Interpretation of the Convention
Appeal dismissed, application dismissed
Appeal dismissed; application dismissed. At the start of the wrongful retention, the Convention was not yet in force in Austria.
European Convention on Human Rights (ECHR)
ECrtHR - Violation of Article 8 ECHR, award of damages
Violation of Article 8, ECHR; the Russian Federation had failed to put in place the necessary legal framework to address the international child abduction case at the time, and had failed to take all reasonable measures to facilitate the enjoyment of the right to family life. The Russian Court's decision to refuse to recognise and enforce the Czech decision of 2 June 2011 did not amount to a violation of Article 8, ECHR.
The Court considered it unnecessary to separately examine the applicant's claim under Article 13, ECHR. 12,500 Euros awarded in damages.
Aims of the Convention - Preamble, Arts 1 and 2
Rights of Custody - Art. 3
Objections of the Child to a Return - Art. 13(2)
Removal wrongful and return ordered; none of the Article 13 exceptions had been proved to the standard required under the Convention.
Habitual Residence - Art. 3
Appeal dismissed, return refused
Daughter born in 2007 and son in 2012 ― Father, mother and both children previously Sri Lankan nationals and naturalized in Japan in 2017 ― Father living in Japan since 1999 and mother since 2002 ― Parents married in 2002 ― Father principally moved to Sri Lanka with two children in July 2017, but maintained his job, home and residence registration in Japan ― Mother also travelled back and forth ― Children enrolled at school in Sri Lanka in September 2017, but went back to their elementary school in Japan during long school breaks ― Parents separated since August 2018, followed by petitions for a custody order and divorce to the Osaka Family Court ― Mother retains son since April 2019 in Japan ― Father returned to Sri Lanka with daughter in May 2019 ― Father filed petition for the son’s return to the Osaka Family Court in June 2019 ― Petition dismissed ― Appeal dismissed and return refused by the Osaka High Court in October 2019 ― Main issue: Habitual residence of the child.