The child’s mother (M) complained that the effective operation of the Hague Convention, in ordering the return of the applicant’s daughter to her habitual residence in the United States, M having taken her to France for the holidays and refused to return her afterwards, was in breach of their article 8 rights.
Held: The claim failed. The positive obligation to reunite parents with their children had to be interpreted in the light of the requirements of the Hague Convention and the UNCRC. In deciding whether the interference was necessary in a democratic society, the decisive issue was ‘whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – was struck’. Several aspects were involved in the primary consideration of the best interests of the child: for example, ‘to guarantee that the child develops in a sound environment and that a parent cannot take measures that would harm its health and development; secondly, to maintain its ties with its family, except in cases where the family has proved particularly unfit’. The concept of the child’s ‘best interests’ was also a primary consideration in the context of the Hague Convention procedures. The Court accepted entirely the philosophy underlying the Hague Convention. It did not agree that the domestic courts’ interpretation of article 13b was necessarily incompatible with the notion of the child’s best interests. There was ‘no automatic or mechanical application of a child’s return’ once the Hague Convention was invoked, because of the exceptions ‘based on objective considerations concerning the actual person of the child and its environment’.
39388/05, [2007] ECHR 1204, (2010) 51 EHRR 35
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Re E (Children) (Abduction: Custody Appeal) SC 10-Jun-2011
Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would . .
Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.440729
