Information Note on the Court’s case-law No. 177
August-September 2014
Gajtani v. Switzerland - 43730/07
Judgment 9.9.2014 [Section II]
Article 8
Article 8-1
Respect for family life
Opinion of 11 year old child not taken into account in return proceedings under Hague Convention: no violation
Facts – The applicant, who was from the Republic of Kosovo*, lived in the former Yugoslav Republic of Macedonia with her two children and their father. In November 2005 she separated from the children’s father and moved with the children to join her family in Kosovo. There she married an Italian national and went to live with him in Switzerland. In 2006 the children’s father took steps to have the children returned to the former Yugoslav Republic of Macedonia. In December 2006 the authorities of that country awarded him sole custody of the children. Several days later, both parents and the elder son, then aged 11 and a half, were interviewed by the Swiss authorities. In March 2007 the Swiss supervisory authority refused the father’s application for the return of the children, notably because the elder son had strongly objected to the idea of returning to live with his father and had even refused to meet him. The authority’s decision was set aside in June 2007 by the Swiss court of appeal, which found that the son was not yet mature enough for his categorical refusal to return to be taken into account. In October 2007 the children were intercepted by the police and were taken back to the former Yugoslav Republic of Macedonia without the applicant.
Law – Article 8: There had been an interference with the applicant’s right to respect for her family life. The interference had been based on the Hague Convention** and had pursued the legitimate aim of protecting the rights and freedoms of the children and their father. The only question arising in this case was whether the competent authorities had taken sufficient account of the children’s views.
The court of appeal had concluded, after careful analysis of the statements made by the applicant’s son, that he was not mature enough for his categorical refusal to return to be taken into account. It had found that his behaviour did not indicate a sufficient degree of maturity for his views to be regarded as sufficiently independent. It had noted his intention to shield his mother from any responsibility, particularly as regards the abduction. The court had further observed that the child had been caught up in a conflict of loyalties and that he had probably been afraid of being cut off from his mother if he resumed contact with his father.
The court of appeal’s conclusion that the applicant’s son’s statements could not be taken into account in the decision on the children’s return was not unreasonable. Ruling on the basis of the child’s interview by the lower authority, the court had given detailed reasons for its decision. In view of the clear margin of appreciation enjoyed in this sphere by the domestic authorities, which were better placed than the Court to assess the matter, it had been reasonable for the court of appeal to take the view that it was neither necessary nor appropriate to interview the son again, particularly as interviews of that kind could have a traumatic effect on a child and lead to considerable delays in the proceedings.
The couple’s daughter, who had been five years old at the time, did not appear to have been interviewed. The applicant had not alleged that she had asked for her daughter to be interviewed and had the request denied. Nor had she claimed that an interview was essential to ascertain whether any of the circumstances precluding the child’s return as laid down in the Hague Convention were applicable. Furthermore, the Hague Convention did not place any obligation on the national authorities to interview the child.
Accordingly, the court of appeal could not be criticised for refusing to take account of the objections to returning voiced in particular by the applicant’s son. The decision-making process under domestic law had therefore satisfied the procedural requirements inherent in Article 8.
Conclusion: no violation (unanimously).
The Court also held, unanimously, that there had been a violation of Article 6 of the Convention on account of the lack of access to a court.
Article 41: EUR 5,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
* All reference to Kosovo, whether to the territory, institutions or population, shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
** The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy