Cour européenne des droits de l’homme (CourEDH)
26 October 2010
Convention européenne des droits de l’homme (CEDH) | Questions procédurales
The European Court of Human Rights restated its long affirmed position that the positive obligations imposed by Article 8 of the ECHR had to be interpreted in the light of the 1989 United Nations Convention on the Rights of the Child and the 1980 Hague Child Abduction Convention.
In assessing whether national courts had secured the guarantees of the ECHR in applying and interpreting the provisions of the 1980 Convention, the decisive issue was whether a fair balance, albeit within the margin of appreciation afforded to States, had been struck between the interests of the child and those of the parents. In this the child's best interests were the primary consideration, namely the maintenance of his family ties, unless such ties were undesirable, and, ensuring his development in a sound environment.
The assessment of an abducted child's best interests was primarily one for domestic authorities, and one over which they enjoyed a margin of appreciation, although this was subject to European supervision. It was equally for the Court to ensure that the decision making process was fair.
To that end the Court had to ascertain whether the domestic courts had 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 had 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.
Considering the facts of the case, the Court reiterated that "the concept of the child's best interests should be paramount in the procedures put in place by the Hague Convention. Consideration of what serves best the interests of the child is therefore of crucial importance in every case of this kind". The Court noted that the Romanian Appellate Court had taken into consideration the arguments of the parties with regard to the consent given by the father to the retention and had provided reasoning for the interpretation adopted in respect of Articles 3 and 13(1)(b) of the 1980 Convention.
The Court noted that it could not question the assessment of domestic authorities unless there was clear evidence of arbitrariness. There was no such evidence of arbitrariness in the present case; on the contrary, the Appellate Court had examined the case and given a judgment paying particular consideration to the principle of the paramount interests of the children- who had been very young when they left Israel, and who now appeared to be very well integrated into their new environment. Consequently there was no reason to depart from the findings of the domestic Court of Appeal.
The European Court of Human Rights held that the primary legal issue to be considered concerned the applicants' right to a family life and it held that it was not necessary to consider whether there had been a violation of Article 6(1) of the ECHR.
La Cour européenne des droits de l'homme a estimé que la question juridique à considérer en priorité était celle du droit des demandeurs au respect de leur vie familiale et qu'il n'était pas nécessaire de statuer sur une éventuelle violation de l'article 6(1) de la CEDH.