JOINT DISSENTING OPINION OF JUDGES NICOLAOU, WOJTYCZEK AND VEHABOVIĆ

1. We respectfully disagree with the view of the majority that in the instant case there has been a violation of Article 8.

2. Context is all-important. It is therefore necessary to add a few important points to the presentation of the factual circumstances.

The spouses were Polish nationals who got married in Poland and subsequently moved to Switzerland, where they had their children. That was apparently on the understanding that married life would continue unimpeded. Unfortunately it did not and, as confirmed by the Polish courts in the divorce proceedings, the marital split was entirely due to the conduct of the applicant. He formed a relationship with an employee, with whom he set up home very close to where his wife also had to live. She found herself completely isolated but did not abandon hope that her husband might return to her. Matters reached a crisis point when the applicant ’ s partner became pregnant. As established in the divorce proceedings, the applicant placed his wife in a very vulnerable position. He closed his own bank account and deactivated his wife ’ s credit card. He announced to his wife that their savings amounting to 80,000 Swiss francs (CHF) would be divided into two parts but that she would receive only CHF 9,000 to 10,000. Then the applicant ordered his wife to quit their flat and move into a two-bedroom apartment. The applicant also took most of the documents belonging to his wife, such as her employment certificates and her letters. The health of the applicant ’ s wife deteriorated: she developed anaemia , lost weight and started to suffer from severe depression.

These events, coupled with what was accepted by the domestic court as the applicant ’ s harsh attitude towards her, put her in an intolerable position. She then informed the applicant in April 2008 that she would be petitioning for divorce in Poland. There was nothing untoward in pursuing such a course. She was registered as being domiciled in Poland. She was therefore not forum shopping. The way things had turned out, she could no longer expect a decent life in Switzerland and had no alternative but to seek a new beginning in her home country.

A first set of proceedings in Poland was initiated to establish which court in that country had territorial jurisdiction in the divorce case. It ended with a decision of the Supreme Court, delivered in September 2008. Immediately afterwards, the applicant ’ s wife initiated divorce proceedings there.

There is no evidence that the applicant was not notified about the divorce proceedings, nor that he made any complaint to that effect. After the order of 15 October 2008 was delivered he appealed. His appeal was examined and rejected. The appeal decision contained reasons.

Furthermore, the courts took into consideration the interests of the applicant in the interim orders of 17 December 2008 and 27 January 2009, when the applicant was granted contact with the children for a specific day.

3. Context is also all-important for the interpretation of treaties. The 1980 Hague Convention is not the only instrument regulating matters connected with child abduction in relations between Poland and Switzerland. Both States are also parties to the 1980 Luxembourg Convention (European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children). The 1980 Hague Convention itself has to be interpreted and applied in the context of the Luxembourg Convention.

Secondly, parental rights are regulated by the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. It is true that in 2008 Poland was not yet a party to this treaty; however, Switzerland was not only a party to the treaty but had also made it part of its domestic law. Article 11 § 1 of this latter Convention provides:

“In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.”

4. The majority consider that the decision not to return the child in the circumstances of the case violated the 1980 Hague Convention and therefore also violated the Convention for the Protection of Human Rights and Fundamental Freedoms. We disagree with this view.

In X. v. Latvia the Court clarified the relationship between the European Convention on Human Rights and the 1980 Hague Convention in the following way (at § 106):

“The Court considers that a harmonious interpretation of the European Convention and the Hague Convention (see paragraph 94 above) can be achieved provided that the following two conditions are observed. Firstly, the factors capable of constituting an exception to the child ’ s immediate return in application of Articles 12, 13 and 20 of the said Convention, particularly where they are raised by one of the parties to the proceedings, must genuinely be taken into account by the requested court. That court must then make a decision that is sufficiently reasoned on this point, in order to enable the Court to verify that those questions have been effectively examined. Secondly, these factors must be evaluated in the light of Article 8 of the Convention (see Neulinger and Shuruk , cited above, § 133).”

In the case of Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, § 145, ECHR 2010), the 1980 Hague Convention was described as “essentially an instrument of a procedural nature and not a human rights treaty”. That position remains unchanged by the judgment in X v. Latvia ( [GC] , no. 27853/09 , ECHR 2013) , in which the Grand Chamber reviewed the general principles. The 1980 Hague Convention itself provides for grounds which necessitate a departure from the normal rule of the jurisdiction of the habitual residence of the children. The approach to be taken was lucidly explained by the Court (Section III) in the case of Maumousseau and Washington v. France (no. 39388/05, § 72, 6 December 2007):

“The Court observes that there is no automatic or mechanical application of a child ’ s return once the Hague Convention has been invoked, as indicated by the recognition in that instrument of a number of exceptions to the member States ’ obligation to return the child (see in particular Articles 12, 13 and 20), based on objective considerations concerning the actual person of the child and its environment, thus showing that it is for the court hearing the case to adopt an in concreto approach to each case.”

Where the matter falls under Article 13 (b) of the 1980 Hague Convention, the domestic court will itself look at the substance of the matter and make an appropriate custody order if the best interests of the children so require. This was reiterated by the Grand Chamber in X v. Latvia (cited above), where it was stated (at § 98):

“Thus, it follows directly not only from Article 8 of the Convention, but also from the Hague Convention itself, given the exceptions expressly enshrined therein to the principle of the child ’ s prompt return to his or her country of habitual residence, that such a return cannot be ordered automatically or mechanically (see Maumousseau and Washington , cited above, § 72, and Neulinger and Shuruk , cited above, § 138).”

Later in the judgment, the Grand Chamber expanded on this by explaining the following (at §§ 101 and 102):

“101. Thus, in the context of an application for return made under the Hague Convention, which is accordingly distinct from custody proceedings, the concept of the best interests of the child must be evaluated in the light of the exceptions provided for by the Hague Convention, which concern the passage of time (Article 12), the conditions of application of the Convention (Article 13 (a)) and the existence of a ‘ grave risk ’ (Article 13 (b)), and compliance with the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms (Article 20). This task falls in the first instance to the national authorities of the requested State, which have, inter alia , the benefit of direct contact with the interested parties. In fulfilling their task under Article 8, the domestic courts enjoy a margin of appreciation, which, however, remains subject to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, mutatis mutandis , Hokkanen v. Finland , 23 September 1994, § 55, Series A no. 299-A; and also Maumousseau and Washington , cited above, § 62, and Neulinger and Shuruk , cited above, § 141).

102. Specifically, in the context of this examination, the Court reiterates that it does not propose to substitute its own assessment for that of the domestic courts (see, for example, Hokkanen v. Finland , cited above, and K. and T. v. Finland [GC], no. 25702/94, § 154, ECHR 2001-VII). Nevertheless, it must satisfy itself that the decision-making process leading to the adoption of the impugned measures by the domestic courts was fair and allowed those concerned to present their case fully, and that the best interests of the child were defended (see Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005-XIII (extracts); Maumousseau and Washington , cited above, and Neulinger and Shuruk , cited above, § 139).”

The case of Neulinger and Shuruk v. Switzerland (cited above, § 149) shows that there may indeed be a link between the best interests of children and the choice of the parent, by reason of some particular constraint, not to return to the State where they had their habitual residence. The domestic court may then reasonably decide that ordering the return of the children would place them in an intolerable situation and expose them to psychological harm. Such a course of action is open to it under Article 13 (b) of the 1980 Hague Convention. Once it has so decided, it is duty bound to examine the substance of the matter in relation to the custody proceedings for the purpose of deciding whether or not it should make a custody order. The making of such an order is entirely consistent with the 1980 Hague Convention, whose importance as a jurisdiction-selection treaty is not thereby undermined. Such a situation is to be contrasted with cases falling within the Brussels IIa Regulation, where, under European Union law, the principle of “mutual trust” prevails whatever the circumstances may be: see Povse v. Austria (dec.), no. 3811/11, 18 June 2013; and see also, by analogy, the ECJ judgment in the case of Melloni, C ‑ 399/11, EU:C 2013, 107.

5. In the situation described above, it was right that the Polish court in which the divorce proceedings had been initiated would incidentally also consider making a custody order. At that time the children were lawfully within the jurisdiction of Poland. They had not been abducted and, once they were in Poland, the mother kept them there on the basis of an interim order of the court.

The crucial question was whether, despite the fact that custody matters naturally fall within the scope of divorce proceedings, the domestic court should have refused to entertain this matter and should instead have let it be examined by a Swiss court. We take the view that in such circumstances the domestic court was entitled to consider that it unavoidably had to deal with the custody issue as well. In the circumstances already described it may, understandably, have seemed inconceivable that while the mother remained in Poland, since she had no viable alternative for self ‑ fulfilment in Switzerland, her children should be sent back to Switzerland without their mother and wait there for a decision of a Swiss court on the matter of custody.

The custody order of 15 October 2008 also had to be taken into account during the proceedings under the 1980 Hague Convention. In giving effect to the paramount interest of the children, when that interest was so intimately linked to the plight in which the mother had found herself, including in this regard her new place of residence, the domestic courts had to perform an exceptionally delicate balancing exercise. There is nothing to show that this exercise was not carried out correctly. In the context of the applicant ’ s very hostile attitude towards his wife and the trauma suffered by the children because of their father ’ s behaviour , it was legitimate to consider that the best interests of the children would not be served by their immediate return to Switzerland. To say that the decision not to return the children to Switzerland so that they could stay with their mother in Poland fell within the ambit of exceptions to the principle of returning the child provided for in the 1980 Hague Convention is not an unjustified conclusion.

6. The majority attribute particular importance to the fact that at the very beginning, in the interim order proceedings, the applicant was not given a proper hearing by the Polish courts. First of all, urgency may in some circumstances require provisional measures to be taken without waiting for a party to be properly notified. The matter may be left to the discretion of the judge, provided that adequate safeguards for all the parties are applied in subsequent stages of the proceedings. Secondly, as mentioned above, we do not see any evidence that in October 2008 the applicant was not aware of the initiation of divorce proceedings. Moreover, the applicant did appeal against the provisional order of 15 October 2008 and his right to be heard was fully respected on appeal. There is no evidence that in his appeal he complained of an infringement of his right to be heard. In any event, the applicant was notified about the proceedings under the 1980 Hague Convention and was able to present his case before the domestic courts at two levels of jurisdiction. Further, the domestic courts took into consideration the interests of the applicant in the interim orders of 17 December 2008 and 27 January 2009, when the applicant was granted contact with the children for a specific day.

7. The majority take the view that the period of some six months which it took the domestic courts to decide the matter, at two levels of jurisdiction in adversarial proceedings, was too long. It seems to us, with all due respect, that this view is premised on just one contingency, that of summary proceedings for ordering the return of the children, and does not take account of the needs of an in-depth examination, such as the one warranted in the present case.

8. We note that the majority consid er that the interim order of 15 October 2008 was irrelevant from the viewpoint of Swiss law and could not affect the parental rights of the father under Swiss law. This assumption should have required a much more thorough analysis under Swiss law. The interim court order issued in Poland on 15 October 2008 might have been justified from the viewpoint of Swiss law (under Article 11 § 1 of the 1996 Hague Convention) and therefore could have had certain effects on the scope of the applicant ’ s custody rights under Swiss law.

9. We note, in passing, an inconsistent approach on the part of the Court to the question of the methodology of treaty interpretation. The Court has often emphasised that the Convention is a living instrument and therefore usually refrains from looking at the travaux préparatoires to establish its meaning. The opposite approach has been adopted in respect of the 1980 Hague Convention. To establish the meaning of the latter instrument, the Court has relied mainly on the explanatory report thereto. The reasons for the difference in the approach to treaty interpretation have not been explained.

10. For the reasons we have tried to explain, we conclude that the Polish courts did not exceed the margin of appreciation left to the High Contracting Parties under Article 8 of the Convention.