CONCURRING OPINION OF JUDGE SERGHIDES

1. I voted in favour of both points of the operative part of the judgment and my only disagreement is with the decision to leave open the question whether the removal of the applicant’s daughter to Russia was wrongful within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction, hereinafter the “Hague Convention” (see paragraphs 42 and 46 of the judgment). My opinion, which I will explain below, is that the child’s removal to Russia by its mother was wrongful and therefore constituted an abduction under Article 3 of the Hague Convention.

2. The judgment found that the guarantees of Article 8 of the Convention were secured merely because the domestic courts carried out a genuine and objective evaluation of the alleged risk of the child’s return to the country of its habitual residence (see paragraphs 42, 44-46). Although I am in agreement with this finding, I nevertheless entirely disagree that the Court should come to examine the issue of defences under Article 13 (b) of the Hague Convention, as the judgment did in the present case, without first establishing whether there has been a wrongful removal or retention (in the present case wrongful removal) under Article 3 of the Hague Convention.

3. Just as the Convention provisions must be interpreted and applied harmoniously between themselves according to the principle of internal harmony or coherence (systemic interpretation), which is an aspect or dimension of the principle of effectiveness [1] , the same must apply in respect of the Hague Convention’s provisions. There is an additional reason for the harmonious interpretation of Article 3 with Article 13 (b) of the Hague Convention, the first being a sine qua non requirement or condition for the latter (an indispensable prerequisite). I would therefore point out that there should not be any discussion of the issue of a defence under Article 13 (b) of the Hague Convention without establishing whether there has been a wrongful removal, i.e., an international abduction, in the first place. To examine under the Hague Convention the existence of a defence without first establishing that there has been an abduction is analogous in criminal law to examining a defence without first having shown that an offence is made out.

4. The European Convention on Human Rights is part of international law and must be interpreted harmoniously with the provisions of other international treaties in accordance with the principle of external harmony or coherence (the broader form of systemic interpretation), which is again an aspect or function of the principle of effectiveness [2] . One of the best examples of treaties with which the Convention should be interpreted harmoniously is indeed the Hague Convention. However, that convention should not be interpreted and applied piecemeal, either by domestic courts or by the Court, when it is considered for the purposes of Article 8 of the Convention. It is submitted that there is no harmonious interpretation of Article 8 with the Hague Convention when the Court leaves open the issue of an indispensable requirement of its application, that is, whether there had been an abduction. In other words, the interpretation of Article 8 in relation to the Hague Convention is not harmonious when the Court examines a defence under the latter, i.e., the “grave risk” exception under Article 13 (b), without first establishing the legal substratum or requirement, namely, the existence of wrongful removal or retention, which is indispensable for triggering any defence under that convention.

5. The reason given in paragraph 42 of the judgment as to why it left open the issue of the removal’s wrongfulness is that, regardless of the Russian courts’ finding that the child’s removal had not been wrongful in terms of the Hague Convention, which would exclude the application of that convention, those domestic courts nevertheless proceeded as though the duty to return the child had been triggered and considered that they were not bound to order the child’s return in view of the exception provided for in Article 13 (b) of the Hague Convention. However, with all due respect, this reason is not valid since, as has been explained above, an Article 13 (b) exception cannot be triggered unless the finding of the domestic courts is that there has been a wrongful removal or retention.

6. Since the present judgment expressly left open the issue of the wrongfulness of the child’s removal to Russia , one may be allowed to suppose that the removal could have been either wrongful or lawful. But if it were the latter – and that was indeed the decision of the domestic courts – what would be the point of the Court, in the present case, engaging in the task of examining the issue of an abduction defence and considering it in the light of Article 8 of the Convention? If there was no abduction, the Hague Convention would not be applicable and there would be no need for the Court to interpret Article 8 in conjunction with the Hague Convention. Consequently, the Court should not have left open an issue which was necessary for its decision.

7. My view in finding that there had been a wrongful removal of the child by its mother to Russia is consistent with the harmonious interpretation of Article 8 of the Convention in relation to the Hague Convention as a whole (as a unity, in its integrity) and does not suffer from the fundamental conceptual and practical defects to be found in the present judgment.

8. Regrettably, as has been said above, the Russian domestic courts also erroneously approached the Hague Convention by deciding an issue of defence under Article 13 (b), whilst having first established that there had been no wrongful removal or retention under that convention. The fact that the domestic courts found that the removal to – and retention in – Russia were lawful is evident from the facts as set out in paragraphs 24-27 of the judgment and is also clearly referred to by the Court in its assessment (under the “Court’s assessment”) in paragraph 41. The Russian domestic courts, having found that the removal to Russia was not wrongful, should have dismissed the application under the Hague Convention without examining any issue of defence. Thus they fell into a fundamental conceptual and practical flaw regarding the interpretation and application of the Hague Convention. On the other hand, the Court, as has been suggested above, should not so lightly have left open the issue whether or not the removal was wrongful, since there was a decision of the domestic courts not allowing them to examine further any issue under the Hague Convention, and that flaw could have been addressed if the Court had decided to disagree with the domestic court on the issue of the lawfulness of the removal.

9. I will now explain why, in my humble view, the child’s removal to Russia by its mother was wrongful.

10. The decision of the Geneva Adult and Child Protection Court of 13 December 2016 divesting the applicant of his parental authority in respect of his daughter and forbidding him all contact with her was of a temporary nature , having effect only for the duration of the custody proceedings between the applicant and the child’s mother.

11. Article 3 of the Hague Convention does not explicitly provide for such situations and the issue has been raised here for the first time to the best of my knowledge [3] . It is submitted that Article 3 must be interpreted in a constructive and effective manner so as not to permit parents exercising sole custody of a child on a temporary basis to take important decisions in respect of the child that would unavoidably lead to permanent implications for the latter and the left-behind parent. To hold otherwise would go against the scope and spirit of the Hague Convention and would allow a parent to act unilaterally and arbitrarily circumvent the said treaty. The main aim of the Hague Convention, as indicated in its preamble, is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence”. It is not its aim to deal with the question as to which parent will have custody of a child. In this connection, Article 19 of the Hague Convention provides that “[a] decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue”. On this topic, Eliza Pérez-Vera in paragraph 71 (at p. 36) of her Explanatory Report on the Hague Convention explains (emphasis added):

“Now, from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention’s true nature is revealed most clearly in these situations: it is not concerned with establishing the person with whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks , more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties .”

In the present case, the child’s mother was not prevented from taking unilateral action resulting in an important change of circumstances for the child and its left-behind father, and nor did the domestic courts or this Court find that there had indeed been an abduction in terms of the Hague Convention, to the great discontent of the applicant.

12. I further submit that the removal of the child by its mother was to be considered wrongful given that at the time of the removal, the applicant retained a right to have his child’s place of residence determined by the domestic courts, for which he had filed a petition, which was pending. Article 5 (a) of the Hague Convention provides that “[f]or the purposes of this Convention – a) ‘rights of custody’ shall 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 ” (emphasis added). The child’s mother could not remove the child to another country without either the father’s consent or the filing and approval of an application for relocation decided by the domestic courts after the father had first been heard . The facts subsequent to the removal, as stated in paragraph 21 of the judgment, can shed light upon this point and can also show how easily an interim order granting the residence of a child to one parent can be changed, with its terms completely varied in transferring rights from one parent to another. In particular, on 21 November 2017 the Geneva Adult and Child Protection Court gave a decision to withdraw the mother’s de facto custody of the child, as well as the right to determine its place of residence (in Switzerland); the said court ordered the child’s placement with the applicant; it ordered the mother to take the child to Switzerland; it granted the mother the right to maintain contact with the child, without leaving Switzerland (every other weekend, one day during the week and half of all holidays). That decision was immediately enforceable.

13. In view of the above, I disagree with the findings of the domestic courts that the child’s removal or retention had not been wrongful for the purposes of the Hague Convention. Since, in my view, the removal itself was wrongful, no question of wrongful retention would then arise.

14. To conclude: (a) I disagree with the judgment that the issue whether or not the child’s removal was wrongful should have been left open; (b) I maintain that the child’s removal was wrongful; and (c) I agree with the judgment that the application was admissible and that there had been no violation of Article 8 of the Convention for the reasons explained in paragraphs 45 and 46 of the judgment.