JOINT SEPARATE OPINION OF JUDGES JOČIENĖ, SAJÓ AND TSOTSORIA

1. We voted with the majority in finding that, in the event of the enforcement of the Swiss Federal Court’s judgment of 16 August 2007, there would be a violation of Article 8 of the Convention.

However, we also think that such a return in execution of the Federal Court’s judgment (which orders the mother to secure the return of the child to Israel without additional conditions) would have constituted a violation of Article 8 of the Convention in so far as the Federal Court, in applying the Hague Convention, did not give proper consideration to the applicants’ rights under Article 8 of the Convention.

2. Given that the first applicant acted “wrongfully”, within the meaning of the Hague Convention, by abducting her child and bringing him to Switzerland without authorisation from an Israeli court, it follows that this Convention is applicable in the present case.

3. The Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities. (see, among other authorities, Hokkanen v. Finland , 23 September 1994, § 55, Series A no. 299-A, and Kutzner v. Germany , no. 46544/99, § 65, ECHR 2002-I). On the other hand, we emphatically agree with the majority that the Court is competent to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the European Convention on Human Rights and especially those of Article 8 (see paragraph 133 of the judgment). In the present case the issue is therefore whether the guarantees of Article 8 were secured by the Swiss Federal Court in respect of both applicants when deciding on and ordering the second applicant’s forced return to Israel.

4. In applying Article 13 of the Hague Convention the Federal Court was of the opinion that the “exceptions to return provided for under Article 13 of the Hague Convention must be interpreted restrictively ; the parent who has abducted the child cannot take advantage of his or her unlawful conduct ... Only grave risks must be taken into consideration, excluding any grounds relating to the parents’ child-rearing capacities ...” (quoted in paragraph 44, emphasis added). However, it was bound to secure the guarantees of Article 8 of the European Convention on Human Rights (see paragraph 133). The gravity of the risk has to be understood in harmony with and in the light of the Convention. The public order interest that consists in denying any advantage to someone’s unlawful conduct cannot preclude other rights-based considerations, in particular that of the best interest of the child. The Hague Convention itself enables such a balanced approach in its Article 13.

The proper approach in the application of Article 13 of the Hague Convention would be a balanced consideration of the rights protected in Article 8, keeping in mind that in this context the proper balance can be established only if the best interest of the child is a primary consideration. For example, when a national authority is required to undo the harmful effects of the wrongful removal or retention of a child, it has to take into consideration the consequences of the return for the child; in other words it has to apply the Hague Convention in a forward-looking manner. A restrictive concept of grave risks may preclude a balanced assessment. Moreover, the application of Article 13 of the Hague Convention should entail a comprehensive analysis as suggested by sub-paragraph (b) of that Article, which specifically demands the avoidance of “intolerable situations” resulting from the return of the child.

We find that, as a result of the above-mentioned restrictive interpretation, the Federal Court failed to attribute proper weight to the interests and rights protected by Article 8, together with other Convention rights (in particular Ms Neulinger’s dignity as an autonomous person).

5. The Federal Court failed to provide reasonable grounds for its dismissal of Dr B.’s expert opinion, which had been ordered and accepted by the Vaud Cantonal Court. According to that opinion the child’s return to Israel with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return, in particular the conditions awaiting the mother and their potential repercussions for the child (see paragraph 37). The Federal Court also failed to consider the impact of the father’s limited rights of access and the potential financial hardship. These are paramount considerations to be addressed in applying Article 8, even if the specific decision concerns the return of a child wrongfully removed. Of course, given the specific nature of the situation, the weight of the different factors (for example, the weight of public order in relation to dissuasion of abduction) differs from what is applicable in “ordinary” child placement cases. National courts, having the benefit of direct contact with the persons involved, are better placed to make such assessments and must be accorded a reasonable margin of appreciation.

6. The judgment of the Grand Chamber identifies a number of considerations that it finds relevant today in order to assess whether Article 8 has been complied with. The majority’s approach indicates that in the application of the Hague Convention, Article 8 of the Convention requires a future-oriented approach, which can serve the best interests of the child.

We find that the overwhelming majority of those considerations were applicable as of 16 August 2007. The Court in particular refers to integration into the new environment (see paragraph 145) and to the seriousness of the difficulty the child and his mother are likely to encounter in the country of destination (see paragraph 146). In 2007 the child, having spent two years in Switzerland was already settled in his new environment. This was demonstrated in the domestic proceedings. The Court finds that this was so when it refers to nursery school attendance from 2006 onwards. However, this factor was disregarded by the Federal Court. The Court also finds that the pre-2007 restrictions on the father’s right of access are relevant in the assessment of the risks for the child’s well-being in the event of his return to Israel (see paragraphs 22 and 24.) Once again, the consideration of these factors is expressly precluded by the Federal Court’s deliberately restrictive interpretation of the Hague Convention. Finally, in the view of the majority, the criminal sanctions that the mother might face in the event of her return are also a relevant risk for the child’s well-being. Given that the mother is probably the only person to whom the child relates, such a risk is one that the Court finds not to be acceptable in 2010. But the facts and the resulting risks were already the same in 2007.

7. The Federal Court recognised that the child’s return without his mother would entail a grave risk for him but it found that the mother could reasonably be expected to accompany him to Israel and that the above risk did not therefore exist.

In the Federal Court’s view, the mother had failed to provide objective reasons to justify her preference not to return. In particular it found that the possibility of her prosecution in Israel did not amount to an objective reason as it did not satisfy the burden of proof that she was required to discharge in accordance with its restrictive interpretation of Article 13 of the Hague Convention. The reasoning of the Federal Court implies that in the absence of objective reasons the mother has a duty to return with her child. However, the uncontested legal obligation to take personal care of one’s child does not entail an unconditional duty to do so at any place of residence, in total disregard of the Convention rights of the care provider. In its reasoning the Federal Court disregarded the possibility and related risk that the child might not be accompanied by his mother; the underlying assumption that the mother has to follow the child indicates a disregard of the mother’s Article 8 rights, her freedom of movement and her personal autonomy. In this connection, we are in full agreement with the concurring opinion of Judge Lorenzen, joined by Judge Kalaydjieva.

8. We agree with those judges that the decision of the Federal Court was certainly made with the best intentions to comply with the obligations under the Hague Convention. However, the effect was, in our opinion, that Article 13 of the Hague Convention was not properly assessed in the light of the Convention and therefore the judgment of the Federal Court of 16 August 2007 violated Article 8 of the European Convention on Human Rights irrespective of any subsequent developments in the applicants’ situation.