DISSENTING OPINION OF JUDGE SPIELMANN

(Translation)

I do not agree with the majority ' s conclusions and am of the opinion that there has been a violation of Article 8 of the Convention.

1. I first submit that there was no wrongful removal and that, accordingly, the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 , and in particular Article 3 thereof, is not applicable. I would like to emphasise in this connection that the first applicant had been granted a right of custody in respect of her son [1] . An interim decision of 27 June 2004 had given her temporary custody of Noam (paragraph 13 of the judgment). On the recommendation of a social worker the attribution of custody to the first applicant had been confirmed by the court on 17 November 2004 (paragraph 14 of the judgment). As regards “the law, a breach of which determines whether a removal or retention is wrongful , in the [Hague] Convention sense”, it is indeed “a matter of custody rights” [2] .

2. The fact that guardianship was to be exercised jointly with the father and that, under Israeli law, the right to determine the child ' s residence is one of the attributes of guardianship , is totally irrelevant in my opinion . What matters is that the mother, and she alone, was granted custody [3] . That, moreover, is what distinguishes the present case from Maumousseau and Washington v. France (where custody of the child had been granted to the father) and from Eskinazi and Chelouche v. Turkey (where parental authority and custody were exercised jointly) .

3. The Hague Convention , which – I repeat – is in my view inapplicable in the present case , provides in A rticle 5 that “ ' rights of custody ' ... include rights relating to the care of the person of the child and, in particular, the right to determine the child ' s place of residence” [4] . The interpretation by the Federal Court [5] , which incorporated into its reasoning the notion of “guardianship” as provided for by Israeli law , leads to the absurd result of depriving the child ' s mother of one of the attributes of the right of custody , namely the possibility of living with the child at the place of re sidence she considers the most appropriate and where she has established her home [6] . The possibility of living together at the chosen place of residence is in fact necessary if the obligation of care in the best interest of the child is to be fulfilled “effectively” . It is also noteworthy that in the present case the Israeli social services had ordered the parents to live apart in the interest of the child (para graph 15 of the judgment).

4. In the light of the requirements of Article 8 of the Convention, the Federal Court ' s decision that the mother could be “reasonably expected” to return to Israel with her child is disproportionate. Moreover, in paragraphs 74 to 76 of the judgment , the Cour t points out that the “child ' s best interests” must be a primary consideration in any decision on such matters and that “ [c] hildren must no longer be considered as parents ' property, but must be recognised as individuals with their own rights and needs” ( see Recommendation No. 874 (1979) of the Council of Europe ' s Parliamentary Assembly ) [7] . However, the majority have failed to apply those principles in the present case.

5. In this connection I wish simply to point out that the conduct displayed by the father had led the Israeli social services to order the parents to live apart (paragraph 15 of the judgment and paragraph 3 of my opinion). The competent judge of the Tel Aviv Family Court had prohibited the father from entering the nursery school or the first applicant ' s flat and from carrying or possessing a weapon (paragraph 16 of the judgment ). An arrest warrant had been issued against him for defaulting on maintenance payments (paragraph 18 of the judgment ). His right of access had been restricted (paragraph 16 of the judgment ). The mother had even obtained a ne exeat order (paragraph 12 of the judgment ), fearing that the father might leave the country with Noam to join a religious community abroad . As regards the considerable difficulties that the child would encounter in the event of his return to Isra e l , I thus agree entirely with the consid e rations expounded by Judge Kovler in his dissenting opinion .

6. I would like to complete my opinion by adding that, even supposing, for the sake of argument, that the Hague Convention does apply, the order for the child ' s return would be incompatible with the requirements of Article 13 of that c onvention, since the child, who has lived with his mother for more than two years in Switzerland, would be placed in an “intolerable situation” within the meaning of that provision. As Judge Kovler observes in his dissenting opinion, the Lausanne District Court and the Guardianship Division of the Vaud Cantonal Court had correctly considered that the child ' s return to his father would expose him to psychological and even physical harm (see also paragraphs 28 and 31 of the judgment).

7. I do not find t he reasons given by the majority at paragraphs 88 to 93 of the judgment sufficiently convincing to allow me to conclude that the order for the child ' s return was proportionate.

8. Those reasons fail to convince me because:

(a) t h e return of the mother with her child would be very difficult to envisage , since she is socially integrated in Switzerland , where she works for a company in Lausanne ;

(b) t he child has now lived in Switzerland for a number of years;

(c) t he fact that the father would be prepared to look after the child should the mother remain in Switzerland is a wholly irrelevant argument in the light of the particularly distressing background to the case (see paragraphs 11 to 19 of the judgment and paragraph 5 of my opinion);

(d) t he mother faces a criminal sanction if she returns to Israel and a custodial sentence cannot be ruled out;

(e) i n the light of the particularly distressing background to the case (see paragraphs 11 to 19 of the judgment and paragraph 5 of my opinion), any attempt by the first applicant to reach an agreement with the father would have been, and continues to be, in all likelihood bound to fail;

(f) a ny attempt by the first applicant to influence her son ' s religious education would also, in all likelihood, be bound to fail .

9. Even though I am very reluctant to endorse the arguments of my colleague J udge Steiner as to “ the central point of the case, namely its religious context ” , I do share her view that “ the Chamber displays ... a theoretical optimism that [is] not supported by any material in the case file ” .

10. I am therefore unable to concur with the conclusion reached by the Chamber in paragraph 93 of the judgment that “[i]n these circumstances ..., having regard to the margin of appreciation afforded to the authorities in such matters, the return decision was based on relevant and sufficient reasons for the purposes of Article 8 § 2, read in the light of Article 13, first paragraph, sub-paragraph (b) of the Hague Convention, and ... was proportionate to the legitimate aim pursued ” .

11. In short , and from a perspective of the primacy of fundamental rights, including in a context of private international law [8] , I would conclude that there has been a violation of Article 8 of the Convention.

[1] The Explanatory Report on the Hague Convention by Ms Elisa Pérez-Vera ( http://hcch.e-vision.nl/u p load/expl28.pdf .) states as follows: “it is ... clear that the characterization of the removal or retention of a child as wrongful is made conditional upon the existence of a right of custody which gives legal content to a situation which was modified by those very actions which it is intended to prevent. ... we are confronted in each case with the removal from its habitual environment of a child whose custody had been entrusted to and lawfully exercised by a natural or legal person.” (p. 428, paragraphs 9 and 12, emphasis added ).

[2] Explanatory Report , cited above, p. 444, paragraph 65. The report adds: “ Although the problems which can arise from a breach of access rights, especially where the child is taken abroad by its custodian, were raised during the Fourteenth Session, the majority view was that such situations could not be put in the same category as the wrongful removals which it is sought to prevent ” ( ibid . , pp. 444 and 445, paragraph 65, footnote omitted ).

[3] The Explanatory Report , cited above, appears moreover to make a distinction between the right of custody and parental authority in the context of children entrusted to an institution or any other body : “ … if a child were entrusted, by virtue of a judicial or administrative decision ( i.e. compulsory placement of the child ) to such a body in the country of its habitual r e sidence, the parent who sought to obtain the actual enjoyment of custody rights would stand little chance of being able to invoke the provisions of the Convention. In fact, by virtue of the fact that such bodies would as a rule exercise jurisdiction , except as regards the possible recognition of parental authority , such a claim would not come within the scope of the Convention , since custody, in the sense understood by the Convention would belong to the body in question .” Explanatory Report , cited above, p. 4 51 , paragraph 82 ( emphasis added ).

[4] “…. leaving aside the possible ways of protecting the child’s property” Explanatory Report , cited above , pp. 451 and 452, paragraph 84.

[5] For a critical commentary on the judgment of 16 August 2007, see the note by A. Bucher, in AJP/PJA , ( Aktuelle Juristische Praxis ), 12/2007, pp. 1588 et seq .

[6] A. Bucher ( op. cit. , p. 1588) criticises the Federal Court ’s judgment as follows : “ Das Urteil beginnt mit einem krassen Fehler. Der Ausgangspunkt für die Feststellung, dass das Haager Abkommen anwendbar ist, sei die Verletzung des ‘Sorgerechts’ (‘droit de garde’ in der offiziellen Version) des in Israel verbliebenen Vaters ” ( “The judgment begins with a glaring error . The finding that the Hague Convention was applicable seems to have been based on the premise that the right of custody of the father who remained in Israel had been breached” ( free tra nslation ) ) . According to this author , the Federal Court was mistaken to include the determination of the child’s residence among the attributes of custody rights, without taking into consideration the fact that, precisely, the child’s father no longer had custody rights . The author adds that, according to the Federal Court , the child’s relations with its father were confined to a restricted right of access, i.e. for two hours a week, under the supervision of the Israeli social services.

[7] The Explanatory Report on the Hague Convention also refers to Recomm e ndation No. 874 (1979) ( see the Explanatory Report , cited above , p. 431, paragraph 24) and to its “ first general principle ” .

[8] See Patrick Kinsch, Droits de l’homme, droits fondamentaux et droit international privé, Collected Courses of the Hague Academy of International Law, volume 318 (2005), pp. 193-203, paragraphs 151-155 (concerning the influence of German Constitutional Law) and pp. 204-209, paragraphs 156-160 (concerning generalisation in respect of human rights).

The Hague Convention itself, in Article 20, provides: “ The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms”. The scope of this provision is however somewhat uncertain. See the Explanatory Report by Ms Elisa Pérez-Vera, op. cit. , pp. 461 and 462, paragraph 118.