JOINT DISSENTING OPINION OF JUDGES PACZOLAY AND SCHEMBRI ORLAND

1. We regret that we cannot share the majority’s opinion in the present case that there has been no violation of Article 8 of the Convention. The applicant complained that there had been a breach of his right to respect for his family life in that the domestic courts had failed to correctly apply the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) when deciding on his application for an order to return the child to his country of habitual residence in Switzerland.

2. The Court has on many occasions pronounced on matters of child abduction within the context of the Hague Convention. The particular circumstances of this case, however, involve the application of the exception of consent/acquiescence by the requested courts set forth in Article 13(a) of the Hague Convention. [1] This case therefore presented an opportunity to review the compatibility of the application of the Hague Convention by the national courts with Article 8 of the ECHR with reference to the exception to the mandated return of the child provided for in Article 13(1)(a) of the Hague Convention.

3. The general principles concerning the harmonious interpretation of the European Convention and the Hague Convention are set out clearly in the judgment. The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington , cited above, § 62), taking into account, however, that the best interests of the child must be the primary consideration and that the objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child” ( X v Latvia § 95).

4. In the specific 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 in 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) [2] .

5. The exception envisaged in Article 13(a) of the Hague Convention constitutes elements for the application of that Convention to the case and relates to the jurisdiction of the requested court to determine custody issues. If the parent left behind is deemed to have consented or acquiesced, then the Courts will not order the return of the child because the retention of the latter by the abducted parent can no longer be considered unlawful. Custodial issues will then fall under the jurisdiction of the requested State in ordinary proceedings. This simple premise links the obligation of prompt return to the consent/acquiescence of the “wronged” parent unless there are circumstances which warrant the grave risk exception.

6. The actual philosophy underpinning the Hague Convention hinges on the concept of the prompt return of an abducted child, which in and of itself safeguards the child’s best interests (in the absence of a grave risk to the child). Inherent in that concept is the right for a minor not to be removed from one of his or her parents and retained by the other, that is to say by a parent who considers, rightly or wrongly, that he or she has equal or greater rights in respect of the minor. [3] It is therefore a matter, once the conditions for the application of the Hague Convention have been met, of restoring as soon as possible the status quo ante in order to avoid the legal consolidation of wrongfully occasioned de facto situations, and of leaving the issues of custody and parental authority to be determined by the courts which have jurisdiction in the place of the child’s habitual residence. [4] It also follows that an arbitrary or broad interpretation and application of the acquiescence exception would be in breach of the applicant’s right to protection of his family life as a parent, and would undermine the purpose of the Hague Convention such as to render it ineffective.

7. It is true that the task of interpreting the exceptions of the Hague Convention 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 European supervision, whereby the Court reviews under the Convention the decisions taken by those authorities in the exercise of the said 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). Thus the Court is competent to review the procedure followed by the domestic courts, particularly in order to ascertain whether the domestic courts, when applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention, especially those of Article 8.

8. Basically, the following two conditions must be observed by the domestic courts of the respondent State in honouring the State’s positive obligations to ensure respect for the applicant’s private and family life. 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 be genuinely taken into account by the requested court. That court must then give a decision which is sufficiently reasoned on that point, so that the Court can ascertain whether those questions were effectively examined. Secondly, those factors must be evaluated in the light of Article 8 of the Convention. [5]

9. Turning to the case at hand, there is no dispute that the child was wrongfully taken by his mother from the country of his habitual residence, Switzerland, to Hungary. The domestic courts considered in no uncertain terms that her conduct was unlawful within the meaning of Article 3 of the Hague Convention. Nor was there a grave risk issue which, though raised by the mother, was discarded without further ado by the domestic courts. It is also undisputed that the applicant did not institute return proceedings until the lapse of some eleven months. During that period the applicant had had no contact with his child for several months (May – October 2015) and had participated in proceedings for interim contact arrangements, which arrangements were put in place.

10. It was during these proceedings that the applicant’s representative made the following statement: “[The applicant] would like to reach a friendly settlement; he has not initiated proceedings under the Hague Convention for the return of the child and does not intend to remove the child from the mother’s custody.”

11. The domestic courts concluded that the applicant had acquiesced to the child’s stay in Hungary on the basis of the following considerations. Firstly, the applicant’s statement was characterised by the second-instance court as a subsequent acquiescence to the child’s retention in Hungary. The Kúria found this to be correct, even though it was not tantamount to an explicit acquiescence (see para. 20 of the judgment). Secondly, the court derived evidence of tacit acquiescence from the following : (i) the delay in lodging the (return) application; (ii) the fact that the applicant requested regular access to the child in Hungary; (iii) the fact that contact was regulated in the course of the divorce proceedings at his request; and (iv) the fact that he initiated return proceedings after the respondent requested that the petitioner’s contact with the child be restricted and supervised.

12. We will address these points below, ultimately reaching the conclusion that the exception set out in Article 13 (a) was not interpreted strictly by the domestic courts, which, moreover, relied on irrelevant factors which did not take full account of the dynamics of cross-border child abduction. We are mindful that such an exercise can easily risk being characterised as a fourth-instance review. This is not our intention. Nonetheless, a broad interpretation of the acquiescence limb of Article 13(a) which falls short of the standards set by the Hague Convention for the actual protection of the child, as well as for the guarantees of Article 8 of the Convention, would justify review by the Courts. None of the factors considered by the court, individually or cumulatively, were, for the reasons mentioned below, sufficiently weighty to evidence a clear and unequivocal waiver by the applicant of his intention to seek the return of the child or to counterbalance the interference to his parental rights.

The applicant’s statement

13. The Kúria considered that this statement was not tantamount to an express acquiescence by the father, but it nonetheless gave weight to it in reaching its conclusions against the applicant. It should be remembered that this statement was made during proceedings for interim contact between the applicant and his child, although at the time the father had not seen his child for several months, and where the applicant’s explicit aim was to reach a friendly settlement. This aim underpinned that statement and circumscribed its purpose and intent. A strict interpretation should have excluded this statement from the court’s analysis. In any event, the statement in question was made in the context of an interim measure for the temporary regulation of custody and access until the final decision on parental rights in the divorce proceedings. Consequently, it was necessarily related to this interim period rather than to the final settlement of the child’s residence, especially since the possibility of the child permanently remaining in Hungary was not discussed. Moreover, in these circumstances, it cannot be held that the applicant could reasonably have foreseen that his statement would subsequently be understood in the return proceedings as an intention concerning the permanent change of the child’s residence and a waiver of his right to have the child returned. Thus, we cannot find that the applicant’s statement clearly and unequivocally showed that he had actually acquiesced in the child’s remaining in Hungary and, furthermore, that it was a relevant factor for the assessment required by the two Conventions.

Tacit acquiescence

14. Given that there was no express, clear and unambiguous declaration of consent to the child’s permanent change of residence , the domestic courts’ attention should have turned to a scrupulous scrutiny of the existence or non-existence of sufficient evidence, in terms of words and actions, which would clearly amount to agreement to the child’s remaining in Hungary.

15. As regards the question whether the applicant’s conduct was a consistent attitude of acquiescence, it is true that the ruling on the applicant’s contact rights to the effect that he could visit his son in Hungary was based on the mutual agreement of the applicant and Sz. I. Furthermore, the applicant took action to that end and, inter alia , made his flat available in Hungary.

16. As to the reliance of the domestic courts on an interim measure on custody and access rights, we might usefully have regard to the commentary on Article 17 of the Hague Convention in the Explanatory Report (see paragraph 22 above), which emphasises that the sole fact that a decision on custody exists would not of itself prevent the child’s return. However, in the present case, when dismissing the applicant’s request for the return of his child, instead of taking into consideration the reasons for the custody decision, the courts relied heavily on the fact that the applicant had been in agreement with the interim arrangements

17. It is true that Hague proceedings were initiated some eleven months after the abduction. This was nonetheless within the one-year time limit prescribed by Article 12 of the Hague Convention which provides for the summary return of the child if a period of less than a year has elapsed from the date of the wrongful retention until the commencement of the proceedings before a judicial authority. In our view, the lapse of time until the application to a court for the child’s return does not necessarily imply acquiescence, nor should it otherwise be held against the applicant since during the intervening period he was attempting to reach an agreed settlement of parental rights by other means, namely the custody and divorce proceedings.

18. Having regard to the foregoing circumstances, we conclude the exception to the child’s return under the Hague Convention was applied by the domestic courts in such a way as to render meaningless the applicant’s lack of consent to his child’s permanent stay in Hungary. In the present case, therefore, the objective result of the proceedings before the domestic courts was that the legitimate interests of the applicant, as the father of the child, were not taken into account in an adequate or fair manner in the judicial decision-making process in Hungary. Moreover, if the interpretation of the domestic courts of the exceptions set out in Article 13 of the Hague Convention 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 voided of any relevance, thus implying that the above-mentioned exceptions must be interpreted strictly.

19. Finally, we are not satisfied that the child’s “best interests”, which consisted in his prompt return to his habitual environment, were sufficiently taken into account by the domestic court when they examined the request for his return under the Hague Convention.

[1] “ 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 –

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or”

[2] Ibid., § 101.

[3] Maumousseau and Washington v France , § 68.

[4] Ibid., § 69.

[5] Ushakov v Russia , § 82