Parental Abduction: ECHR Case Law Under the 1980 Hague Convention

The European Court of Human Rights (ECHR) examines parental abduction cases under Article 8 of the European Convention on Human Rights, which protects the right to respect for family life, read in the light of the 1980 Hague Convention; as a member state, Turkey is also bound by this case law. In these cases the Court reviews whether the national court dealing with the return application acted quickly, genuinely examined allegations of grave risk and whether the return order was actually enforced. This page reviews ECHR Hague Convention case law on parental abduction, covering the leading judgments in Hague Convention child abduction cases with their application numbers and outcomes.

Parental abduction is a longstanding issue with deep historical roots. In recent years, factors such as the increase in international travel, the rise of multicultural marriages and the growing number of divorce cases have led to a rapid increase in parental abduction cases. Because many Turkish citizens live abroad, the issue is becoming more important in Turkey every year and calls for serious international cooperation.

The main tool of this cooperation is the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, in force in Turkey since 1 August 2000. The way the Convention works in Turkey and its relationship with ECHR review rest on the following elements:

• Immediate return: The Hague Convention provides for the immediate return of a child who has been wrongfully removed to, or retained in, a contracting state in breach of rights of custody, to the state of the child’s habitual residence.
• Purpose: This urgent abducted child return procedure aims to restore the situation that existed before the abduction and to deprive the abducting parent of any advantage gained from it.
• Binding effect: The Hague Convention is binding on the contracting states, including Turkey; however, its effectiveness depends on how central authorities and national courts interpret and apply its provisions.
• Differences between countries: Practice varies between countries when it comes to the international abduction of a child, and in families where the parents hold different nationalities, citizenship and residence permit questions under Foreigners Law are often added to the dispute. Central authorities should therefore implement the Hague Convention not only on the basis of its text but also in line with its purpose.
• Practice in Turkey: In Turkey, the return of a child in an international child abduction case is secured through an application handled by the Ministry of Justice as the central authority and a return action before the family court under Law No. 5717.
• Role of ECHR case law: The case law developed by the ECHR when reviewing national decisions in parental abduction cases is a key guide; building a bank of precedents for parental child abduction cases, and using it as guidance for the courts of the contracting states, is essential for the correct application of the Hague Convention.

What Standards Does the ECHR Apply in Parental Abduction Cases?

The ECHR interprets the obligations that Article 8 imposes on states in harmony with the provisions of the Hague Convention. Five core standards emerge from the Court’s judgments:

• the state’s positive obligation,
• speed,
• a reasoned examination of grave risk allegations,
• habitual residence,
• the correct application of the concept of rights of custody,
• the best interests of the child.

1. What Positive Obligation Does Article 8 Impose on States?

Article 8 of the Convention includes a parent’s right to have measures taken with a view to being reunited with the child and an obligation on national authorities to take such measures. ECHR case law defines the scope of this obligation as follows:

• Test: The decisive question is whether the national authorities took all the steps that could reasonably be expected of them.
• Limit: This obligation is not absolute; the nature and extent of the measures depend on the circumstances of each case.
• Consequence for the parent: Where a return or contact order is not enforced, the parent can argue before the ECHR that the authorities did not make sufficient efforts to enforce it.

2. Why Is Speed Decisive in Hague Return Cases?

Article 11 of the Hague Convention requires judicial and administrative authorities to act expeditiously in return proceedings and allows a statement of reasons to be requested if no decision is reached within six weeks. The ECHR applies this rule under Article 8 as follows:

• Effect of time: The ECHR stresses that the passage of time can have irremediable consequences for the relationship between the child and the parent who does not live with the child.
• Violation: Proceedings that greatly exceed the six-week time-limit may amount to a violation of Article 8.

3. How Should Courts Examine the Grave Risk Exception Under Article 13(1)(b)?

Article 13(1)(b) of the Hague Convention allows return to be refused where there is a grave risk that it would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. In X v. Latvia the Grand Chamber set out how this exception must be examined:

• Genuine examination: Arguable allegations of grave risk must genuinely be taken into account by the court.
• Specific reasons: They must be decided with specific reasons based on the facts, not with automatic or stereotyped wording.
• Strict interpretation: The exceptions are interpreted strictly, but dismissing them without any examination breaches Article 8.

4. Why Do Habitual Residence and Rights of Custody Matter?

Under Article 3 of the Hague Convention, a removal or retention is wrongful where it breaches rights of custody that were held under the law of the state of the child’s habitual residence immediately before the removal and were actually exercised. These two concepts directly determine the outcome of a return case:

• Habitual residence: Habitual residence is the place where the child actually lives and where the child’s social life is centred.
• Rights of custody: The Hague Convention only protects removals or retentions made in breach of rights of custody.
• ECHR approach: The ECHR regards a refusal of return without examining whether the applicant held rights of custody, and where the habitual residence was, as an inadequate examination.

5. How Are the Best Interests of the Child and Settlement Assessed?

According to the ECHR, the best interests of the child must be assessed in each individual case, taking into account the child’s age, maturity, the parents’ situation and the child’s environment, and cannot be determined automatically or mechanically. The place of the settlement criterion in the Convention and in ECHR practice is as follows:

• Hague Art. 12: Return is not mandatory where the proceedings were started more than one year after the abduction and it is shown that the child is now settled in the new environment.
• ECHR practice: In some judgments the ECHR also assessed settlement outside this one-year rule, an approach that has been criticised in legal writing.

The principles that stand out in ECHR case law, their legal basis and the judgments in which they were applied are summarised below. The judgments listed in the table are examined in detail further down the page.

Which ECHR Judgments Have Been Delivered in Hague Convention Child Abduction Cases?

The ECHR has delivered many leading judgments in parental abduction cases under the 1980 Hague Convention. The judgments are grouped by subject below, with their application numbers, dates and outcomes.

1. Which States Were Found in Violation for Failing to Enforce Return Orders?

The largest group of violations concerns cases in which national authorities did not effectively enforce a return or custody order. In these judgments the Court held that the state’s failure to make adequate and effective efforts breached Article 8.

Ignaccolo-Zenide v. Romania and Karadžić v. Croatia

In Ignaccolo-Zenide v. Romania (31679/96, 25.01.2000) and Karadžić v. Croatia (35030/04, 15.12.2005), the inadequate measures taken by the authorities to enforce decisions ordering the children’s return to their mothers led to a finding of a violation of Article 8. The key aspects of these judgments are:

• Hague Art. 7: In Ignaccolo-Zenide, the Court also found that the Romanian authorities had not taken the return measures listed in Article 7 of the Hague Convention.
• Core of family life: The ECHR stressed that the mutual enjoyment by parent and child of each other’s company is protected by Article 8 and pointed to the contracting states’ obligation to ensure the effective exercise of this right.
• Reading with the Hague Convention: The ECHR interpreted these obligations in the light of the Hague Convention, thereby making a significant contribution to the effectiveness of the Convention.
• Speed: These judgments are also important because they emphasise that competent authorities must act swiftly in an international abduction return case under the Hague Convention.

Seven Judgments on Unenforced Return Orders in Favour of Fathers

In Stochlak v. Poland, P.P. v. Poland, Bajrami v. Albania, Bianchi v. Switzerland, H.N. v. Poland, Monory v. Romania and Hungary, and Maire v. Portugal, the applicant was the father, the mother had taken the child to or kept the child in another country, and the ECHR found a violation because the authorities’ measures to enforce decisions for the return of the child to the father were insufficient. The findings drawn from these judgments are:

• Common principle: The Court emphasised that local authorities and official bodies must take an active role in enforcing court decisions in parental abduction cases.
• Bajrami v. Albania: The Court noted that Albania’s not being a party to the Hague Convention at the time did not release it from its positive obligation under Article 8.
• H.N. v. Poland: The right to a hearing within a reasonable time (Article 6 § 1) was also violated in addition to Article 8.
• Monory v. Romania and Hungary: The Court found a violation of Article 8 by Romania and a violation of Article 6 § 1 by Hungary because of the length of the proceedings.

Leschiutta and Fraccaro v. Belgium

In Leschiutta and Fraccaro v. Belgium (58081/00 and 58411/00, 17.07.2008), the ECHR concluded that, after the mothers took the children abroad, the competent authorities did not make fast, sufficient and effective efforts to return the children to their fathers. According to the Court, the authorities’ passivity, combined with the passage of time, could have led to a complete breakdown of the relationship between the children and their fathers. It therefore found that the Hague Convention had not been applied effectively and that Article 8 had been violated.

Karoussiotis v. Portugal and Dore v. Portugal

Karoussiotis v. Portugal (23205/08) and Dore v. Portugal (775/08) were both decided on 1 February 2011, and in both cases the ECHR found a violation of Article 8 because of delays by the Portuguese authorities in the return process. In Karoussiotis the applicant was the mother, whose child had been retained in Portugal by the father. In these cases the ECHR emphasised that the procedure for the return of the child must be carried out quickly and completely in accordance with the provisions of the Hague Convention on parental abduction.

Shaw v. Hungary

In Shaw v. Hungary (6457/09, 26.07.2011), the ECHR held that the Hungarian authorities’ failure to enforce the return order for the daughter of a Paris-based father, whom the mother had taken from France to Hungary and kept there, violated Article 8. Although the parents had joint custody over the child, the competent authorities took no steps to enforce the return order. The Court regarded the fact that the father was unable to see his daughter for more than three and a half years as aggravating the violation.

The judgments in this group on the enforcement of return orders are summarised below with their findings. What they have in common is that a return order alone is not enough: the state is expected to actually enforce it.

2. When Does the Length of Return Proceedings Breach the Convention?

The ECHR treats return proceedings that greatly exceed the six-week period in Article 11 of the Hague Convention, and that do not examine the child’s best interests in depth, as a violation of Article 8. However, a long procedure does not in itself lead to a violation; the delay must be attributable to the national authorities.

Karrer v. Romania

In Karrer v. Romania (16965/10, 21.02.2012), the ECHR found a violation of Article 8 because the decision-making process of the Romanian courts in a Hague case concerning a child whose return to Austria was requested was flawed. The Court’s findings were:

• Best interests: The domestic courts did not carry out an in-depth analysis of the child’s best interests.
• Opportunity to present the case: The father was not given the opportunity to present his case expeditiously.
• Time-limit: The six-week time-limit was largely exceeded, as the first-instance and appeal proceedings lasted eleven months in total.

Carlson v. Switzerland

In Carlson v. Switzerland (49492/06, 06.11.2008), the ECHR found a violation of Article 8 because the Swiss courts that refused the father’s application for the return of a child taken by the mother from the United States to Switzerland did not take the child’s best interests into account. The reasoning rests on two findings:

• Rapid decision: According to the Court, the child’s best interests lay in a rapid decision for his prompt return to his habitual environment.
• Burden of proof: The Swiss courts had, contrary to Article 13 of the Hague Convention, expected the father to prove that he had not consented to the retention.

Macready v. the Czech Republic

In Macready v. the Czech Republic (4824/06 and 15512/08, 22.04.2010), the ECHR found a violation of Article 8 because of the length of the proceedings concerning the return of a child taken by the mother from the United States to the Czech Republic. It took more than twenty months to reach a final decision on return, and during that period the father could only exercise limited contact rights granted by interim measures. The judgment shows that the ECHR sometimes examines complaints about the right to a hearing within a reasonable time under Article 8, taking into account the swift return procedure of the Hague Convention.

Serghides v. Poland

In Serghides v. Poland (31515/04, 02.11.2010), the ECHR held by four votes to three that Article 8 had not been violated, finding that the later reversal of the order to return the applicant’s daughter, taken by her mother to Poland, to the United Kingdom could not be attributed to the conduct of the national authorities. The Court noted some delays in the proceedings but accepted that, overall, the proceedings had progressed at a regular pace without significant inactivity on the part of the authorities. The judgment shows that where the delay cannot be attributed to the national authorities, the length of the proceedings alone does not lead to a violation.

The criteria that decided whether there was a violation in the judgments on length and the decision-making process are compared below. What matters is not the length as such, but to whom the delay is attributable and whether the child’s interests were examined.

3. When Does a Return Order Itself Breach the Convention?

The ECHR reviews under Article 8 not only refusals or non-enforcement of return orders but also return orders themselves. In this group of judgments the Court found violations where grave risk allegations had not been examined adequately or where the child’s settlement in the new environment had been ignored.

Neulinger and Shuruk v. Switzerland

The Grand Chamber judgment in Neulinger and Shuruk v. Switzerland (41615/07, 06.07.2010) concerns a mother with custodial rights who unilaterally relocated with her child to another country. The Swiss Federal Court, considering the grave risk exception in Article 13(1)(b) of the Hague Convention, ruled that the mother could return to Israel with the child and that the dispute on the merits of custody could be heard there.

The ECHR, however, found that the child’s settlement in the new country and the difficulties the mother would face if she returned to Israel were sufficient to conclude that enforcing the return order would be a disproportionate interference with family life. The Court’s statements of principle and its assessment of the facts were:

• Interpretation: The Convention cannot be interpreted in a vacuum and must be interpreted in harmony with the general principles of international law; in parental abduction cases, the obligations imposed by Article 8 must be interpreted in particular in the light of the Hague Convention.
• Rule of return: The Hague Convention, as a rule, requires return unless the child would be exposed to a grave risk of physical or psychological harm or otherwise placed in an intolerable situation.
• Best interests: The return of a child cannot be ordered automatically or mechanically; the child’s best interests must be assessed in each individual case, taking into account in particular the child’s age and maturity, the parents’ situation and the child’s environment.
• The child’s situation: The child, who holds Israeli and Swiss nationality, came to Switzerland at about the age of two and had lived there continuously since then; according to medical reports, uprooting the child from his usual environment, and in particular returning him alone, would probably have serious consequences for him.
• The mother’s situation: The ECHR pointed out that the mother would face a risk of criminal sanctions upon her return, the scope of which had not yet been determined. The mother, a Swiss national, was entitled to remain in Switzerland, and even if she agreed to return to Israel, the question of who would take care of the child would arise if her liberty were restricted.
• The father’s situation: Considering the father’s past conduct and limited financial resources, there were doubts about his capacity to take care of the child; he had never lived alone with the child and had not seen him since the child’s departure.

In conclusion, the ECHR held that the return of the child to Israel would not be in the child’s best interests and that forcing the mother to return to Israel with her son would be a disproportionate interference with the right to respect for family life. Accordingly, there would be a violation of Article 8 in respect of both applicants if the Swiss Federal Court’s return order were enforced.

What Criticism Has Been Made of the Neulinger Judgment?

The Neulinger judgment has been criticised in legal writing for its reading of the Hague Convention. The criticism focuses on two points:

• Settlement criterion: Article 12 of the Hague Convention provides for the settlement criterion as an exception only where the return proceedings were started more than one year after the abduction. In Neulinger, although the Hague proceedings in Switzerland were started within one year of the abduction, the ECHR still relied on the criterion of the child’s settlement in the new environment.
• Merits of custody: Articles 16 and 19 of the Hague Convention prohibit the court hearing the return case from deciding on the merits of custody. The inclusion of elements relating to the merits of custody in Neulinger has been criticised on the ground that it significantly widens the remit of the courts hearing return cases.
• Later clarification: In the later X v. Latvia judgment, the ECHR clarified that its finding in paragraph 139 of Neulinger does not in itself set out any principle for the application of the Hague Convention by the domestic courts.

X v. Latvia

In the Grand Chamber judgment X v. Latvia (27853/09, 26.11.2013), the ECHR defined a reasoned examination of grave risk allegations as a procedural obligation arising from Article 8 and found a violation by nine votes to eight. The facts and principles of the judgment are:

• Facts: The mother had taken her daughter from Australia to Latvia, and the Latvian courts ordered the return without adequately examining a psychologist’s certificate on the risk of psychological harm to the child.
• Principle: Arguable allegations relating to the exceptions in Articles 12, 13 and 20 of the Hague Convention must genuinely be taken into account and decided with detailed reasons based on the facts, not with automatic or stereotyped wording.
• Balance: The Court accepts that the court hearing a return case should not decide on the merits of custody, but it finds that failing to examine grave risk allegations at all, or dismissing them with insufficient reasons, is contrary to Article 8.
• Significance: The judgment shows how the ECHR balanced the relationship between the Hague Convention and the European Convention after Neulinger.

Šneersone and Kampanella v. Italy

In Šneersone and Kampanella v. Italy (14737/09, 12.07.2011), the ECHR held that the Italian court order for the return of a young child living with his mother in Latvia to his father in Italy violated Article 8. The Court’s findings were:

• Psychological trauma: The Italian courts did not adequately assess the psychological trauma that could result from the sudden and irreversible severance of the close ties between the child and his mother.
• Alternative solutions: Alternative solutions for ensuring contact between the child and his father were not considered.
• Procedural complaint: No violation was found as regards the procedural complaint about the mother’s absence from the hearing before the Rome Youth Court.
• Significance: The judgment shows that disputes under the Hague Convention can be examined under Article 8 not only where the return request is refused but also where a return order is granted.

B. v. Belgium

In B. v. Belgium (4320/11, 10.07.2012), the ECHR held that enforcing the Belgian appeal court’s order for the return to the United States of a child taken to Belgium by her mother, without the father’s consent or the approval of the US courts, would violate Article 8. According to the Court, the appeal court did not itself examine the risk that return would place the child in an intolerable situation and treated the child’s full integration into her life in Belgium only as a procedural matter. The ECHR emphasised in this judgment the importance, in cases of parental abduction, of determining whether the child has adapted to the new life and the need for a detailed examination of this question by the domestic court.

M.R. and L.R. v. Estonia

In M.R. and L.R. v. Estonia (13420/12, 15.05.2012), the ECHR declared the application inadmissible as manifestly ill-founded, finding that the Estonian court order for the return of the child to Italy did not violate Article 8. The key aspects of the decision are:

• Facts: The mother had not returned to Italy from Estonia, where she had travelled with her daughter for a visit.
• Interim measure: While the application was pending in Strasbourg, the ECHR applied an interim measure under Rule 39 of the Rules of Court and, given the urgency of the situation, decided the case in less than three months.
• Margin of appreciation: The Estonian authorities, which rejected the mother’s claim that she could not return to Italy, did not exceed their margin of appreciation; there was no indication that the return decision was arbitrary or that a fair balance between the interests involved had not been struck.

Raban v. Romania

In Raban v. Romania (25437/08, 26.10.2010), the ECHR held that Article 8 had not been violated, finding no arbitrariness in the Romanian appeal court’s refusal to return the children to Israel. The facts and the assessment were:

• Facts: The mother, who shared custody, travelled with the children to Romania for six months with the father’s agreement but did not return to Israel.
• Defence: The father filed a lawsuit under the Hague Convention on parental abduction; the mother argued that the insecure environment in Israel posed a “grave risk” to the children, the first-instance court ordered their return and the appeal court overturned that decision.
• ECHR assessment: Having regard to the state’s margin of appreciation and the case-by-case approach required in child-related cases, the ECHR found proportionate the appeal court’s assessment that the children, who were very young when they left Israel, had fully settled in their new environment.
• Criticism: This approach has also been criticised in legal writing, because questions of settlement and custody should be addressed in custody proceedings conducted by the courts of the child’s habitual residence after the return procedure has been completed.

The judgments reviewing whether return orders complied with the Convention on grounds of grave risk and settlement are summarised below. In this group, what the ECHR mainly reviews is whether the national court examined the exception arguments with proper reasons.

4. In Which Judgments Was the State Not Held Responsible?

The ECHR does not find a violation where the national authorities took the reasonable measures expected of them, or where the applicant did not hold rights of custody within the meaning of the Hague Convention. The two judgments below illustrate this approach.

Tapia Gasca and D. v. Spain

In Tapia Gasca and D. v. Spain (20272/06, 22.12.2009), the ECHR held that the Spanish authorities had fulfilled their obligations to prevent the child’s removal abroad and to secure her return after the Moroccan father failed to return the daughter to her mother after a visit and the child was taken to Morocco. The applicant mother argued that the local authorities had not made sufficient efforts and had failed to secure the child’s return. The Court found that, despite the absence of concrete results, the Spanish authorities had not breached their positive obligations and held that Article 8 had not been violated.

Balbontin v. the United Kingdom

In Balbontin v. the United Kingdom (39067/97, 14.09.1999), the ECHR declared the application inadmissible, finding that an unmarried father without parental responsibility, who could not obtain a declaration that his child had been wrongfully removed, had not suffered a breach of Article 14 taken together with Article 8. The facts and consequences of the decision are:

• Facts: The child had been taken by the mother from England to Italy, and at that time the father held no custody or parental responsibility order.
• Reasoning: According to the Court, the difference in treatment between fathers who have the care of the child and those who do not had an objective and reasonable justification.
• Meaning under the Hague Convention: Because the Hague Convention only protects removals or retentions made in breach of rights of custody, whether the applicant held rights of custody under the law of the state of habitual residence is decisive. The decision also shows that the institution of the family and the powers given to parents can be regulated differently in different legal systems.

Which ECHR Parental Abduction Judgments Have Been Delivered Against Turkey?

In parental abduction and contact cases brought against Turkey, the ECHR has delivered both violation and no-violation judgments. The Hague Convention has been in force in Turkey since 1 August 2000; for events before that date the ECHR assessed the obligations of the Turkish authorities directly under Article 8 of the European Convention.

Sophia Guðrún Hansen v. Turkey

In Hansen v. Turkey (36141/97, 23.09.2003), the ECHR found a violation of Article 8 because the measures taken by the Turkish authorities to enforce court decisions on the contact rights of an Icelandic mother with her daughters, who were living with their father in Turkey, were insufficient. The children had travelled to Turkey with their father for a holiday in 1990 with the mother’s consent and did not return to Iceland. The ECHR did not accept the Government’s argument that the Turkish authorities had done what could reasonably be expected of them to secure the applicant’s right to see her children.

Övüş v. Turkey

In Övüş v. Turkey (42981/04, 13.10.2009), the ECHR found a violation of Article 8 because the Turkish authorities did not make adequate and effective efforts to secure the applicant mother’s contact with her children. The facts and consequences of the judgment are:

• Facts: Although the German divorce judgment granting custody to the mother, who lived in Germany, had been the subject of a foreign divorce recognition and enforcement decision in Adana, the mother had to leave Turkey without her children when she visited and could not see them for three years.
• Article 6 § 1: The Court also found a violation of Article 6 § 1 because the mother had not been notified of the divorce action brought by the father in Adana.
• Interim measures: Under Article 169 of the Turkish Civil Code, when a divorce action is filed the judge of his or her own motion takes the interim measures needed during the proceedings, in particular for the spouses’ maintenance and for the care and protection of the children; child support, interim alimony and contact arrangements are among the most common of these measures.
• Significance: The Övüş judgment shows that the ECHR requires measures for establishing contact with the child, in particular, to be enforced effectively and sufficiently.

Eskinazi and Chelouche v. Turkey

In Eskinazi and Chelouche v. Turkey (14600/05, 06.12.2005), the ECHR declared the application inadmissible by a majority as manifestly ill-founded, finding that the Turkish courts’ decision to return the child to Israel under the Hague Convention did not breach Articles 6 and 8. The applicants were a mother of Turkish and French nationality and her daughter; in 2004 the mother travelled to Turkey with her daughter for ten days, postponed the return several times and finally decided to remain in Turkey. Reiterating that Article 8 must be interpreted in the light of the Hague Convention, the ECHR concluded that the Turkish authorities that ordered the return could not be said to have disregarded their obligations under the European Convention.

Ancel v. Turkey

In Ancel v. Turkey (28514/04, 17.02.2009), the ECHR held that Articles 8 and 6 § 1 had not been violated, finding that the Turkish authorities had made sufficient efforts to secure the right of a mother living in France to the return of her daughter. The applicant complained that the decision granting her custody of her daughter, who had stayed with the father’s family in Turkey, had not been enforced. The Court identified the father’s disappearance as the core of the problem and accepted that the Turkish authorities had taken the necessary steps to locate the father and the child.

Küçük v. Turkey and Switzerland

Küçük v. Turkey and Switzerland (33362/04, 17.05.2011) is one of the most significant judgments concerning Turkey on how states’ positive obligations under Article 8 to protect family life are determined within the framework of the Hague Convention’s parental abduction provisions. The case concerned the allegation that the Turkish and Swiss authorities failed to take the necessary measures for the prompt return to Turkey, in accordance with the Turkish courts’ decisions, of a son who had been taken abroad by his mother with forged documents and brought to Switzerland, whose custody had been granted to the father. The Court’s findings were:

• Family life: The continued cohabitation of the applicant, to whom custody had been granted, and his son constitutes a fundamental element of family life within the meaning of Article 8 § 1.
• Positive obligation: Article 8 includes not only the right to have measures taken to reunite a parent with the child but also the obligation of national authorities to take such measures. The decisive question is whether the national authorities have taken all reasonable measures expected of them to facilitate the enforcement of custody, contact or cohabitation rights granted to the parent by legislation or court decisions.
• Limit: The obligation of national authorities is not absolute and the nature and scope of protective measures depend on the circumstances of each case; the positive obligations in this area must be interpreted in the light of the 1980 Hague Convention.
• Central authorities: Under the Hague Convention, central authorities must cooperate with each other and promote cooperation among the competent authorities of the states concerned to secure the prompt return of children. The fact that the judicial, diplomatic and police initiatives of Turkey and Switzerland did not proceed as the applicant wished does not mean that the Turkish and Swiss authorities were passive.
• Outcome: Despite the time that elapsed between the child’s abduction and his return to Turkey, the authorities had completed all necessary procedures under their domestic law and international treaties, and there was no violation of Article 8. By contrast, Turkey violated Article 5 § 1 because the applicants had been arbitrarily detained overnight by the Turkish authorities.

İlker Ensar Uyanık v. Turkey

In İlker Ensar Uyanık v. Turkey (60328/09, 03.05.2012), the ECHR found a violation of Article 8 because the Turkish courts that refused the return of the daughter of a father living in the United States, retained in Turkey, did not examine the case in the light of the principles of the Hague Convention. The facts and reasoning of the judgment are:

• Facts: The family came to Turkey on holiday in 2007 and the mother did not return to the United States with the child; the İzmir Family Court refused the return application mainly on the ground that the child was very young and needed her mother’s care.
• Incomplete examination: The domestic court did not examine whether the father held rights of custody within the meaning of Article 3 of the Hague Convention or whether the child’s retention in Turkey was wrongful.
• Age criterion: While accepting that the child’s very young age was a factor to be taken into account, the ECHR stressed that it could not on its own be a sufficient reason for refusing a return application under the Hague Convention.

The judgments concerning Turkey show that the national authorities are reviewed both on the enforcement of return and contact decisions and on how the Hague case itself is examined in Turkey. The judgments and their key findings are summarised below.

Summary Table of the ECHR Judgments Reviewed

The table lists the judgments reviewed on this page with their application number, date and the Court’s conclusion. The full texts can be found on HUDOC, the Court’s official case-law database, by searching for the application number.

What Is the Time Limit for Applying to the ECHR in a Parental Abduction Case in Turkey?

A parent who has exhausted domestic remedies in a Hague case in Turkey can lodge an individual application with the ECHR within four months of the final domestic decision. In Turkey, an individual application must first be made to the Constitutional Court against the final decision in the return case. An application to the ECHR does not in itself secure the child’s return; the Court determines whether the state has violated the Convention.

1. Why Must an Application Be Made to the Constitutional Court in Turkey First?

Article 45 of Law No. 6216 requires all administrative and judicial remedies provided by law to be exhausted before an individual application is made to the Constitutional Court of Turkey. Under Article 47 of the same Law, the individual application must be made within thirty days from the exhaustion of remedies. An application to the Constitutional Court is also a domestic remedy that must be exhausted before applying to the ECHR.

2. Is the ECHR Application Deadline Four or Six Months?

The time limit in Article 35 of the European Convention was reduced from six to four months by Protocol No. 15, and the four-month limit applies to final domestic decisions given after 1 February 2022. As a rule, the period starts to run from the date on which the final domestic decision is served on the applicant or the applicant’s lawyer. The four-month period is only interrupted by sending a complete application form that complies with Rule 47 of the Rules of Court.

3. Can Interim Measures Be Requested From the ECHR in Urgent Cases?

Under Rule 39 of the Rules of Court, the ECHR may indicate interim measures in exceptional cases where there is an imminent risk of irreparable harm. In M.R. and L.R. v. Estonia and B. v. Belgium, the ECHR applied interim measures to stop the child’s return while the application was being examined. Interim measures are exceptional and require concrete evidence that enforcing the return order would cause serious and irreversible harm to the child; parents abroad often work with an English-speaking lawyer in Turkey to prepare such urgent requests.

The remedies available after a final decision in a return case in Turkey are shown below with their time limits and legal basis. Time limits must be calculated separately according to the nature of the final decision and the date of service.

Why Is Consistent Case Law Important in Parental Abduction Cases Under the Hague Convention?

The effectiveness of the Hague Convention largely depends on consistent practice among the contracting states and on cooperation between them. ECHR case law is one of the most important tools enabling national courts to interpret the Convention’s concepts in a common way.

1. How Does Parental Abduction Affect Children and Parents?

Parental abduction has serious effects not only on children but also on parents. The main effects are:

• Loss of a parent: The child who is a victim of this act not only loses contact with the other parent but is also deprived of the love, affection and protection the child needs.
• New environment: The child is also uprooted from the home environment and faces a new culture, a different legal system, a different language and often a different social structure.
• Legal complexity: These differences make international child abduction cases complex and difficult to resolve, whether they occur during a marriage, in the process of divorce or after the separation; for this reason, in cross-border family law disputes, return, custody and contact claims should be assessed together.

2. How Successful Is the Hague Convention in Practice?

The Hague Convention generally works well in the contracting states, and according to the Hague Conference on Private International Law it has 103 contracting parties. The factors that determine its success and its limits are:

• Results and deterrence: The Convention contributes to the resolution of thousands of international abduction cases and sends a clear message that abduction harms the child’s right to maintain a relationship with both parents; the effectiveness of the measures for the child’s prompt return also gives the Convention a deterrent role in many other cases.
• Specific concepts: The Hague Convention adopts specific concepts such as habitual residence, rights of custody and grave risk for a particular purpose and requires these concepts to be understood and interpreted correctly.
• National differences: Its application in many contracting states inevitably reflects their national and cultural characteristics, and the structure of different legal systems will undoubtedly influence the interpretation of the Convention.
• Consistency and cooperation: The effectiveness of the Hague Convention’s rules on parental abduction largely depends on consistency in the practice of the contracting states and on cooperation between them; in this respect the Hague Convention operates as a treaty of judicial assistance.

3. Why Do Specialised Courts Matter for Hague Cases?

Concentrating Hague cases in a limited number of family courts with jurisdiction for specific regions, as in Germany, could make the return procedure faster and more effective. Specialised courts would allow judges to gain experience in interpreting the Hague Convention and applying its provisions technically, and would also create a significant opportunity for consistent case law in parental child abduction cases under the Hague Convention.

Furthermore, making the legislation and judicial practice of the contracting states accessible and maintaining effective communication will help to achieve consistency in practice and the effective functioning of the return procedure envisaged by the Convention. For international child abduction lawyers and family law lawyers in Turkey, following ECHR case law is decisive for building grave risk, settlement and rights-of-custody arguments correctly in return cases.

4. What Factors Ensure Consistent Case Law?

The main factors that ensure the consistent application of the Hague Convention in the contracting states, and their functions, are summarised below. When these factors work together, the return procedure can be completed at the speed the Convention envisages.