Buscador de jurisprudencia

The mother moved to the United States in 2015. In 2016 she married the father whom she had met in 2014. They had two children, born in 2016 and 2018. The whole family held joint US-Greek nationality. From 2018 to 2020, their relationship experienced episodes of conflict.

In 2020 the mother and the children travelled to Greece with the father’s consent, given in a statement made before a notary, scheduling their return to the United States for February 2021. While they were in Greece, the airline informed them that, on account of the COVID-19 pandemic, the itinerary of their flight had changed. The mother informed the father that the new itinerary was inconvenient and that she intended to return to with the children in May 2021. She then enrolled the children in a school and registered them with the Greek social security system. In March 2021 she began working as a psychologist in Greece; she did not return to the United States.

The father subsequently made an application under the 1980 Hague Convention for the return of the children. 

In May 2022 the the Rhodes Court of First Instance found that there was a grave risk that the two children would be exposed to psychological harm and placed in an intolerable situation if returned to the United States, on the grounds, in particular, that they were enrolled in school and had integrated into their new environment in Greece. It further noted that the father had a demanding job and lacked social support or the support of family and friends for the children’s day-to-day care.

The father appealed the decision and, in December 2022, the Dodecanese Court of Appeal overturned the first instance decision and ordered the children’s return to their father in the United States. The Court of Appeal held that the two children’s integration in Greece was not sufficient for their return to their habitual place of residence to constitute an ordeal or an intolerable situation. In December 2023 the Court of Cassation upheld that judgment. Meanwhile, the father had filed for divorce in the United States courts, which had been granted in September 2022.

The children returned to the United States to live with their father in December 2024. The mother remained in Greece. 

The mother and the two children made an application to the European Court of Human Rights (ECrtHR). Relying on Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR), they submitted that their allegation of a grave risk to the children if returned to the United States had not been examined in an effective manner by the Greek courts. They further complained that the two children had not been heard by the Greek courts in the domestic proceedings.

European Court of Human Rights held, by 5 votes to 2, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

In 1980 Hague Convention proceedings national authorities were required to examine whether it would be appropriate to hear the child as part of their decision making.

European Convention on Human Rights (ECHR)

The Court found that the Greek courts had assessed the situation without considering whether it would be appropriate to ascertain the children’s views, which were, after all, a key consideration. As a result, it found that the Greek courts had not been able to make an informed assessment as to whether there had existed a “grave risk” to the children within the meaning of Article 13(1)(b) of the 1980 Hague Convention, and that the decision-making process under domestic law had not met the procedural requirements inherent in Article 8 of the ECHR. The forcible return of the two children to the United States could not, therefore, be regarded as necessary in a democratic society.

The return of the two children by order of the Greek courts constituted an interference with the applicants’ right to respect for their family life. Such interference was based on the 1980 Hague Convention which was intended to protect the rights and freedoms of the two children.

As to whether the interference was necessary in a democratic society, the Court took the view that the main question was whether the decision-making process had pursued the best interests of the two children and, in particular, whether it had ruled out any “grave risk” to them, within the meaning of Article 13(1)(b) of the Hague Convention.

Though the domestic court had taken into account all the evidence produced by the applicants, the two children had not been heard. The Court now considered that the time had come to assert that the national authorities were required to examine of their own motion whether it would be appropriate to hear the child, either directly or otherwise, in order, if necessary, to rule out that possibility in a reasoned decision.

Consequently, the Court concluded that the domestic courts had not used all the means at their disposal to rule out any “grave risk”, within the meaning of Article 13(1)(b) of the Hague Convention. The decision-making process under domestic law had therefore not met the procedural requirements inherent in Article 8 of the Convention and the forcible return of the two children to the United States could not be regarded as necessary in a democratic society. There had therefore been a violation of Article 8 of the Convention.

The Court held that Greece was to pay the mother and children €7,500, jointly, in respect of non-pecuniary damage and to pay the father €4,200 in respect of costs and expenses.

Judges Roosma and Hüseynov expressed a joint dissenting opinion. While agreeing, in principle, that such a general duty can be derived from Article 8 of the Convention, they had reservations concerning to what extent it applies to return proceedings under the 1980 Hague Convention, given the specific object and purpose of the treaty. They highlighted the need for a "harmonious interpretation" of the ECHR and the 1980 Hague Convention – one that preserves the 1980 Hague Convention's core purpose of securing the prompt return of children unless one of the exceptions is applicable, while at the same time ensuring that this Court interprets and applies the ECHR guarantees in a manner that is practical and effective.  

They also noted that, under the 1980 Hague Convention, it is for the party opposing a child’s return to establish the existence of a “grave risk” within the meaning of Article 13(1)(b) (in this case the applicants neither requested in writing that the children be heard nor raised any complaint about the absence of such a measure in their appeal to the Court of Cassation ) and that a court is obliged to hear a child only if it considers that the child has the required maturity. 

In this case, they argued that omitting to seek the opinion of the four- and six-year-old applicants cannot be equated with a failure to use all means available to exclude any "grave risk" within the meaning of Article 13(1)(b).