(European Court of Human Rights; 10 November 2008)
The Swiss mother and the American father lived with the child in the US, but the mother and child travelled to Switzerland with the father's consent. The mother decided to remain in Switzerland, petitioning the Swiss court for divorce and requesting a residence order in respect of the child. The father applied for the child's summary return under the Hague Convention. The Swiss court joined the two sets of proceedings, and eventually, after more than 3 months, rejected the father's application, on the basis that the father had been unable to submit evidence in support of his allegation that he had agreed to the mother's visit to Switzerland only on condition that at the end of the visit she return the child to the USA. The father alleged that his right under European Convention on Human Rights, Art 8, to respect for his family life, had been breached.
The child's best interests, understood as a decision on his immediate return to his habitual place of residence, had not been taken into account by the Swiss courts when evaluating the request for his return, and the father's right to respect for his family life had not been protected in an effective manner by the domestic courts. It was clear that under Hague Convention, Art 16, proceedings on the merits of residence rights were to be suspended until a decision had been reached about the child's return, therefore the decision to join the domestic and Hague proceedings had been contrary to the terms of the Hague Convention. The Swiss court had not acted expeditiously, contrary to Art 11 of the Hague Convention. Finally, the court had reversed the burden of proof, contrary to Art 13 of the Hague Convention, in that the father had been required to 'establish' that he had not consented to child's removal or non-return.