Thursday, August 12, 2010

More on Neulinger & Shuruk v. Switzerland

David Hodson on International Family Law

8/9/10

Swiss clockmakers fail to tell the time: ECHR allows abduction after many delays


David HodsonThere is much controversy across the child abduction world, between Europe and non-European countries, following a decision of the Grand Chamber of the European Court of Human Rights (ECHR) in Neulinger & Shuruk v. Switzerland (Application no. 41615/07) handed down on 6 July 2010. A Swiss couple moved to Israel and the child was born in 2003. The mother was anxious that the father had become involved in an extremist sect. In June 2005 the mother abducted the child to Switzerland. In May 2006 an Israeli court declared the child's habitual residence was in Israel. The litigation moved to Switzerland and over the next couple of years there were orders for return, then findings of harm if the child was returned and many appeals. Eventually the matter reached the ECHR which after preliminary investigations and reports in 2009 has just made its decision. And it appears very surprising.
In summary, it ruled that the European Convention on Human Rights concerning the integrity of family life, especially Article 8, overcomes the Hague Abduction Convention. It decided the ECHR was appropriate to consider if a domestic court in applying and interpreting the Hague Convention has secured Article 8 rights. Accordingly it would look at the best interests of the child at the present time rather than at the abduction or the return order of the Swiss courts. Timing was crucial. Several years had elapsed since the abduction, in good part through litigation, and the child was now well settled in Switzerland. A return was not ordered. So the expectations of almost automatic return in the Hague Convention came secondary to the European Convention on Human Rights.
Understandably this decision has created much consternation, especially outside Europe which is not a party to the Human Rights Convention. Jeremy Morley, one of the world's leading international family lawyers, practising from New York, has rightly drawn attention to the decision and the concern from outside Europe that a different course of action will now proceed in Europe in contrast to the conventional Hague approach. Internet chatroom cynicism to the decision is predictably that it shows that abduction pays. My colleague, Carolynn Usher, one of the world's leading and most experienced child abduction lawyers, has however contrasted the approach of the UK and some other countries in mostly adhering to the requirements in the Brussels Regulation (BIIr) for a six-week resolution including appeals, which in practice is extended to all Hague cases. The true failure in this case was that of the Swiss legal system to deal expeditiously.
The controversy over the decision will continue. What cannot be controverted is that some countries, including within the EU, take an unacceptably long time to deal with child abduction litigation including appeals. As a consequence, the life of the child has genuinely moved on. The answer is not to criticise the European Court of Human Rights. The real answer is to have a system which enforces and penalises those countries who are so slow to return abducted children as to work against the best interests of children.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.  The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

Book Review!



Book Review – “International Family Law Practice” by Jeremy Morley

Jeremy Morley’s book is aimed mainly at US family lawyers whose work, either frequently or occasionally, involves international elements.  It is not only an important resource for such US lawyers, but it is also a very helpful introduction to international issues for family lawyers from other countries, especially where US elements are involved.

The author says that his intention is “to provide an extremely practical approach to handling international family law matters in collaboration with family lawyers in local and distant jurisdictions”.  It does just that.  It is written in a very digestible and user -friendly way.   The readable style makes it is easy both to read through a whole chapter on a particular subject, and to drill down to a particular sentence or paragraph to extract a specific piece of information.   

I particularly like the way the book is interspersed with  practical information, advice and tips, which I expect will be especially helpful to those who practice this area of the law infrequently.  The author is concise and makes frequent use of bullet points to illustrate practical points and tips, for instance in the form of checklists, information required, competing considerations and basic principles to be applied.

The author’s considerable experience in the international family law field is abundantly apparent throughout the book.  He manages to simplify and put into bite size chunks complex areas of law and competing considerations so that they are easily understandable and readily digestible.

The book focuses on two main areas.  The first is international marriage and divorce and the second is that of children.  The first area includes chapters dealing with foreign pre and post-nuptial agreements including drafting considerations where there is a foreign element or prospect of future international relocation; and chapters on international divorce planning and the recognition of foreign country divorces.

The children chapters cover international child support issues, international custody and international relocation.  The final chapters deal with international child abduction including both Hague and non-Hague convention cases and also the prevention of child abduction.

From the non-US lawyer’s viewpoint, the book is not only a guide to some of the more important family laws and principles in other international jurisdictions (although of course it does not deal with any treaties or conventions between Countries other than the US), but it is also very useful for the practical information, guidance and tips it provides – many of which are as applicable to family lawyers around the world as they are to US lawyers.

William Massey
Partner
Farrer & Co LLP

to purchase: