DISSENTING OPINION OF JUDGE ZUPANČIČ, JOINED BY JUDGE GYULUMYAN

With regret , I feel compelled to file a dissenting opinion in this case because I disagree both with the position of the French Court of Cassation a nd with the majority ' s opinion.

T o go immediately into medias res , I will refer to paragraph 69, third sentence, where the majority mention that the intent of the Hague Convention is simply to re-establish the status quo ante , in order to prevent the legal consolidation of a factual situation which has been illicit from the very beginning.

In private law we, indeed, adhere to the formula quod ab initio vitiosum est , tractu tempore convalesere non po test . The emphasis in the above- mentioned third sentence is clearly on the qualifier “ as fast as possible ” (in French: au plus vite ). In child psychology it is well known that development takes place in the first six years and that, therefore, what happens in that period of life is determinative of much of the person ' s adult personality. Because of this crucial period in a child ' s life, it may well be true that what would have been good for the child yesterday is no longer going to be good for the child tomorrow. The passage of time, in that period of life, is constitutive of personality; the days, weeks, months and years which pass create new “ restore points ” in the future adult ' s personality.

The passage of time, in other words, is not simply the passage of time; one may well speak of the fundamental programming of personality. The above -mentioned private law maxim , according to which something that has been corrupt from the beginning is incapable of convalescing, should not apply in child custody matters. The events, among them childhood traumas, create situations in a tender child ' s psychology which will completely pervade its new development.

It is for that reason that I consider the third sentence in the majority ' s paragraph 69 as establishing the crucial perspec tive on the facts of this case.

The mother, who has wrongfully retained the child, admittedly , has illegally created that situation. Th e situation lasted for 19 months , during which the child was with her in France rather than in the State of New York . Nevertheless , this situation cannot be assessed from a formalistic point of view postulating, for example, that the initial illicit detainm ent should be seen as something which will contaminate the legal, moral, and above all psychological position of the mother vis-à-vis the child, the father and society at large. It would be inhuman, in any event, to maintain that the mother , who has always taken care of her little girl , would be to blame because she wants to retain the child – despite the opposition of the f ather and the two legal processes that th e father ' s lawyers have set in motion. Moreover, there were reasons justifying the mother ' s wish to separate from the father. We will deal with these in the latter p art of this dissenting opinion.

One cannot over - emphasi s e the fact that what has happened in this particular case is simply against the best interests of the child.

The over - reaching criterion of The Hague and New York Conventions – a criterion which ultimately supersedes all other determinative criteria – is precisely and always the “best interest s of the child”. It follows logically that it is for each legal organ , including the court of last resort, to keep all other facts of the case in the perspective of its ultimate factual appreciation of what is in the best interest of the child.

On the face of this case , it is impossible to maintain that it would be in any way advantageous for the four-year - old Charlotte Washington to be torn from the hands of her mother by force and transported back to the State of New York into the hands of her father with whom she has not been in any meaningful contact for 19 months. No amount of legalistic acrobatics ca n overshadow this simple fact. The “ best interest s of the child” is the fundamental determinative criterion, a true questio facti , which must be assessed de novo by each court including the court of last resort. Even the European Court of Human Right cannot, in a similar case, escape th is need for factual assessment.

The perspective in this case is, therefore, what is the prima facie nature of the situation. It is impossible to start from the premise, given precisely the best interest s of the child , that the burden should be on the applicants to show that the snatching of the child by the French State from the mother is something which is not legitimate. The simple factual and psychological situation was such that the reverse ought to have been true, that is to say, that the burden ought to have been on the French State to show that it was, despite the passage of time, legitimate to snatch the child by crude police force, put her on an aero plane and send her to the State of New York.

Here we come back to the third sentence in the majority ' s paragraph 69 which does admit that the passage of time is essential . It follows logically that the position of the majority is contradictio in adiecto in relation to the precise extent to which it s own perspective, as well as the perspective s of the Hague and New York Conventions , do coincide with the criterion “as soon as possible” ( au plus vite ).

The majority then attempt to circumambulate the contradiction problem in paragraph 71:

“ The Court fails to see how the interpretation by the domestic courts of Article 13 (b) of the Hague Convention would necessarily be incompatible with the notion of the ' child ' s best interests ' embodied in the New York Convention ” . ( emphasis added )

Clearly, the logical misstep derives from the use of the word “ necessarily ”. The Hague Convention ' s provision 13 ( b), which states:

Article 13

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: ...

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

is not “necessarily” incompatible with the best interests of the child – provided that the restitutio in integrum takes place in a matter of weeks (not months or years!) after the event.

Another logical mistake is made by the majority in paragraph 73, where we read that, according to the Court, to accept the arguments of the mother would undermine the Hague Convention ' s first objective , which is, according to the majority, to impede the retaining parent from legitimi s ing a unilaterally created situation by the “mere” passage of time which, n aturally, plays into his or her hands:

“73 . In the Court ' s view, if the first applicant ' s arguments were to be accepted, both the substance and primary purpose of the Hague Convention, an international legal instrument in the light of which the Court applies Article 8 of the Convention, would be rendered meaningless, thus implying that the above-mentioned exceptions must be interpreted strictly (see, to this effect, the Explanatory Report on the Hague Convention, § 34, quoted in paragraph 43 above). The aim is indeed to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she unilaterally created . ”

What the majority mis understand here is evidently that the passage of time, whether licit or illicit, is determinative of the best interest s of the child. There are plenty of instances of this in the Court ' s own inconsistent case-law, where decisions have been made to favour the retaining mother or to favour the foster parents after a certain period of time –, for the obvious reason that the child at a tender age who has been in a certain domestic setting in which he or she feels secure would be traumatised if he or she were to be displaced.

This is precisely what Article 13 ( b) of the Hague Convention hints at. What counts, in other words, is the well-being of the child in the setting to which the child has not only become accustomed but which has structural influences on the development of his or her personality. To uproot the child in order to vindicate the abstract juridical goals such as announced in the above- quoted paragraphs of the majority, goes against most basic human good sense . In short, o ne need not be a child psychologist or p a edopsychiatrist to understand that a child who has been with her mother all her life , once she has laid down her roots in the stable setting of a small French village, will be traumatised if th o se roots are cut and the child forcibly sent to the State of New York .

The crucial paragraphs of the majority ' s opinion, however, demonstrate the same illogicality as the “Court of Cassation ' s departure from precedent” . In both instances the abstract general prevention has prevailed over the best interests of the child. I asked the pertinent question during the public hearing and I received the answer that there ha d been no political pressure in order for this to happen. I hope this is true. It is nevertheless difficult to understand how the Court of Cassation could suddenly have begun to prefer the general prevent ive effect over the best interest s of the child.

Be that as it may, the inherent logic of the situation is similar to that in Ignaccolo-Zenide v. Romania and in other similar cases, in which the Court has taken inconsistent positions sometimes approving the best interest of the child and sometimes insisting that the child ought to have been snatched from the parent in question ( Nuutinen v. Finland ). Given these inconsistencies, it is clear that the Grand Chamber of this Court should rule on the following question:

In situations where the passage of time has created the psychological constellation in which the child ' s best interest is no longer to be snatched and returned to the complaining parent, the best interest s of the child – according to the Hague and New York Conventions – should prevail. Should the best interest s of the child be subordinate to a strict formalistic logic given the illegal nature of the initial retention of the child?

Clearly, this question goes to the heart of both C onventions as well as to our own interpretation of Article 8 of the European Convention on Human Rights.

According to Article 43 of the European Convention on Human Rights, the request for referral to the Grand Chamber must be accepted “ if the case raises a serious question affecting the interpretation or application of the Convention or the p rotocols thereto , or a serious issue of general importance” . Even if the case- law produced by the Chambers of the Court were completely consistent, which it is not, the question is of such general importance that it calls for the Grand Chamber ' s reassessment. The Chamber ha d in fact wished to have the case heard by the Grand Chamber under Article 30 § 1, because it considered that the case raised a serious problem affecting the interpretation of the Convention.

This proves that the Chamber itself, prior to the impediment set forth by the French Government, ha d considered that it would be necessary for the Grand Chamber to rule on a serious question affecting the interpretatio n of the Convention. Given that, under Article 30 , the p arties retain their right to object, a question might be raised as to whether this objection is not in itself incompatible with the purpose and intent of Article 30.

In this connection it is clear that individual p arties to a dispute ought not to have a determinative power to influence who, the Chamber or the Grand Chamber, will rule on an important question concerning the interpretation of the Convention . The only way to make Article 30 in fine compatible with the rest of the norm in question is to postulate the possibility that subsequent to the Chamber ' s judgment there should be a request for referral to the Grand Chamber by one or both of the p arties under Article 43 § 1. In a very real sense, therefore, paragraph 2 of Article 43 then binds the panel of five judges to accept this case for Grand Chamber proceedings, as this would have happened under Article 30 were it not for the objection of the French government. The intent of Article 30 in fine is that the Parties retain the possibility that the case as such , without any broad implications for the stare decisis , may first be adjudicated by the Chamber.

The procedure before the Chamber clearly functions here as an ante-chamber to the Grand Chamber.

In paragraph 84 the majority also emphasi se the mother ' s total lack of cooperation , which in turn was supposed to justify the forc eful intervention (snatching) by the police in Charlotte ' s kindergarten. An important aspect of this case derives from the cruel and draconian reactions of the Du t chess County Family Court in the State of New York . There the first instance judge Mr Damian J. Amodeo reacted by immediately depriving the French mother of her custody, which had initially been joint custody, and in fact putting her under suspicion of having kidnapp ed the child. Such kidnapping of course is a crime in the State of New York [1] and would make the mother subject to arrest in the United States at the very port of entry , for example at JFK airport. If the mother wished to con test the decision of the local American judge, if she wanted to appear herself before the Du t chess County Family Court, she would at the very least risk visa refusal and possibly arrest. If she were arrested she would risk imprisonment. The arrest on the probable cause that she had committed a Class E Felony would be wholly within the discretion of the local police.

Moreover, to blame the mother for not having appeared in the Du t chess County Family Court in order to litigate the issue as to whether Charlotte w ould leave for the US from France is absurd and points to the revanchist attitude of the local American court. The legal reaction of this family judge does not inspire respect; it is an arrogant over-reaction which was later manifest in the draconian conditions which the same judge imposed in case the mother should wish to see the child. To lay down the conditions requiring a 25,000 USD deposit and the deposit of the passport , for the opportunity to see the child in the court ' s building for a period of half an hour in the presence of a policeman , – in the language of the American Supreme Cou rt Justice Frankfurter – shocks the conscience. Such conditions are completely discriminatory, and this is easy to prove given that such conditions would never have been imposed on a United States citizen.

It is difficult to see how the French Court of Cassation could have overlooked the vindictive nature of the over - reaction of the local judge. This is all the more difficult to understand given that there were suspicions about the father ' s having inflict ed domestic violence for which the local police had to be alerted and called in , as well as suspicions concerning drug abuse by him . It further borders on the absurd to place faith in the father ' s statement that during his absence for work in the State of New York the child would be taken care of by an unemployed nurse in the apartment building where the father lives.

Family law procedure is not a criminal procedure and therefore suspicions concerning the father ' s past behaviour can neither be subject to presumption of innocence nor are they to be litigated as if the burden of proof ought to be on the accusing mother. The undisputed fact that the police ha d been called in by the neighbours because of the reasonable suspicion of domestic violence inflicted by the father should have cast an ominous shadow over the father ' s appropriateness to assume complete custody of the child. The Du t chess County Family Court judge ought to have weighed the evidence and refrain ed from his radical reaction based on nothing more but the ex-parte submitted “evidence” of the father. It is then doubly absurd for the French legal system to react complacently in a situation in which everything spoke for the mot her except the “general preven tive effects” such as alluded to by the majority in para graph 73.

[1] New York Penal Law, Section 135.50 Custodial interference in the first degree. A person is guilty of custodial interference in the first degree when he commits the crime of custodial interference in the second degree: 1. With intent to permanently remove the victim from this state, he removes such person from the state […]

Section 60.12 Authorized dispositions; alternative indeterminate sentence of imprisonment; domestic violence cases […] 2. The maximum term of an indeterminate sentence imposed pursuant to subdivision one of this section must be fixed by the court as follows:  (d) For a class E felony, the term must be at least three years and must not exceed four years.