EHRM, 06-07-2010, nr. 41615/07

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.

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.

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.

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.

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.

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.

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 that of 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

The Government further relied on the Court's judgment in Maumousseau and Washington v. France (no. 39388/05, ECHR 2007-XIII), 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.

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.

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).

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.

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.

In response to the fears expressed in the dissenting opinions and reiterated by the applicants in their referral request, namely, first, that any attempt on the first applicant's part to influence her son's religious education would in all likelihood be unsuccessful and, second, 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.

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).

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.

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.

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.

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.

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.

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).

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, ECHR 2008-… ; Ignaccolo-Zenide, cited above, § 102; Monory, cited above, § 82; and Bianchi, cited above, § 94).

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).

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., and see also Haase v. Germany, no. 11057/02, § 89, ECHR 2004-III (extracts), or Kutzner v. Germany, no. 46544/99, § 58, ECHR 2002-I, with the numerous authorities cited).

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’.

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).

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.

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).

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 (extracts)). 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).

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 the case of Maumousseau and Washington (cited above, § 83) as follows:

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.

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).

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).

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.

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 oneyear 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).

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 Emrev. 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).

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.

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.

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.

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.

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.