Applications lodged by the abducting parent
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Protection of the rights of the child 1. United Nations Convention on the Rights of the Child 48. The relevant provisions of the Convention on the Rights of the Child of 20 November 1989, which came into force in respect of Switzerland on 26 March 1997, read as follows: Preamble “The States Parties to the present Convention, ... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ... Have agreed as follows: ...” Article 7 “1. The child shall be registered immediately after birth and shall have the right from birth to ... know and be cared for by his or her parents. ...” Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ...” Article 14 “1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. ...” Article 18 “1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...” 2. Concept of the child’s “best interests” 49. The concept of the child’s best interests stems from the second principle of the Declaration of the Rights of the Child adopted by the United Nations on 20 November 1959. It provides as follows: “The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.” 50. The term was used again in 1989 in Article 3 § 1 of the Convention on the Rights of the Child: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” 51. Neither the working group during the drafting of the Convention nor the Committee on the Rights of the Child has developed the concept of the child’s best interests or proposed criteria for their assessment, in general or in relation to specific circumstances. They have both confined themselves to stating that all values and principles of the Convention should be applied to each particular case (see Rachel Hodgkin and Peter Newell (eds.), Implementation Handbook for the Convention on the Rights of the Child, United Nations Children’s Fund 1998, p. 37). In addition, the Committee has emphasised on various occasions that the Convention must be considered as a whole, with the relationship between the various articles being taken into account. Any interpretation must be consistent with the spirit of that instrument and must focus on the child as an individual having civil and political rights and its own feelings and opinions (ibid., p. 40). 52. The “Guidelines on Determining the Best Interests of the Child” were issued by the United Nations High Commissioner for Refugees (UNHCR). They provide, inter alia : “The term ‘best interests’ broadly describes the well-being of a child. Such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences.” (UNHCR Guidelines on Determining the Best Interests of the Child, May 2008) 53. The principle of “the child’s best interests” is also embodied in Articles 5 and 16 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women. Article 5 (b) reads as follows: “States Parties shall take all appropriate measures: ... (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.” 54. Under Article 16 § 1 (d) of that Convention, States are committed to ensuring the following, with regard to equality between men and women: “[t]he same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; [and] in all cases the interests of the children shall be paramount”. 55. Even though the principle does not appear in the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee in its General Comments Nos. 17 and 19 referred to “the paramount interest” of the child in the event of the separation or divorce of its parents. In its General Comment 17 (adopted at its 35th Session, 1989) the Committee stated that if a marriage is dissolved, steps should be taken, keeping in view the paramount interest of the children, to guarantee, so far as is possible, personal relations with both parents. For abandoned children, special measures must be taken in order to enable them to develop in conditions that most closely resemble those characterising the family environment. In its General Comment No. 19 (adopted at its 39th Session, 1990) the Committee indicated that any discriminatory treatment in regard to divorce, child custody, visiting rights, etc., must be prohibited, unless the paramount interest of the child required otherwise. 56. The European Union’s Charter of Fundamental Rights, which became legally binding with the entry into force of the Lisbon Treaty on 1 December 2009, contains the following Article: Article 24 – The rights of the child “1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.” B. Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”) 1. Text of the instrument 57. The relevant provisions of the Hague Convention, which came into force in respect of Switzerland on 1 January 1984, read as follows: “The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring 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, as well as to secure protection for rights of access, Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions: ... Article 1 The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ... Article 3 The removal or the retention of a child is to be considered wrongful where: (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Article 5 For 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; (b) ’rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence. ... Article 11 “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ... Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 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: ... (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence. Article 14 In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. ... Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Article 21 An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of cooperation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.” 2. Consideration of the child’s “best interests” in the context of Article 13, sub-paragraph (b), of the Hague Convention 58. The Explanatory Report by Ms Elisa Pérez-Vera on the drafting of the Convention states as follows: “... since one factor characteristic of the situations under consideration consists in the fact that the abductor claims that his action has been rendered lawful by the competent authorities of the State of refuge, one effective way of deterring him would be to deprive his actions of any political or juridical consequences. The Convention, in order to bring this about, places at the head of its objectives the restoration of the status quo ...”. (paragraph 16, p. 429) 59. However, the Hague Convention contains five exceptions to the principle of the child’s prompt return, among which the most commonly invoked exception is that of Article 13, sub-paragraph (b). 60. The French Court of Cassation, the House of Lords and the Finnish Supreme Court have all expressly incorporated the concept of the “child’s best interests” into their application of the exception based on a “serious risk” within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. 61. In a case from 2005, the French Court of Cassation stated the following: “... under Article 13, sub-paragraph (b), an exception can be made to the child’s prompt return only if there is a grave risk of harm or of the creation of an intolerable situation;” and “by virtue of Article 3 § 1 of the [United Nations] Convention on the Rights of the Child, a provision that is directly applicable before the French courts, such circumstances must be assessed with the child’s best interests as the primary consideration”. (Court of Cassation, First Civil Division, 14 June 2005, appeal no. 04 ‑ 16942) 62. That court thus upheld a judgment of the Aix-en-Provence Court of Appeal of 13 May 2004, finding as follows: “... the child’s best interests [had been] taken into consideration by the Court of Appeal, which [had] accordingly reached the conclusion ... that it was appropriate to order the prompt return of the child under the Hague Convention.” 63. The Finnish Supreme Court conducted a similar assessment in applying the exception under Article 13, sub-paragraph (b), indicating as follows: “... the court had pointed out that a grave risk of harm would not exist if the mother returned to France with her children and ensured that their living conditions were adapted according to their best interests ...” ([ 27 December 1996] Supreme Court of Finland 1996:151, S96/2489) 64. In a case examined on 16 November 2006 by the House of Lords concerning the abduction of a child from Romania to the United Kingdom, Lord Hope observed: “... it is impossible to believe that the child’s best interests would be served by his return forthwith to Romania.” ( In re D (a child), [2006] UKHL 51, [2007] 1 AC 619) 3. The concept of “rights of custody” under the Hague Convention 65. Article 5 (a) of the Hague Convention defines custody rights as “rights relating to the care of the person of the child, and, in particular, the right to determine the child’s place of residence”. The Convention recognises that custody may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the State in which the child had its habitual residence immediately before removal or retention (Article 3 in fine ). Furthermore, the Explanatory Report on the Convention emphasises the drafters’ intention to protect all the ways in which custody of children can be exercised and recognises that there can be wrongful removal or retention even if parents have joint custody of their child: “In terms of Article 3, custody rights may have been awarded to the person who demands that their exercise be respected, and to that person in his own right or jointly. ... 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” (Explanatory Report by Elisa Pérez-Vera, Acts and Documents of the Fourteenth Session, vol. III, Child Abduction, Hague Conference on Private International Law, paragraph 71, pp. 447-48) 66. The drafters of the Convention created an autonomous definition of custody rights quite apart from domestic-law interpretations of that concept. This autonomous nature was confirmed in the “Overall Conclusions of the Special Commission of October 1989 on the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction” (§ 9, p. 3), which stated as follows: “... ‘rights of custody’ as referred to in the Convention on the Civil Aspects of International Child Abduction constitute an autonomous concept, and thus such rights are not necessarily coterminous with rights referred to as ‘custody rights’ created by the law of any particular country or jurisdiction thereof. ... [T]he award of what is called ‘custody’ to only one parent under domestic law, does not necessarily mean that all ‘rights of custody’ within the intent of the Hague Convention have been granted to that parent. Since each domestic legal system has its own terminology for referring to rights which touch upon the care and control of children, and even some English-language systems do not employ the term ‘custody’, it is necessary to look to the content of the rights and not merely to their name.” 67. The autonomous meaning of “rights of custody” was further confirmed during the second meeting of the Special Commission when the following conclusion, among others, was adopted: “... the expression ‘rights of custody’ ... does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention.” (Report of the Second Special Commission Meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction held on 18-21 January 1993, p. 4) 68. In addition, according to the Explanatory Report, the Convention is engaged only by issues relating to breaches of custody rights. It does not in principle concern situations arising from breaches of access rights, in particular where the child is taken abroad by its custodian (Explanatory Report, paragraph 65). 4. Domestic case-law concerning the concept of “rights of custody” within the meaning of the Hague Convention 69. The Hague Convention provides no enforcement mechanism or oversight body to ensure that Contracting States implement it. Therefore, it is possible that the case-law of domestic courts relating to the Hague Convention may differ from one Contracting State to another. In practice, there is a lack of consistency in the interpretation of the various judicial bodies as regards the Hague Convention’s distinction between custody rights and access rights, more specifically where they have to decide whether to grant the remedy of return to non-custodial parents who hold access rights. 70. However, there seems to be a trend towards a wide interpretation of wrongful removal or retention, thus broadening the scope of custody rights to allow types of parenting other than the holding of custody rights to benefit from the Convention’s protection. 71. In the case of C. v. C. (England and Wales Court of Appeal; [1989] 1 WLR 654, 657-58), for example, a custodial parent had removed a child from Australia in breach of a restraining order (also called a ne exeat order, prohibiting a child’s removal from a given geographical area). In that case the child could not be removed without the consent of the non-custodial parent. The court found that the Convention’s judicial remedy of return applied. They justified this reasoning by equating the ability to grant or withhold consent for relocation with a custodial “right to determine the child’s place of residence”. 72. The Family Court of Australia took the same approach in the case of José García Resina, where a father lodged an application under the Convention for the return of his children after they had been taken to France by their maternal grandparents ( José García Resina and Muriel Ghislaine Henriette Resina, [1991] FamCA 33). The Australian court considered both a custody order, which gave the father “reasonable access” to the youngest child, and an injunction restraining both the mother and the father from removing the children from Australia. It ultimately ordered the return of the children pursuant to the Convention because their removal had violated the father’s custody rights that had been created by the restraining order. Similarly, the Israeli Supreme Court found that a custody agreement between parents contained a mutual consultation clause for major changes and unusual events, which implicitly included decisions on the residence of the child ( Foxman v. Foxman, Israeli Supreme Court, 1992). The court thus considered that the father had rights of custody within the meaning of the Convention. 73. It appears that other national courts, in particular in common-law countries, have largely cited the C. v. C. case and have followed its general holding that if the custodial parent needs permission from the court or the non-custodial parent before removing the child from a country, a removal without such permission may be regarded as “wrongful” within the meaning of Article 3 of the Hague Convention (see Re F, England and Wales Court of Appeal, [1995] 3 WLR 339, where the father had rights of custody, even though the mother had a court order giving her temporary “care and control” and there was no order barring the child’s removal). 74. However, the practice of domestic courts is not homogeneous. Thus, for example, the United States Court of Appeals found that access rights coupled with a ne exeat clause did not constitute “rights of custody” within the meaning of the Hague Convention ( Croll v. Croll, 229 F.3d 133, 143, Second Circuit, 2000). C. Domestic legislation relevant to the implementation at national level of the above-mentioned Conventions 1. New Swiss Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults 75. On 21 December 2007 the Swiss Federal Parliament enacted the “Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults”, for the purpose of clarifying certain notions, especially in relation to the application of the Hague Convention of 1980. The Act came into force on 1 July 2009. The sections of the Act referred to by the applicants read as follows: Section 5: Return and interest of the child “The return of a child places him or her in an intolerable situation, within the meaning of Article 13, sub-paragraph (b), of the Hague Convention, in particular where the following conditions are met: (a) placement with the parent who lodged the application is manifestly not in the child’s interests; (b) the abducting parent is not, given the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction, or this cannot reasonably be required of that parent; and (c) placement in the care of a third party is manifestly not in the child’s interests.” Section 6: Protective measures “The court dealing with the application for the return of the child shall decide, as required, on the child’s personal relations with his or her parents and order the measures necessary to ensure his or her protection. Where the application for return has been received by the Central Authority, the competent court may, at the request of the Central Authority or any of the parties, order the appointment of a representative or a guardian for the child, or take other protective measures even if the application for return is not yet pending before the court.” 76. In connection with the federal decree concerning this Act, the Federal Council submitted to Parliament a “dispatch” ( Feuille Fédérale 2007, pp. 2433-682), of which the relevant passages read as follows: “ 6.4 Return and interests of the child (section 5) In order to ensure an application of the Hague Convention of 1980 that is better adapted to the interests of the child, it is necessary for the legislature to specify the various situations in which the return of the child can no longer be taken into consideration because it would place him or her in a manifestly intolerable situation. The rule in section 5 is not supposed to supersede the provision of Article 13, sub-paragraph (b), of the Hague Convention of 1980. The term ‘in particular’ means that the list merely enumerates a few situations which – although essential – do not preclude reliance on the clause provided for in the Convention. Firstly, sub-paragraph (a) refers to the situations in which the child’s accommodation by the parent who requested the return is manifestly not in the child’s interests. If that is not so, in particular where the parent who lodged the application has an exclusive right of custody or is the only one who could be granted such responsibility, there will not, in principle, be any cause for fear that the child will be placed in an intolerable situation on his or her return and therefore there is no reason why the return should be refused. This will not be the case where it appears obvious to the court that the party lodging the application would not be able to take care of the child. Sub-paragraph (b) governs cases in which the appropriateness of the child’s return can be assessed only from the standpoint of his or her relationship with the abducting parent. Where the child’s accommodation by the parent who requested the return is manifestly not to be taken into consideration, the problem of his or her return to the State of origin will be addressed differently, depending on whether the person who wrongfully removed or retained the child (usually the mother) is or is not in a position to return to that State. If the said parent is not able to do so because, for example, he or she faces a prison sentence that would lead to separation from the child or because the parent has very close family ties in Switzerland (for example following remarriage or on account of a situation of hardship suffered by another family member living in Switzerland), the child’s psychological and physical stability may be at stake, because the child would, after the return, be obliged to live apart from his or her parents. Such separation is tolerable only in exceptional cases and must constitute an ultima ratio. Second type of situation: where, given all the circumstances, it cannot reasonably be required of the abducting parent that he or she take care of the child in the State where the child had his or her habitual residence immediately before the abduction (section 5(b)). It is not sufficient for the parent who wrongfully removed or retained the child to state that he or she refuses to return to that State. He or she would also have to be in a situation of hardship such that he or she could not reasonably be expected to return to his or her place of prior residence to await there, with the child, the court’s final decision on the granting of custody. In that context, we have in mind especially those cases in which the mother cannot be guaranteed safe or affordable accommodation outside the home of her former partner. One must further take into account those cases in which the parent who has requested the return of the child will not resume the exercise of the right of custody and will not obtain it by court order, whilst the abducting parent is clearly the child’s primary carer. In such a case the child would only be taken to the State of origin to await the final attribution of the right of custody to the abducting parent, before coming back to Switzerland again with that parent. Such coming and going would ultimately only have served the purpose of bringing the case before the authorities of the former State of residence. Such a solution would be inadmissible according to the spirit and purpose of the Hague Convention, because it would be incompatible with the child’s interests. But the situation would have to be beyond doubt for the Swiss court dealing with the request for return. Unless the circumstances can be established clearly, the court will have to rule that the return to the parent’s State of origin is bearable and that, accordingly, the child will not be placed in an intolerable situation such as to justify a decision denying the return under Article 13, sub-paragraph (b), of the Hague Convention. Sub-paragraph (c) refers to placement with third parties. If the child’s return were to lead to separation from the parent who wrongfully removed or retained the child (because return is impossible for that parent or cannot reasonably be required of him or her), it could only be carried out in appropriate conditions if the child were placed with a third party in the State of origin. However, such a solution should only be sought, with the resulting possibility for the competent Swiss court to order the child’s return, if placement with a third party is not manifestly contrary to the child’s interests. That third condition can be satisfied only if separation from the parent remaining in Switzerland is bearable for the child – which may be the case where he or she has an antagonistic relationship with that parent – and if the foster family receiving the child can provide proper guarantees as to the protection and normal upbringing of the child. In any event, such a situation should only be envisaged as an ultima ratio. It must further be noted that, for the return to be compatible with the child’s interests and, in particular, for the conditions of Article 13 of the Hague Convention to be fulfilled, the authority ruling on the matter has to be apprised of the situation prevailing in the State of origin and of the legal provisions in force there. Thus, the parties, and in particular the parents, have a duty to participate in the establishment of the facts. The hearing of the parties in person by the court (section 9(1) and (2)) is therefore of great importance. The new provisions concerning the procedure and the cooperation with the competent authorities of the State of origin also play an essential role. The court must be able to verify whether, and in what manner, it is possible to ensure the child’s return (section 10(2)). If it does not succeed in that task, or succeeds only partially, it will not be in a position to weigh up all the consequences that a return might have for the child. The same will be true if it does not succeed in obtaining from the local authorities any reliable assurances as to the conditions of the child’s reception and protection, in particular when there is some doubt about the requesting parent’s capacity to look after the child properly. In this respect, section 10 is thus directly related to the practical application of section 5.” 2. Concepts of “custody” and “guardianship” in Israeli law 77. The concept of guardianship is defined in Chapter 2 of the Capacity and Guardianship Law 1962. The term custody is not defined as such but is mentioned. 78. Section 14 of that Law provides that “[p]arents shall be the natural guardians of their minor children”. In Israel, parents, whether married, divorced or unmarried, are joint and equal guardians of their children. The term “guardianship” may be regarded as equivalent to “parental authority” in other jurisdictions. 79. Guardianship is an automatic right which both parents acquire and can only be restricted or removed in exceptional circumstances (where a Magistrate’s Court adopts one of the measures mentioned in section 3(3) or (4) of the Youth (Care and Supervision) Law). This rule is set out in section 27 of the Law. 80. Section 15 defines and describes the role of parents in Israeli law and outlines what parental guardianship entails in the following terms: “The guardianship of the parents shall include the duty and the right to take care of the needs of the minor, including his education, studies, vocational and occupational training and work and to preserve, manage and develop his property; it shall also include the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf.” 81. Section 17 sets the standard of parents’ duties. It states that in exercising their guardianship, “parents [must] act in the best interests of the minor in such manner as devoted parents would act in the circumstances”. 82. There is a general presumption that parents should cooperate in taking decisions relating to their guardianship (section 18). However, where no agreement is reached, they may refer to the court to decide the issue (section 19). 83. Section 24 provides that, when parents live apart, they may reach an agreement as to: who is going to have guardianship of the minor, wholly or in part; who is going to have custody of the minor; and what rights the other parent is going to have, in particular as regards contact with the child. Such an agreement is subject to the approval of the court. 84. Under section 25, if the parents cannot reach such an agreement these issues may be determined by the court having regard to the best interests of the child. 85. Section 25 further creates a presumption of custody in favour of the mother for children under six years old unless there are special reasons for directing otherwise. 86. Accordingly both parents share joint decision-making authority regarding their child’s place of residence. One parent cannot remove the child from Israel without the permission of the other parent or of a court. If one parent wishes to remove the child from Israel without the other parent’s consent, then the parent wishing to leave must apply to the Israeli courts for a relocation order and an order for custody of the child. THE LAW I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER 87. In their memorial before the Grand Chamber the applicants complained of a violation of their right to respect for their family life within the meaning of Article 8 of the Convention. In addition, they argued that the enforcement of the second applicant’s return without the first applicant would constitute inhuman treatment prohibited by Article 3 and a violation of Article 9, since the second applicant’s father could be expected to subject him to the precepts of the “Lubavitch” community, which the applicants described as “ultra-orthodox” and from which the first applicant wished to distance her child permanently. 88. The Court notes, however, that the Chamber declared inadmissible the complaints under Articles 3 and 9 of the Convention for failure to exhaust domestic remedies. Accordingly, the Grand Chamber cannot examine them (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001 ‑ VII). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 89. The applicants alleged that there had been a violation of their right to respect for their family life under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1. Applicability of Article 8 90. The Court refers to the following findings in the Chamber judgment: “79. Turning now to the circumstances of the present case, the Court first observes that, for the applicants, the possibility of continuing to live together is a fundamental consideration which clearly falls within the scope of their family life within the meaning of Article 8 of the Convention, and that Article is therefore applicable (see, among many other authorities, Maire v. Portugal, no. 48206/99, § 68, ECHR 2003 ‑ VII). ... 81. Moreover, it is not in dispute that the Federal Court’s order for the child’s return constituted for the two applicants an ‘interference’ within the meaning of the second paragraph of Article 8 of the Convention.” 91. The Grand Chamber subscribes to those findings, which are not in dispute between the parties. It must therefore be ascertained whether the impugned interference met the requirements of the second paragraph of Article 8, that is to say whether it was “in accordance with the law”, pursued one or more legitimate aims and was “necessary in a democratic society” in order to fulfil those aims. 2. Justification for the interference (a) Legal basis (i) The Chamber judgment 92. The Chamber found as follows (see paragraph 80 of the judgment): “The Court notes that under the Hague Convention the removal or retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, alone or jointly, under the law of the State in which the child was habitually resident immediately before the removal or retention (Article 3, first paragraph, sub-paragraph (a)). The notion of ‘rights of custody’ within the meaning of the Hague Convention includes rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence (Article 5, sub-paragraph (a)). The Court takes the view that in the present case the child’s removal to Switzerland was wrongful, since, in accordance with the decision of 27 June 2004, the father exercised ‘guardianship’ jointly with the mother and in the Israeli legal system this included the right to determine the child’s place of residence. Moreover, the removal of Noam rendered illusory, in practice, the right of access (Article 4, first paragraph) that had been granted to the father by the decision of 17 November 2004. Accordingly, it was unquestionably wrongful within the meaning of the Hague Convention.” (ii) The parties’ submissions (α) The applicants 93. The applicants took the view that the present case did not concern an international child abduction under the Hague Convention. They first argued that Noam’s removal from Israel by his mother had not been wrongful within the meaning of that Convention. They submitted that the Government had committed a manifest error of judgment in indicating that the decision given on 17 November 2004 by the Israeli court had granted “temporary custody” to the mother. 94. The applicants considered the child’s removal to Switzerland to have been lawful, for the following reasons in particular: the father’s conduct and death threats against the first applicant had warranted a special measure of protection in her favour that had been granted on 12 January 2005; the father, on account of the religious fanaticism that he displayed publicly, wanted unilaterally to impose on his infant son an ultra-orthodox and radical religious education and lifestyle without consideration for the child’s interest or for the disagreement expressed by the mother; an arrest warrant had been issued against the father on 20 March 2005 for defaulting on maintenance payments and he had had his right of access restricted and placed under the supervision of the social services because of his irresponsible conduct; the criminal complaints filed against him in Israel had been ineffective; lastly, the child’s removal had been lawful by virtue of Israeli Law no. 5722-1962 (“Capacity and Guardianship Law”), of which section 25 provided in fine that in the event of disagreement between the parents, children up to the age of six would remain with their mother, and of which section 18 in fine expressly authorised either parent to act alone in a matter admitting of no delay, which would especially be the case where the parent had custody of the child. (β) The Government 95. The Government took the view that the second applicant’s removal had been wrongful. Pointing out that the Explanatory Report of April 1981 on the Hague Convention contrasted “rights of custody” with simple access rights, they observed that “[a] questionable result would have been attained had the application of the Convention, by granting the same degree of protection to custody and access rights, led ultimately to the substitution of the holders of one type of right by those who held the other”. Thus, the question whether joint custody existed had to be determined in each particular case and in the light of the law in force in the country of the child’s habitual residence. 96. In the Government’s submission, it was clear that, by reference to the definition in Article 5, sub-paragraph (a), of the Hague Convention, Israeli guardianship covered “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence” within the meaning of that provision. That interpretation was confirmed by the fact that Article 3 of the Hague Convention expressly mentioned cases where, as in the present case, custody was exercised jointly. It could clearly be seen from the Explanatory Report that this particularly referred to cases of joint custody after the parents had separated or divorced. In this connection the Government stressed that it was expressly envisaged in the Hague Convention that the removal of a child against the wishes of a parent having joint custody, but with whom the child did not live, would be unlawful. 97. The view that joint guardianship was irrelevant as the mother alone had custody, as expressed by Judge Spielmann in his dissenting opinion (appended to the Chamber judgment), was not sufficiently substantiated by the passages of the Explanatory Report cited in that opinion. As regards Judge Spielmann’s observation that the Explanatory Report appeared to make a distinction between custody rights and parental authority in the context of children entrusted to an institution, the Government observed that it was apparent from the passage in question that in the event of compulsory placement of the child, custody for the purposes of the Hague Convention would belong to the relevant body. In the Government’s submission, as that body was then responsible for taking care of the child’s needs and, in particular, for determining its place of residence, that passage also confirmed that custody within the meaning of the Hague Convention corresponded to guardianship and not to custody in Israeli law. 98. In view of the foregoing, the Government submitted that the Hague Convention was applicable and that the second applicant’s removal from Israel had to be regarded as wrongful within the meaning of that Convention. All the authorities dealing with the matter, whether the Israeli and Swiss authorities or the Chamber of the Court, had moreover shared that opinion. (iii) The Court’s assessment 99. The Court notes that the Federal Court’s judgment of 16 August 2007 was based mainly on the Hague Convention, which has been incorporated into Swiss law. However, the applicants disputed the applicability of that instrument in the present case because, in their view, Noam’s removal from Israel by his mother was not wrongful. The Court must therefore examine whether the Hague Convention constituted a sufficient legal basis on which to order the child’s return to Israel. 100. The Court reiterates at the outset that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This also applies where domestic law refers to rules of general international law or to international agreements. The Court’s role is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I, and Korbely v. Hungary [GC], no. 9174/02, § 72, ECHR 2008). 101. In the present case, the second applicant’s removal was examined by three domestic courts which all concluded, in duly reasoned decisions, that it was wrongful within the meaning of the Hague Convention. That assessment was confirmed by the Chamber for two main reasons: firstly, even though the first applicant had custody, at least on a provisional basis, the father had guardianship jointly with the mother under Israeli law; secondly, Noam’s removal rendered illusory, in practice, the right of access that had been granted to the father. 102. It should also be observed that the concept of custody rights, within the meaning of the Hague Convention, has an autonomous meaning (see paragraphs 66-67 above) since it has to be applied to all the States Parties to that Convention and may be defined differently in their various legal systems. In the present case, it appears that in Israeli law the institution of guardianship is comparable to custody rights under Article 5, first paragraph, (a) of the Hague Convention, which refers in its definition to the right “to determine the child’s place of residence”. Such right is also included in guardianship. In the present case that right was breached because it was to be exercised jointly by both parents; moreover, there is no indication that it was not exercised effectively until the child’s removal, as required by Article 3, first paragraph, (b) of that Convention. 103. In addition, it is noteworthy that the mother took the child to Switzerland in breach of an order prohibiting his removal from Israel that had been made by the competent Israeli court at her own request. It appears that courts in certain States take the view that breaches of such orders give rise to the application of the Hague Convention (see paragraphs 69-74 above). 104. Lastly, even though in principle the Hague Convention applies only to breaches of custody rights, it can be seen from its Preamble, Article 1 (b) and Article 21 (see paragraph 57 above) that it also seeks to protect access rights. There is no doubt in the present case that the second applicant’s removal hindered the possible exercise by the father of the right of access that he had been granted. 105. In view of the foregoing, the Court finds, like the Chamber, that the first applicant removed her child from Israel to Switzerland “wrongfully”, within the meaning of Article 3 of the Hague Convention. She thus committed an abduction for the purposes of that Convention, which is therefore applicable in the present case. Accordingly, in ordering the child’s return under Article 12 of the Hague Convention, the impugned measure had a sufficient legal basis. (b) Legitimate aim 106. The Court shares the Chamber’s opinion that the decision by the Federal Court to return the child pursued the legitimate aim of protecting the rights and freedoms of Noam and his father, as the parties have moreover not denied before the Grand Chamber. (c) Necessity of the interference in a democratic society (i) The Chamber judgment 107. In the Chamber’s opinion, the interference that would be constituted by Noam’s return would not be disproportionate. In this connection the Chamber noted the many measures that had been taken by the Israeli authorities in order to protect the applicants when they were still living in that country. A return to Israel could be envisaged for the mother and for the child, given that he was still at a perfectly adaptable age (see the Chamber judgment, §§ 80 and 89). As regards the risk of a criminal sanction against the mother, the Chamber found no reason to doubt the credibility of the assurances given by the Israeli authorities in that connection, having regard in particular to the efforts they had made for the mother and child before their departure for Switzerland (ibid., § 90). The Chamber further emphasised that it was in the “best interests” of every child to grow up in an environment that allowed him or her to maintain regular contact with both parents (ibid., § 91). In addition, there was no evidence to suggest that the first applicant would be unable to influence her son’s religious education or that the Israeli authorities and courts would be unable to prevent the father from sending him to a religious “Heder” school (ibid., § 92). (ii) The parties’ submissions (α) The applicants 108. The applicants submitted that, in the present case, it should be borne in mind that the first applicant had custody of the child whilst the father had a limited right of access, under supervision, on account of conduct that all the judges dealing with this case had unanimously found to be unacceptable. In the applicants’ submission, that circumstance was of the essence, since it clearly distinguished the present case from Bianchi v. Switzerland (no. 7548/04, § 77, 22 June 2006), in which the Court had emphasised that while its role was not to substitute itself for the competent authorities in regulating custody and access issues, it was nevertheless entitled to review under the Convention the decisions that those authorities had taken in the exercise of their power of appreciation. 109. The applicants took the view that the Federal Court’s method was significantly different from that adopted by the first two courts in support of their decisions: while those two courts had refused to place too narrow an interpretation on the provisions of the relevant international instruments, the same could not be said for the Federal Court, which had limited the scope of its analysis by deliberately taking an overtly restrictive position. Whilst the courts below had upheld the objection to the child’s return, highlighting, in particular, the best interests of the child and the grave risk of psychological harm, and also the intolerable situation which they considered the child would face if he were returned to Israel with or without his mother, the Federal Court had quite simply rejected that approach, even though it was supported by an expert’s report, and had declared that the proper solution was in fact to compel the mother, who had custody, to return to Israel with the child, failing which she would be separated from him. However, the first applicant had always declared that she would not return to Israel, not only because of the intolerable situation which had precisely led her to leave that country in June 2005, but also because to do so would mean uprooting herself and her child and would entail problems for her before the Israeli courts. In addition, as she had sole financial responsibility for the child, the first applicant could not reasonably be expected to give up her job in Switzerland. Furthermore, the child and his mother had been fully integrated in the environment and social life of Lausanne for more than four years. 110. In the applicants’ submission, the risk that the mother would be imprisoned if she returned to Israel was established and the civil consequences of separation would be disastrous. They stated that, under Israeli criminal law no. 5737-1977, the mother was liable to very severe criminal sanctions. Contrary to the Federal Court’s finding, she would most certainly face such a sanction on her return to Israel and this would undoubtedly constitute, in the applicants’ view and as the medical expert had emphasised in his report of 16 April 2007, a major psychological trauma and an intolerable situation for the child, who would in practice experience an immediate and distressing separation from his mother. The applicants stated that the consequences of the mother’s imprisonment in Israel would also be disastrous in civil terms for the future of mother and child. They alleged that in such a case, after being separated from his mother when she was sent to prison, Noam would not be entrusted to his father on account of the decisions previously issued against him, his instability and his lack of resources. They pointed out at this stage that the father had remarried on 1 November 2005 but had divorced his new wife, G., on 29 March 2006 while she was pregnant. He had married a third time and proceedings had again been brought against him in 2008, this time by his second wife, for defaulting on maintenance payments in respect of their daughter. 111. The applicants also argued that neither the Israeli authorities nor the respondent Government had given any reliable guarantees that the first applicant would not face criminal sanctions should she return to Israel and that she would not be separated from her child, of whom she had custody. The letter produced by the respondent Government in support of their observations of 15 February 2008 (Annex no. 3 – paragraph 40 above) contained no element capable of precluding with certainty all risk of criminal sanctions against her if she returned to Israel. 112. The applicants also pointed out that in his report of 16 April 2007 Dr B., a medical expert, taking into account the fact that the mother had ruled out her return to Israel owing to the risk of judicial proceedings against her, had concluded that the child’s return without his mother would entail major psychological trauma in the form of extreme separation anxiety and a major risk of severe depression. 113. In the applicants’ submission, the opinion expressed by the Federal Court and by the respondent Government in the present case did not reflect those expressed by the Federal Council, by legal writers, by the Swiss Parliament or by the main organisations which had been consulted prior to the enactment, on 21 December 2007, of the new Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults. 114. The failure to return the child to Israel would not undermine the international protection system established by the Hague Convention but, on the contrary, would uphold it. In the applicants’ submission, whilst the principle of that Convention was to return a wrongfully removed child to the State of his or her habitual residence with the assistance of the Central Authorities designated for that purpose, it nevertheless had to be emphasised that there was an exception to that principle where the return would expose the child to a grave risk of physical or psychological harm and/or to an intolerable situation (Article 13, sub-paragraph (b), of the Hague Convention). The applicants moreover pointed out that nowadays the Hague Convention was no longer the only instrument providing for assessment in proceedings of this type. They emphasised that the Convention on the Rights of the Child made the best interests of the child a primary consideration in all decisions relating to children. Thus they took the view that the Federal Court should not have disregarded the best interests of the child. In assessing those interests it should have ascertained and weighed up specifically and objectively the consequences of the child’s return to Israel, and should have determined and described, before delivering its judgment, the appropriate arrangements that would apply upon the child’s return. 115. As regards the possibility that the parents might agree on the child’s education, such a scenario could not be envisaged in the present case precisely because of the radical position adopted by the father. The applicants pointed out in this connection that at the time of his marriage to the first applicant on 16 October 2001, Mr Shuruk had not yet adopted a radical religious attitude. It was only from the autumn of 2003, shortly after the child’s birth, that the father had, without taking into account the mother’s opinion, chosen to join an ultra-orthodox religious movement, thus completely changing the rules of life adopted by the spouses at the time of their marriage. Moreover, Mr Shuruk had not denied that he belonged to the ultra-orthodox Jewish “Lubavitch” movement, which, in the applicants’ submission, was a “mystical and ascetic movement” of traditional Hasidic Judaism, whose members engaged in zealous proselytising. Nor had Mr Shuruk denied having also sought to impose on his wife and child a radical way of life which, for example, required women to hide their hair and boys to be sent at the age of three to religious “Heder” schools. In this connection, the first applicant explained that she had no intention of cutting her son off from his roots. Since 2006 he had been attending a municipal secular nursery school one day a week and a private State-approved Jewish day-care centre where, in addition to the school curriculum of the Canton of Vaud, he was being taught the basic principles of Judaism. 116. Lastly, the applicants argued that the child’s protection required the authorities of the requested State to have taken all the necessary precautionary measures prior to enforcing the return that had been ordered. They observed that it was apparent in particular from the Government’s observations of 15 February 2008 that the Federal Court’s judgment of 16 August 2007 did not contain any provisions for its enforcement. 117. For these reasons the applicants concluded that the child’s return to Israel would constitute an unjustified interference, in a democratic society, with the exercise of their right to respect for their family life, as protected by Article 8 of the Convention. (β) The Government 118. The Government observed that whilst a return to Israel would cause the first applicant some inconvenience that she might find unsatisfactory, such problems were inherent in the Hague Convention system and could not render its mechanism inoperable. In the Government’s submission it was only where the return entailed violations of human rights that went beyond the interference inherent in the return envisaged by the Hague Convention that such return had to be declared incompatible with the Convention, a situation which, moreover, was envisaged by Article 20 of the Hague Convention. The Government took the view that the exceptions to the child’s return had to be interpreted in a restrictive manner if the Hague Convention was not to become a dead letter. 119. The Government further relied on the Court’s judgment in Maumousseau and Washington v. France (no. 39388/05, 6 December 2007), where it had stated that the aim of the Hague Convention was to prevent the “abducting” parent from succeeding in legitimating, by the passage of time operating in his or her favour, a de facto situation which he or she had created unilaterally. In that case the national authorities had stressed, in particular, that the mother, contrary to what she maintained, could accompany her child to the State in which he had his habitual residence in order to assert her rights there. That factor had been regarded as decisive by the Court, as the mother had unrestricted access to the territory of the State in question and could bring proceedings before the competent courts of that State. 120. In the Government’s opinion, the arguments put forward in the dissenting opinions, and reiterated by the applicants in their referral request, could not call into question the merits of the assessment by the Federal Court and by the Chamber. It could not be inferred, in the context of the Hague Convention, that the fact that the first applicant was socially integrated in Lausanne prevented her from accompanying the second applicant if he returned to Israel. As she had lived in Israel for six years, she must surely have a certain social network there. In that connection, the Government emphasised that, according to the report by the expert Dr B., she had decided to settle in Israel after spending holidays with her family in that country. 121. As regards the risk of criminal sanctions, the Government took the view that nothing new had emerged from the dissenting opinions or from the applicants’ referral request. The Government admitted that it followed from a letter from the Israeli Central Authority, forwarded to the Guardianship Division by the child’s father, that under Israeli criminal law a custodial sentence could be imposed for child abduction. However, guidelines issued by the Israeli State Attorney’s Department provided that when the police were dealing with such a case they would transfer it to the Israeli Central Authority responsible for application of the Hague Convention, which would then make recommendations as to the solution to be applied to the case. In this connection the Government observed that, according to the relevant guidelines, criminal proceedings should be brought only in very exceptional cases. The Israeli Central Authority had indicated that in the present case it would consider directing the Israeli police to close the criminal proceedings if the first applicant proved ready to cooperate with the Israeli authorities and to respect the right of access granted to the father by the Tel Aviv Family Court, and if she did not disappear again with the child (see letter of 30 April 2007 appended to the Government’s observations of 14 August 2009). In this connection the Government took the view that the Hague Convention system was based on mutual confidence between the States Parties to that instrument and that if a State should fail to comply with its assurances, it would run the risk that the other States might not cooperate with it in the fashion envisaged. The Government thus subscribed to the Chamber’s view that no doubt should be cast on the credibility of the assertions in that letter and that the first applicant did not run the risk of incurring criminal sanctions (see Chamber judgment, § 90). 122. The Government further observed that, throughout the domestic proceedings, the first applicant had never adduced the slightest firm evidence relating to the judicial consequences which she would allegedly face in the event of her return. On the contrary, she had asserted at the hearing of 29 August 2006 before the Justice of the Peace that she did not even contemplate returning to Israel and that she did not know what risk she would personally run if she were to return to that country. 123. Lastly, the fact that the second applicant’s father had defaulted on his maintenance obligations was also insufficient to preclude the reasonable expectation that the first applicant would return to Israel. In the Government’s submission, strictly from the viewpoint of the child’s best interests, it would no doubt be preferable for him to grow up having contact with his father, even if the father paid him no maintenance, than to grow up without knowing him. 124. In response to the fears expressed in the dissenting opinions and reiterated by the applicants in their referral request, namely, firstly, that any attempt on the first applicant’s part to influence her son’s religious education would in all likelihood be unsuccessful and, secondly, that the Chamber had placed confidence, in an abstract fashion, in a legal system whose principles in family-law matters differed, sometimes significantly, from those that were applied in Europe, the Government referred to the Explanatory Report on the Hague Convention, according to which, when the Convention was being drafted, one of the concerns taken into account was to avoid the risk that decisions given pursuant to that instrument might express “particular cultural, social etc. attitudes which themselves derive[d] from a given national community” and thus, basically, impose “their own subjective value judgments upon the national community from which the child ha[d] recently been snatched” (paragraph 22 of the Report). Furthermore, in the event of disagreement about a child’s religious education, the court granting parental authority would decide according to the best interests of the child. Independently of whether the Israeli courts dealing with the case were religious or secular courts, it was noteworthy that they had followed the recommendations of the social worker responsible for the case and had imposed many restrictions on the second applicant’s father, even though his conduct was linked with his religious ideas. There was thus no reason to conclude that those courts, on account of the “religious context of the case”, would not act in an appropriate manner. 125. The Government further observed that before the applicants had left Israel their family situation had been closely monitored by the Tel Aviv social services and the Tel Aviv Family Court, which had, in particular, prohibited the child’s father from approaching the first applicant’s flat and the child’s nursery school, from disturbing or harassing the first applicant in any way whatsoever, including by mental harassment, and in any place, from using the flat in which the first applicant lived or from carrying or possessing a weapon. The Government pointed out that it was not disputed that the father had complied with those measures (see record of the hearing of 29 August 2006 before the Justice of the Peace). 126. It was also apparent from a letter from the Israeli Central Authority to the Cantonal Court that the Israeli Prevention of Family Violence Law of 1991 made provision for protective measures in the event of allegations of violence within the family (see the letter of 12 March 2007 in Annex 6 to the Government’s observations of 14 August 2009). The Israeli authorities’ conduct and the measures taken before the first applicant’s departure with her son showed that the provisions of that law were applied effectively. In those circumstances, and in the light of the measures taken by the Israeli authorities, the Government submitted that the conduct of the second applicant’s father did not constitute a risk within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. 127. Lastly, the applicants’ extended stay in Switzerland could not constitute an obstacle to their return pursuant to the Hague Convention. The Government, relying in this connection on the Chamber judgment, took the view in particular that, given the second applicant’s young age, he would not be exposed to any risk within the meaning of the relevant provisions. 128. In so far as the applicants had also criticised the judgment of the Federal Court of 16 August 2007 for not containing any provisions for its enforcement, the Government observed that the enforcement of judgments of the Federal Court was a matter for the cantonal authorities. The Government explained that the competent authority in the present case was the Justice of the Peace of the District of Lausanne, which had delivered the decision at first instance. On 20 August 2007 the child’s father had applied to that authority through his counsel to appoint an ad hoc guardian for the child with the task of arranging Noam’s departure in accordance with the decision of the Federal Court. Following this Court’s decision of 27 September 2007 to indicate a stay of execution in the present case, the father had withdrawn his request on 1 October 2007. These were the reasons why, for the time being, the arrangements for the child’s return had not yet been decided. The Government further observed that the Federal Court, in its judgment of 16 August 2007, had ordered the child’s return on the assumption that the mother could be expected to accompany him. Moreover, primary responsibility for arranging the return lay with the first applicant, who had created the present dispute in the first place by abducting her son. The Government submitted, however, that if the first applicant had expressed actual fears linked with specific aspects of a return to Israel, the competent authority could have examined measures capable of providing a remedy. Moreover, the arrangements for the child’s return had not been examined further by the Swiss authorities on account of the interim measures indicated by the Court. 129. The Government expressed the view that, after a stay of more than four years in the host country, it was clearly no longer possible to speak of a “prompt return” within the meaning of the Hague Convention. Moreover, whilst it was true that, at the time of the Federal Court’s judgment, it was justifiable to disregard the passage of time, that was no longer the case at present. In other words, the Government’s submission is that the authorities competent for the enforcement of the return have the right and the duty to examine the conditions in which the return could be implemented without breaching the applicants’ rights. 130. Having regard to the foregoing, the Government were satisfied that the conditions of Article 13, sub-paragraph (b), of the Hague Convention had manifestly not been met in the present case, and that the balancing of the interests involved, even if it entailed difficult consequences for the first applicant, was consistent with that provision and complied with the requirements of Article 8 § 2 of the Convention. (iii) The Court’s assessment (α) General principles 131. The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 1969, of “any relevant rules of international law applicable in the relations between the parties”, and in particular the rules concerning the international protection of human rights (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II; and Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI). 132. In matters of international child abduction, the obligations that Article 8 imposes on the Contracting States must therefore be interpreted taking into account, in particular, the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (see Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, ECHR 2003-V, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, ECHR 2000-I) and the Convention on the Rights of the Child of 20 November 1989 (see Maire, cited above, § 72). The Court has, for example, espoused the provisions of the Hague Convention on a number of occasions, in particular Article 11 when examining whether the judicial or administrative authorities, on receiving an application for the return of a child, had acted expeditiously and diligently, as any inaction lasting more than six weeks could give rise to a request for a statement of reasons for the delay (see, for the text of that provision, paragraph 57 above, and for examples of application, Carlson v. Switzerland, no. 49492/06, § 76, 6 November 2008; Ignaccolo-Zenide, cited above, § 102; Monory v. Romania and Hungary, no. 71099/01, § 82, 5 April 2005; and Bianchi, cited above, § 94). 133. However, the Court must also bear in mind the special character of the Convention as an instrument of European public order ( ordre public ) for the protection of individual human beings and its own mission, as set out in Article 19, “to ensure the observance of the engagements undertaken by the High Contracting Parties” to the Convention (see, among other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 93, Series A no. 310). For that reason the Court is competent to review the procedure followed by domestic courts, in particular to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and especially those of Article 8 (see, to that effect, Bianchi, cited above, § 92, and Carlson, cited above, § 73). 134. In this area the decisive issue is whether a fair balance 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), bearing in mind, however, that the child’s best interests must be the primary consideration (see, to that effect, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX), as is indeed apparent from the Preamble to the Hague Convention, which provides that “the interests of children are of paramount importance in matters relating to their custody”. The child’s best interests may, depending on their nature and seriousness, override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003 ‑ VIII). The parents’ interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (ibid.; see also Haase v. Germany, no. 11057/02, § 89, ECHR 2004 ‑ III, and Kutzner v. Germany, no. 46544/99, § 58, ECHR 2002 ‑ I, and the numerous authorities cited therein). 135. The Court notes that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see the numerous references in paragraphs 49-56 above, and in particular Article 24 § 2 of the European Union’s Charter of Fundamental Rights). As indicated, for example, in the Charter, “[e]very child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”. 136. The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see Gnahoré, cited above, § 59). On the other hand, it is clearly also in the child’s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see, among many other authorities, Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000-VIII, and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006). 137. The same philosophy is inherent in the Hague Convention, which in principle requires the prompt return of the abducted child unless there is a grave risk that the child’s return would expose it to physical or psychological harm or otherwise place it in an intolerable situation (Article 13, sub-paragraph (b)). In other words, the concept of the child’s best interests is also an underlying principle of the Hague Convention. Moreover, certain domestic courts have expressly incorporated that concept into the application of the term “grave risk” under Article 13, sub-paragraph (b), of that Convention (see paragraphs 58-64 above). In view of the foregoing, the Court takes the view that Article 13 should be interpreted in conformity with the Convention. 138. It follows from Article 8 that a child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child’s best interests, 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 (see the UNHCR Guidelines, paragraph 52 above). For that reason, those best interests must be assessed in each individual case. That task is primarily one for the domestic authorities, which often have the benefit of direct contact with the persons concerned. To that end they enjoy a certain margin of appreciation, which remains subject, however, to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A, and Kutzner, cited above, §§ 65-66; see also Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 ‑ IV; Bianchi, cited above, § 92; and Carlson, cited above, § 69). 139. In addition, the Court must ensure that the decision-making process leading to the adoption of the impugned measures by the domestic court was fair and allowed those concerned to present their case fully (see Tiemann, cited above, and Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005 ‑ XIII). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Maumousseau and Washington, cited above, § 74). 140. The Court has already had occasion to examine the question whether the conditions of enforcement of a child’s return were compatible with Article 8 of the Convention. It defined the obligations of States in such matters in Maumousseau and Washington (cited above, § 83) as follows: “The Court points out that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. As to the State’s obligation to take positive measures, Article 8 includes the right of a parent – in this case the father – to the taking of measures with a view to his or her being reunited with his or her child and an obligation on the national authorities to take such action (see, for example, Ignaccolo-Zenide, cited above, § 94). However, this obligation is not absolute, since the reunion of a parent with his or her child may not be able to take place immediately and may require preparation. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and cooperation of all concerned are always important ingredients. In addition, when difficulties appear, mainly as a result of a refusal by the parent with whom the child lives to comply with the decision ordering the child’s prompt return, the appropriate authorities should then impose adequate sanctions in respect of this lack of cooperation and, whilst coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the child lives (see Maire, cited above, § 76). Lastly, in this kind of case, the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the award of parental responsibility, including the enforcement of the final decision, require urgent handling as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live. The Hague Convention recognises this fact because it provides for a range of measures to ensure the prompt return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously to ensure the return of children and any failure to act for more than six weeks may give rise to a request for explanations (see Maire, cited above, § 74).” (β) Application of those principles to the present case 141. It is not the Court’s task to take the place of the competent authorities in examining whether there would be a grave risk that the child would be exposed to psychological harm, within the meaning of Article 13 of the Hague Convention, if he returned to Israel. However, the Court is competent to ascertain whether the domestic courts, in applying and interpreting the provisions of that Convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests. 142. The Court notes that the domestic courts hearing the case were not unanimous as to the appropriate outcome. On 29 August 2006 the Lausanne District Justice of the Peace dismissed the father’s application for the child’s return, finding that Article 13, sub-paragraph (b), of the Hague Convention was to be applied in the case (see paragraph 36 above). On 22 May 2007 that decision was confirmed in substance by the Guardianship Division of the Cantonal Court of the Canton of Vaud (see paragraph 41 above). However, on 16 August 2007, the Federal Court allowed the father’s application and ordered Noam’s return. In that court’s opinion, the judgment of the Cantonal Court had failed to provide any evidence of a grave risk of harm, or of any intolerable situation for the child, in the eventuality – an acceptable one for the Federal Court – of the mother’s return with him to Israel (see paragraph 44 above). Lastly, in a provisional-measures order of 29 June 2009 the President of the Lausanne District Court decided that Noam should live at his mother’s address in Lausanne, suspended the father’s right of access in respect of his son and granted exclusive parental authority to the mother. He observed in particular that neither the father nor his lawyer had ever appeared at hearings before that court and thus found that the father had lost interest in the case (see paragraph 47 above). 143. Moreover, a number of experts’ reports concluded that there would be a risk for the child in the event of his return to Israel. In the first such report, delivered on 16 April 2007 by Dr B., it was stated that the child’s return to Israel with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return, in particular the conditions awaiting the mother and their possible repercussions for the child. As to the child’s return without his mother, that would also expose him to a risk of major psychological harm (see paragraph 37 above). The second report, drafted on 23 February 2009 by Dr M.-A., concludes that Noam’s abrupt return to Israel without his mother would constitute a significant trauma and a serious psychological disturbance for the child (see paragraph 46 above). 144. It would thus seem that in the view of the domestic courts and experts, Noam’s return could only be envisaged with his mother, in any event. Even the Federal Court, the only domestic court to have ordered the child’s return, based its decision on the consideration that as there were no grounds objectively justifying the mother’s refusal to return to Israel, she could reasonably be expected to return to that country with her child. It must therefore be determined whether this conclusion is compatible with Article 8, that is to say whether the forced return of the child accompanied by his mother, even though she seems to have ruled out this possibility, would represent a proportionate interference with the right of each of the applicants to respect for their family life. 145. Even though doubts in this respect may appear justified, the Court is prepared to accept that in the present case the measure in question remains within the margin of appreciation afforded to national authorities in such matters. However, in order to assess whether Article 8 has been complied with, it is also necessary to take into account the developments that have occurred since the Federal Court’s judgment ordering the child’s return (see, mutatis mutandis, Sylvester v. Austria, nos. 36812/97 and 40104/98, 24 April 2003). The Court must therefore place itself at the time of the enforcement of the impugned measure (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 91, ECHR 2008). If it is enforced a certain time after the child’s abduction, that may undermine, in particular, the pertinence of the Hague Convention in such a situation, it being essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis. Moreover, whilst under Article 12, second paragraph, of the Hague Convention, a judicial or administrative authority before which the case is brought after the one-year period provided for in the first paragraph must order the child’s return, this is not so if it is demonstrated that the child is now settled in his or her new environment (see, to that effect, Koons v. Italy, no. 68183/01, §§ 51 et seq., 30 September 2008). 146. The Court takes the view that guidance on this point may be found, mutatis mutandis, in its case-law on the expulsion of aliens (see Maslov, cited above, § 71, and Emre v. Switzerland, no. 42034/04, § 68, 22 May 2008), according to which, in order to assess the proportionality of an expulsion measure concerning a child who has settled in the host country, it is necessary to take into account the child’s best interests and well-being, and in particular the seriousness of the difficulties which he or she is likely to encounter in the country of destination and the solidity of social, cultural and family ties both with the host country and with the country of destination. The seriousness of any difficulties which may be encountered in the destination country by the family members who would be accompanying the deportee must also be taken into account (see Üner v. the Netherlands [GC], no. 46410/99, § 57, ECHR 2006-XII). 147. As regards Noam, the Court notes that he has Swiss nationality and that he arrived in the country in June 2005 at the age of two. He has been living there continuously ever since. In the applicants’ submission, he has settled well and in 2006 started attending a municipal secular day nursery and a State-approved private Jewish day nursery. He now goes to school in Switzerland and speaks French (see the provisional-measures order of 29 June 2009, paragraph 47 above). Even though he is at an age where he still has a certain capacity for adaptation, the fact of being uprooted again from his habitual environment would probably have serious consequences for him, especially if he returns on his own, as indicated in the medical reports. His return to Israel cannot therefore be regarded as beneficial. 148. Accordingly, the significant disturbance that the second applicant’s forced return is likely to cause in his mind must be weighed against any benefit that he may gain from it. In this connection it is noteworthy, as the District Court observed, that restrictions had been imposed by the Israeli courts, even before the abduction, on the father’s right of access, authorising him to see his child only twice a week under the supervision of the social services at a contact centre in Tel Aviv (see paragraph 47 above). Moreover, the applicants submitted, without being contradicted by the Government, that Noam’s father had remarried on 1 November 2005 and had divorced only a few months later, while his new wife was pregnant. He had then married for a third time. New proceedings had been brought against him in 2008, this time by his second wife, for failure to pay maintenance in respect of his daughter. The Court doubts that such circumstances, assuming they are established, would be conducive to the child’s well-being and development. 149. As to the problems that the mother’s return would entail for her, she could be exposed to a risk of criminal sanctions, the extent of which, however, remains to be determined. Before the Court the applicants referred to the letter from the Israeli Central Authority of 30 April 2007, which showed that the possibility of the first applicant not being prosecuted by the Israeli authorities would depend on a number of conditions relating to her conduct (see paragraph 40 above). In those circumstances, such criminal proceedings, which could possibly entail a prison sentence, cannot be ruled out entirely (contrast Paradis and Others v. Germany (dec.), no. 4783/03, 15 May 2003). It is clear that such a scenario would not be in the best interests of the child, the first applicant probably being the only person to whom he relates. 150. The mother’s refusal to return to Israel does not therefore appear totally unjustified. Having Swiss nationality, she is entitled to remain in Switzerland. Even supposing that she agreed to return to Israel, there would be an issue as to who would take care of the child in the event of criminal proceedings against her and of her subsequent imprisonment. The father’s capacity to do so may be called into question, in view of his past conduct and limited financial resources. He has never lived alone with the child and has not seen him since the child’s departure. 151. In conclusion, and in the light of all the foregoing considerations, particularly the subsequent developments in the applicants’ situation, as indicated in particular in the provisional-measures order of 29 June 2009, the Court is not convinced that it would be in the child’s best interests for him to return to Israel. As to the mother, she would sustain a disproportionate interference with her right to respect for her family life if she were forced to return with her son to Israel. Consequently, there would be a violation of Article 8 of the Convention in respect of both applicants if the decision ordering the second applicant’s return to Israel were to be enforced. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 152. The Chamber found that the complaint under Article 6 § 1 of the Convention had to be regarded as constituting one of the essential points of the complaint under Article 8 and that it was not necessary to examine this allegation separately (see the Chamber judgment, § 104). 153. The Grand Chamber considers it appropriate to confirm that finding and observes, moreover, that it has not been disputed before it by the parties. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 154. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 155. The applicants did not submit any claim in respect of pecuniary damage. They took the view that any finding of a violation of Article 8 would provide sufficient redress for the non-pecuniary damage that they had sustained. 156. The Court shares the applicants’ opinion and finds that no award should be made in respect of any damage. B. Costs and expenses 157. In respect of costs and expenses, the applicants claimed a total amount of 53,625 euros (EUR) calculated as follows: EUR 18,158.81 in respect of the domestic proceedings, EUR 13,112.92 for the proceedings before the Chamber, and EUR 22,353.27 for the proceedings before the Grand Chamber. 158. The Government pointed out that the questions referred from the Chamber concerned only part of the initial complaints. Accordingly, they took the view that if the Court were to find a violation of the applicants’ rights, a total of 10,000 Swiss francs (CHF), equivalent to approximately EUR 6,667, would be appropriate in the present case to cover the costs and expenses incurred in the proceedings before the domestic courts and before the Chamber. As regards the proceedings before the Grand Chamber, the Government submitted that CHF 7,000 (approximately EUR 4,667) would be an appropriate amount. 159. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses incurred before the national courts for the prevention or redress of that violation by them (see Zimmermann and Steiner v. Switzerland, 13 July 1983, § 36, Series A no. 66, and Hertel v. Switzerland, 25 August 1998, § 63, Reports of Judgments and Decisions 1998-VI). Moreover, such costs and expenses must have been actually and necessarily incurred and must be reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V, and Linnekogel v. Switzerland, no. 43874/98, § 49, 1 March 2005). 160. Having regard to the foregoing, the Court notes that only the complaint under Article 8 has, in the present case, given rise to a finding of a violation of the Convention. The remainder of the application is inadmissible. In addition, it is not certain that the applicants’ claims have been sufficiently substantiated to meet in full the requirements of Rule 60 § 2 of the Rules of Court. In any event, they appear excessive, in particular as regards the amount claimed for the proceedings before the Grand Chamber. As Noam’s abduction had already been examined in detail by the domestic authorities and by the Chamber, the Court is not convinced that the proceedings before the Grand Chamber, and in particular the hearing of 7 October 2009, required the assistance of five lawyers for a total cost of EUR 21,456. 161. Having regard to the material in its possession and to the criteria developed in its case-law, the Court awards the applicants jointly a total of EUR 15,000 for costs and expenses, plus any amount that may be payable by them in tax on that award. C. Default interest 162. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there would be a violation of Article 8 of the Convention in respect of the two applicants if the decision ordering the child’s return to Israel were to be enforced. It was in particular not convinced that it would be in the child’s best interests for him to return to Israel. He was indeed a Swiss national and had settled very well in the country where he had been living continuously for about four years. Even though he was at an age (seven years old) where he still had a significant capacity for adaptation, the fact of being uprooted again would probably have serious consequences for him and had to be weighed against any benefit that he was likely to gain from it. In this connection, it was noteworthy that restrictions had been imposed on the father’s right of access before the child’s abduction. Moreover, the father had remarried twice since then and was now a father again but had failed to pay maintenance for his daughter. As to the mother, the Court further considered that she would sustain a disproportionate interference with her right to respect for her family life if she were forced to return to Israel.