Aims of the Convention - Preamble, Arts 1 and 2
The Court held that the Preamble of the 1980 Convention, considered in the light of Article 7 of that instrument and the non-exclusive list of measures to be taken by States to ensure the return of children, should be seen as constituting the aims and objectives of the instrument, in accordance with Article 31(1) of the Vienna Convention on the Law of Treaties.
The Court further recalled that the adequacy of a measure was also to be judged by the rapidity with which it was put into effect and that measures relative to the attribution of parental authority, including the enforcement of decisions, should be treated with expedition. This was necessary for the passsage of time could have irredeemable consequences for the relationship between a child and an absent parent.
Procedural Matters
The Court was extremely critical of the manner in which the court of first instance at Willisau had responded to the initial application and had then decided the case. The Court questioned whether it had been appropriate to open a new procedure given the ruling of the Federal Supreme Court following the initial removal in April 2003. The four month delay which elapsed between the Willisau court being seised and the judgement was deemed not to be in accordance with the requirements of Article 11 of the Hague Convention. Furthermore the decision making in up-holding the Article 13 exception was called into question.
The Court noted that many steps had been taken to discover the whereabouts of the child from September 2004 onwards, however, the Court expressed its surprise at the events of 15 August 2004 when the mother had presented herself at a local police station and was allowed to leave after announcing she would not disclose the location of the child.
The Court held that the passivity of the Swiss authorities from the time of the abduction until 15 August 2004 did not accord with the aims and objectives of the Hague Convention and had led to the rupture of the relationship between the father and his son. For this reason there had been a breach of Article 8 of the ECHR.
DAMAGES
The father was awarded €15000 in respect of non-pecuniary damage and €5000 in respect of costs and expenses.