DISSENTING OPINION OF JUDGE DEDOV

I regret that I cannot subscribe to the conclusion of my colleagues who found a violation of Article 8 of the Convention in the present case. Apart from the complex and sensitive nature of the case, I agree with the Government ’ s observations in which they state that any delay in the proceedings was not caused by the authorities, but rather by the applicant himself ( see paragraphs 78-83 of the judgment), and that there was no interference with the applicant ’ s right to respect for his family life ( see paragraph 84 of the judgment). If the national court finds that the return would be harm ful to the child, so that the decision is not in favour of the applicant, then the time factor does not matter. The positive obligations should not be limited to the expeditious return of the child ; it takes time to be sure that the child ’ s return is not harmful in order to avoid mistakes like the ones which were made in the case of X v. Latvia ( [GC], no. 27853/09, ECHR 2013 ) .

In general, I believe that the legal mechanism envisaged by the Hague Convention on the Civil Aspects of International Child Abduction is not suitable for the assessment of rights under Article 8 of the Convention , as the Hague Convention does not provide a comprehensive approach to the conduct of the return proceedings. Let me clarify some aspects of my last point.

The Explanatory Report (referred to in paragraph 63 of the judgment) explains in paragraph 11 that the Hague Convention applies to situations where “ the child is taken out of the family and social environment in which its life has developed ... The problem therefore concerns a person who, broadly speaking, belongs to the family circle of the child; indeed, in the majority of cases, the person concerned is the father or mother. ” If the Hague Convention concerns “ the father or mother ” , who have perhaps failed to create a family, why is this sensitive issue not addressed by the Hague Convention at all? Does not each of them separately represent the family for the child , in which case the first sentence in the Report above contradicts the second one?

If one of the parents seeks a divorce, then the family does not exist anymore. However, the Hague Convention is not adapted to this new situation. It does not ensure a balance in the protection of the rights of both parents. On the contrary, it automatically places the “ injured ” partner in a privileged position as the ultimate holder of custody rights and it consider s the other partner as an abductor without any right of custody. I cannot see how this is fair. From the point of view of common sense it is hard to understand how a mother could wrong ful ly abduct her own child.

Undoubtedly, both parents have the right of custody, and the separation cannot be considered as “ wrongful abduction ” . The Hague Convention was created to establish the national jurisdiction of authorities to decide on the issue of custody of the child after divorce. However, this document does not take into account the serious vulnerability of a mother who is completely dependent on her husband , or the vulnerability of a minor (especially a boy of less than three years old, as in the present case) for whom the separation from his or her mother would lead to distress.

I have personally come to the conclusion that the Hague Convention is not suited to situation s relating to the end of family life, and hence to the situation which this text was initially aimed to address , namely, as stated in its preamble: “ ... to protect children ... from the harmful effects of their wrongful removal... ” It appears that the national authorities acted in the best interests of the child. They took into account the fact that the wife had been completely dependent on the applicant in every way (financially, economically, and in terms of accommodation ( see paragraph 13 of the judgment) ); that , owing to the age of the child and his mother ’ s constant care of him since birth , the child was emotionally primarily attached to her; and that separating them and return ing and transfer ring the child to a different environment would be traumati s ing for the child for the purposes of Article 13 (b) of the Hague Convention ( see paragraphs 32, 39, 41 and 43 of the judgment). In general, the establishment of a risk of psychological harm under Article 13 prevails over the expeditious return requirement under Articles 11 and 12 of the Hague Convention.

Although this idea requires further explanation, it should not be forgotten that the national court established the risk within seven months after removal of the child, that is to say, expeditiously in terms of Article 12. Time does not matter in the present case also because the boy was emotionally attached to his mother from birth. It is important to note that the Hague Convention does not satisfy the proportionality test as it makes no distinction between different stages of a minor ’ s life. Children up to seven years old are usually emotionally attached to their mothers ( as in the present case) ; the environment does not matter to them, and separation would lead to distress and trauma. This means that a “ risk ” within the meaning of Article 13 always exist s for such children. Between the ages of seven and thirteen the environment becomes more important and a return therefore becomes more realistic, unless there is a “risk” which should be considered as really “ grave ” . Hence, the threshold for a non-return decision should increase with the development of the child. And last ly, children older than , say, thirteen should have the right to decide for themselves and express their own opinion. The Hague Convention does not provide for any of the above options.

It is important to note that the wife of the applicant in this case was in an extremely vulnerable position in that she had no prospect of obtaining custody of her son in the U nited S tates . The United States authorities first granted the applicant interim custody ( see paragraph 16) and then sole custody of the child ( see paragraph 53). This situation is quite typical, but the Hague Convention does not provide any guarantees for such vulnerable persons.

It should also be noted that a child ’ s return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child ’ s best interest s , from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences. For that reason, those best interest s must be assessed in each individual case (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07 , § 138, ECHR 2010; see also X v. Latvia , cited above, §§ 98 and 101).

As a result, a contradictory rule gives rise to unstable court practice: few judgments are delivered without a dissenting opinion, and there is nothing to prevent national courts from coming to opposite conclusions in similar situations regarding the applicability of Article 13 of the Hague Convention to the return of a two-year-old child (compare the circumstances in the present case and, for example, those in Phostira Efthymiou and Ribeiro Fernandes v . Portugal , no. 66775/11, 5 February 2015).