DISSENTING OPINION OF JUDGE KOVLER

(Translation)

Not being in agreement with the conclusions of the majority, and endorsing the comments of Judges Spielmann and Steiner, I wish to set out the additional reasons why I voted against the majority opinion.

In cases that are as sensitive as this one, where the Court traditionally regards the rights of the child in a divided family as paramount (I refer in this connection to the significant number of cases cited in paragraph 72), the Court often focuses on the conditions (material and psychological) in which the child would have to live with each parent respectively (see, in particular, Ismailova v. Russia , no. 37614/02, 29 November 2007).

In the case of the infant Noam, it is of the utmost importance to note that as soon as marital difficulties appeared, provisional custody then guardianship were granted by the Israeli judicial authorities to the mother (see paragraphs 13 and 14). Subsequently, after the intervention of the Israeli social services, the parents were ordered to live apart in the interest of the child; then the Family Court, in an injunction of 12 January 2005, prohibited the father from entering the child ' s nursery school or the first applicant ' s flat, and from carrying or possessing a weapon ( sic ). Lastly, the various decisions granting custody of the child to the mother were confirmed on 10 February 2005 with the parents ' divorce, without there being any change in the attribution of guardianship, which thus continued to be exercised by the mother. There is no reason to question the merits of all these decisions, which attest to the existence of a real breakdown in the relationship between father and son. In addition, we learn that the father defaulted on maintenance payment s to the first applicant and an arrest warrant was thus issued against him on 20 March 2005 (paragraph 18). In addition to these factors, which do not support the father ' s cause, there are the facts referred to in paragraphs 48 and 49.

In these circumstances it is most surprising to note that the Family Court refused to grant the first applicant ' s request to annul the ne exeat order prohibiting the removal from Israel of Noam, who thus became his father ' s hostage, as it were.

There is no point in dwelling here on the details of the judicial battle that followed the mother ' s departure with her son to Switzerland, but I must say that I understand the reasons for the decisions of the Lausanne Justice of the Peace (paragraph 28) and of the Guardianship Division of the Vaud Cantonal Court (paragraph 31), which rightly took the view that the child ' s return to his father would have exposed him to psychological and even physical harm. By contrast, it seems to me that the judgment of the Federal Court of 16 August 2007 was manifestly too formal and failed to have regard to the spirit of the Hague Convention, in particular Article 13 thereof, the primary purpose of which is to protect the interests of the child, while the interests of the parents remain secondary. There is nothing to prevent the father from coming to Switzerland to see his son or from participating in his education b y modern means of communication , until the child is an adult and can decide for himself. In short, Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe is as relevant as ever in stating that “ [c] hildren must no longer be considered as parents ' property, but must be recognised as individuals with their own rights and needs; ... ”. I regret that the Swiss Federal Court and our Court have taken decisions that are at odds with that recommendation.

DISSENTING OPINION OF JUDGE STEINER

(Translation)

I regret that I am unable to agree with the majority in this case.

Above and beyond the legal problems occasioned by its international context, the case of Neulinger and Shuruk raises an ethical question of the utmost significance: what level of protection must be guaranteed to a person under the European Convention on Human Rights in relation to a third State whose legal system does not necessarily incorporate the guarantees which the Convention affords to everyone within the jurisdiction of States Parties to that instrument ?

I note at the outset that the case concerns a child, also having Swiss nationality, who lives with his mother in Lausanne and is threatened with being “returned” to a third country, which is the father ' s country of residence. This situation, moreover, falls within the context of an ongoing family- law dispute involving private interests, which are clearly conflicting, and international constraints.

The principal issue that I wish to highlight, and which was the decisive reason for my opposition to the opinion adopted by the Chamber (by a very slight majority), is that of the child ' s interest – an interest which, according to our own case-law on family disputes under Article 8 of the Convention , must prevail over all other considerations. I will then point out what, in my view, is the mother ' s interest that also should be taken into consideration and protected under the Convention .

In my opinion, as regards the fundamental question whether the child ' s interest has been taken into account, the judgment does not provide a convincing response. Apart from the fact that the Chamber devotes only a single paragraph to such an important question, and even then treats it as a subsidiary issue, the judgment addresses the central point of the case, namely its religious context, in a most summary manner.

Some unease can be detected in the manner in which that question was addressed and determined in the judgment. In taking the view that “ there is no evidence to suggest that the first applicant would be unable to influence her son ' s religious education or that the Israeli courts would be unable to prevent the father from sending him to a religious ' Heder ' school” (paragraph 92 in fine of the judgment), the Chamber displays an excessive formalism and a theoretical optimism that are not supported by any material in the case file.

An excessive formalism, because the majority in the Chamber seem to have adopted a “procedural” viewpoint, placing their confidence, in an abstract manner, in a legal system whose principles in matters of family law, being inspired by traditional religious law which regulates questions of personal status, are sometimes significantly different from those with which we are familiar in Europe.

A theoretical optimism, because the majority seem to disregard the fact that disputes arising under the family law of the third State in the present case, and in particular matters concerning marriage, divorce, maintenance, guardianship and adoption, are justiciable only before religious courts, namely the rabbinical courts.

Moreover, when one considers the path followed by the father which led him to join an ultra-orthodox religious movement, one is entitled to have very serious doubts about the real possibilities for the mother to influence choices that are based more on religious precepts than on the child ' s interest.

If I have rightly understood the motivation underlying the first applicant ' s arguments, she desires that her son, whilst not being cut off from his roots but receiving a religious education for that purpose, should be brought up to respect the principles of tolerance and secularism that prevail in the States Parties to the Convention . Whilst it is certainly appropriate, as guaranteed by Article 2 of Protocol No. 1 to the Convention , to respect the parents ' “religious and philosophical convictions” in their choice of education for their children, it must nevertheless be ensured that, in the event of disagreement, the parents are placed on an equal footing, as is moreover required by Article 5 of Protocol No. 7, which reads: “[s]pouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution”.

For the reasons I have just given, however, I am not convinced that this situation will really obtain if the child is returned, and there is no proof of such an outcome in the case file either.

In these circumstances, being inspired by a precautionary principle in the interest of both mother and child, I consider that the respondent State overstepped its margin of appreciation. No compelling ground s can be invoked to justify such a serious interference, affecting the private and family life of mother and child, and this interference is not therefore necessary in a democratic society.