8 – In cases of this kind, the adequacy of a measure is to b e judged by the swiftness of its implementation, as the passage of time can have irremedial consequences. A change in the relevant facts may exceptionally justify the non-enforcement of a final return order under the Hague Convention, but the change must n ot have been brought about by the State's failure to take all measures that could reasonably be expected. In the present case, the decisions quashing the return order relied rather heavily on the lapse of time and the ensuing alienation between the applica nts and the question therefore arose whether the delays were caused by the authorities' failure to take adequate measures. In that respect, while the initial proceedings were conducted with exemplary speed there were important delays thereafter. In particu lar, it took three and a half months for the Regional Court to decide on the mother's appeal, although the courts were under a duty to decide expeditiously, and it took more than five months for the District Court to obtain the expert opinion. The case was ultimately decided on the basis of the time which had elapsed but the lapse of time was to a large extent caused by the authorities' own handling of the case. Moreover, they did not take any measures to create the necessary conditions for executing the re turn order while the lengthy enforcement proceedings were pending. The authorities had thus failed to take, without delay, all the measures that could reasonably be expected for enforcement of the return order.

Conclusion : violation (unanimously).

Article 6 § 1 – The lack of respect for the applicants' family life lay at the heart of the complaint and it was unnecessary to examine the facts also under Article 6.

Conclusion : no violation (unanimously).

Article 41 – The Court awarded the first applicant 20,000 € in respect of non-pecuniary damage and also made an award in respect of costs and expenses. It considered that the finding of a violation constituted sufficient just satisfaction in respect of the second applicant.

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

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