JOINT PARTLY DISSENTING OPINION OF JUDGE S POWER-FORDE AND NUSSBERGER

We disagree with the majority in finding no violation of Article 8 in relation to the applicant ’ s complaint concerning the domestic courts ’ assessment of his claim under the Hague Convention on the Civil Aspects of International Child Abduction (herein after “the Hague Convention”). Whilst we accept that the Hague proceedings were dealt with expeditiously (September 2005 to October 2006), we cannot accept the reasoning of the District Court ’ s finding that the retention of the child in the Czech Republic was not to be regarded as wrongful pursuant to Article 3 of the Hague Convention. In our view, there is an obvious lacuna in the judgment of the District Court insofar as the applicant ’ s complaint about the wrongfulness of the child ’ s removal from Sweden is concerned.

The basic idea enshrined in the Hague Convention is to prohibit the wrongful action of one party from predetermining or having a bearing upon later decisions taken on custody and contact rights. Essentially, illegal actions should not ‘ pay ’ and no parent or guardian should win any legal advantage for having wrongfully removed a child from the jurisdiction in which he or she was habitually resident immediately prior thereto: Ex iniuria ius non oritur . It is for this reason that the Hague Convention requires Contracting States to act expeditiously in proceedings for the return of children whose removal is considered to be wrongful.

The respondent State submits that since the retention of the child in the Czech Republic was found to be lawful, the matter of whether her removal from Sweden was wrongful “lacked relevance”. [2] How can a complaint under the Hague Convention conce rning the wrongful removal of a child lack relevance ? It appears to us that the Swedish court did not assess, in any meaningful way, the alleged wrongfulness of the applicant ’ s child ’ s removal from Sweden but focused instead only upon the issue of her retention in the Czech Republic . The reason given by the District Court for not deeming that retention to be wrongful was that shortly after her initial removal from Sweden that same Court had made an interim order that the child should reside permanently with her mother. [3] Herein lies the core of the problem in this case.

An interim decision on custody and residence cannot have the effect of circumventing a State ’ s obligations under the Hague Convention nor can it displace the entire philosophy and rationale upon which that Convention is founded. In our view, the District Court in determining the application under the Hague Convention ought to have taken into account the legal situation that prevailed as of September 2005 (namely, at the time of her removal from Sweden ) and not the situation that existed in October 2006. The Hague Convention is very clear in this respect. The alleged wrongfulness of a removal has to be assessed in the light of the circumstances present at the time of the removal and not with regard to subsequent developments. If the Swedish courts had ordered the prompt return of the applicant ’ s child to Sweden in 2005/2006 then all issues in relation to custody or residence could have been determined within that jurisdiction having regard to what was in her best interests. Having failed entirely so to do, it proceeded to assess the custody proceedings, some five years later, in the light of the passage of time and of the practical difficulties faced by the applicant in exercising his provisional rights of contact. On this basis, it concluded that the advantages of a change in the child ’ s domicile would not outweigh the disadvantages since she had not seen the applicant for several years and spoke no Swedish. This approach, in our view, stands in marked contrast to the entire philosophy upon which the Hague Convention is founded, namely, the prevention of a later decision on a matter being influenced by a change of circumstances brought about through the unilateral action of one of the parties.

We consider that no criticism, express or implied, can be made of the applicant for the rupture in the relationship with his child. We accept that the costs involved in visiting the Czech Republic were prohibitive having regard to his financial circumstances. We also note that he was expressly advised against such a visit by the Swedish authorities for so long as the proceedings under the Hague Convention were pending. [4]

In the light of the principles laid down in Neulinger and Shuruk v. Switzerland [5] we can accept that the return of the applicant ’ s child to Sweden some five years after her removal from that jurisdiction may not have been in her best interests. However, it does not follow that the failure of the Swedish courts to assess, at the relevant time, the alleged wrongfulness of her initial removal and, if necessary, to order her return, did not violate the applicant ’ s rights under Article 8.

We find that there has been a violation of the applicant ’ s rights to respect for his family life based not solely upon the procedural aspect of Article 8 but also, substantively, on the basis of the domestic courts ’ failure to consider his claim in relation to the wrongful removal of his daughter from Sweden . That failure, in our view, contributed significantly to the situation in which the applicant finds himself today.

[1] As of 20 February when the claim was raised .

[2] Paragraph 13 of the Government’s Submissions dated 20 November, 2008.

[3] Order dated 14 November 2005.

[4] Applicant’s Submissions dated 20 February, 2009, page 10.

[5] Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, ECHR 2010.