The European Court of Human Rights and the Hague Child Abduction Convention: Prioritising Return or Reflection?

Over the last four decades the 1980 Hague Convention has provided for the prompt return of children to their State of habitual residence. But now that wrongful removals and retentions are most often carried out by primary carers, the majority of whom will be mothers, the instrument has come under increasing scrutiny, not least from the European Court of Human Rights. This article analyses the Grand Chamber judgments in Neulinger and X v. Latvia and considers how compliance with Article 8 ECHR should be achieved in the application of the Hague Convention; prioritising return or reflection? In so doing it also reflects on whether a summary return mechanism can continue to accord with twenty-first century expectations and norms.


Introduction
For almost 30 years the rationale underpinning the 1980 Hague Convention on the Civil Aspects of International Child Abduction (hereinafter: 1980 Hague Convention), remained virtually unchallenged-wrongfully removed or retained children should ordinarily be returned to their State of habitual residence and their return should be achieved promptly to negate the harmful effects of the unilateral action. Return was considered moreover to be in the best interests of children for it would then allow the most appropriate forum to adjudicate upon their future. 1 Nevertheless it was acknowledged that in a limited number of cases a return might not be in the interests of the individual child and so exceptions were included which, if established, would afford courts a discretion as to how to proceed. 2 The policy of return was also viewed by the drafters of the Convention to be in the interests of children in general, for they envisaged this would deter unilateral action, 3 and of course it would provide an effective framework for children of divided international family units to retain contact with both parents. 4 For the Hague formula to work effectively and in accordance with the intention of its drafters an extensive and demanding series of requirements must be satisfied. In this, the necessity of expedition in all aspects of the pursuit and conduct of return proceedings is of central importance. 5 Convention hearings must not be transformed into a substantive examination of competing claims to custody, 6 given that they are simply to be an adjudication as to whether the child's State of habitual residence will be confirmed as the forum which will determine the child's future. 7 Moreover, the longer an abducted child spends in the State of refuge the more difficult any ultimate return. 8 Alongside the need for expedition, the drafters were clear that the instrument's limited exceptions would have to be interpreted strictly; were too liberal an interpretation adopted then the return remedy would be deprived of meaningful effect. 9 Conversely the same caveat could be extended to an overly strict application of the exceptions for then the Convention would risk falling into disrepute since children could be sent back in inappropriate situations. 10 The challenge in finding the correct equilibrium between the promotion of return and the protection of individual children has always been a very real one. Furthermore the difficulties have increased over the 35 years since the Hague Convention was adopted, for not only has the nature of child abduction changed beyond recognition, 11 but so has the prevailing legal landscape, whether in the positive obligations falling upon Council of Europe Member States through the interpretation that has been given to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter: ECHR), 12 or in the recognition of the rights and legal status of children, particularly after the adoption of the United Nations Convention on the Rights of the Child of 1989 (hereinafter: UNCRC). 13 It should not perhaps be surprising that courts in many jurisdictions have struggled to find an appropriate balance of the competing interests and objectives. 14 This in turn has given rise to complex issues as to how best interests should be determined, and whether a short, medium or long term perspective should be adopted. 15 Whilst there have long been examples of national courts showing particular flexibility in the application of the Convention or failing to adhere to the limitations of the summary return mechanism, sometimes in respect of particular categories of case, 16 and sometimes for sustained periods of time, 17 it has only been in the last decade that there has been a credible challenge to the prioritisation of prompt return in abduction cases. In its most radical manifestation the re-appraisal of child abduction methodology would in effect curtail the application of the summary return remedy where children were removed or retained by primary carer mothers. 18 Another position is that greater regard should be paid to the interests of abductors where domestic violence is at issue. 19 A further approach is to prioritise the interests of the individual abducted child to ensure that whatever the solution arrived at accords with his best interests. 20 13 In the United Kingdom, the Supreme Court has recognised in a Hague Convention case that children 'are quite capable of being moral actors in their own right'.  16 It has been held by the Polish Supreme Court that mothers and babies should not be separated: 7 October 1998, I CKN 745-98. 17 In France, in the early years of the application of the Hague Convention, the Cour de cassation regularly upheld a liberal interpretation of the Art. 13(1)(b), 1980 Hague Convention exception, see for example: Cass. Civ. 1ère 12 juillet 1994, Rev. Crit. 84 (1995), p. 96 note H. Muir Watt; JCP 1996 IV 64 note H. Bosse-Platière, Defrénois 1995, art. 36024, note J. Massip. 18 Judge Dedov in his dissenting opinion in Adžić v. Croatia, no. 22643/14, 12 March 2015 has held that the Hague Convention is not suited to situations relating to the end of family life and submits that the separation of a child under seven from his mother will always create a grave risk of harm as understood by Art. 13(1)(b), 1980 Hague Convention. Equally there have long been calls for the Convention not to apply to applications made by left behind fathers whose custody right is limited to a right of veto over the removal of the child from the jurisdiction, for example : Bruch (2004: Bruch ( -2005 20 For example in X v. Latvia [GC], no. 27853/09, (2014) 59 EHRR 100, Judge Pinto de Albuquerque, in his concurring opinion, at para. OI-8, argued: 'the sociological shift from a non-custodial abductor to a custodial abductor, who is usually the primary caregiver, warrants a more individualised, fact-sensitive determination of these cases in the light of a purposive and evolutive approach to the Hague defence clauses'.
Whilst certain academic commentators have called for reform, and there is a degree of repositioning in the manner in which the Hague Convention is applied in one long standing Contracting State, 21 it is the case law of the European Court of Human Rights (hereinafter: ECtHR) which has brought the modus operandi of the instrument to the fore. Much has already been written of the panoply of recent decisions, 22 especially the Grand Chamber rulings in Neulinger 23 and X v. Latvia,24 but in the present article, as well as dissecting the various majority and dissenting opinions, the focus will be on evaluating the judgments against the wider international family law context. In particular, what do the recent Strasbourg judgments indicate about the state of the Hague Convention, particularly its simple, procedural return mechanism and its transposition of the best interests paradigm? And, can a presumptive return mechanism continue to accord with twenty-first century expectations and norms?

Prioritising Return
The simplicity of the Hague Convention's summary return mechanism has long been lauded. 25 Technically, from the perspective of private international law, it was a great innovation but in its practical operation the instrument has not uniformly fulfilled expectations. The network of States Parties which is edging ever closer to 100, and includes many developing nations, is impressively large, 26 but return rates vary quite significantly, 27 delays are frequent even in advanced first world members of the network, 28 and almost every key provision of the instrument has given rise to 21 Switzerland, discussed below. 22 Keller and Heri (2015), p. 270. 23 Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, (2012) 54 EHRR 1087. 24 X v. Latvia [GC], no. 27853/09, (2014) 59 EHRR 100. 25 Anton (1981), p. 556. 26 Available at http://www.hcch.net/index_en.php?act=conventions.status&cid=24 (last accessed 31 August 2015). 27 The most complete statistical data is that compiled for the 6th Review Special commission: Lowe (2011a, b, c). From this data, analysing solely figures for litigation leading to judicial returns or judicial refusals, it can be seen that the overall judicial refusal rate was 286 (36 %). However, this masks considerable variations, both at regional and national levels. For EU States applying the Brussels IIa Regulation, the figure was 160 (38 %), but this masks a discordance between intra-EU cases 103 (34 %) and non-EU 57 (47 %). For Latin American States the figure was 54 (46 %) and for Australasian states it was 19 (29 %), though there was a major difference between intra-Australasian cases 9 (22 %) and non-Australasian requests 10 (42 %). The variance in judicial refusal rates at a national level is yet more pronounced: inordinate amounts of litigation, 29 sometimes with divergent interpretations emerging as between or even within Contracting States. 30 Where the drafters undoubtedly surpassed expectations however was in creating a new global orthodoxy as regards the treatment of unilateral removals and retentions. The prioritisation of return, the primacy of the child's State of habitual residence as the appropriate forum to adjudicate on the merits of underlying custody disputes, 31 and the promotion of expedition in decision making 32 have all become accepted as global principles and have influenced policy and practice outside the confines of the Hague regime. 33 In 2003 within the European Union, Member States agreed, some reluctantly, to take these principles further in an attempt to realise more effectively the objective of return. 34 And in Strasbourg the ECtHR has sought to respond to failings in individual abduction cases by recognising the positive obligations Article 8 ECHR imposes on States and in so doing has attempted to ensure compliance with appropriate minimum standards. 35

Hague Convention
The emphasis placed by the drafters on return was inspired by their perception of the substantive problem, as well as by their appreciation of the weakness of contemporary private international law remedies. 36 The removal or retention of children was largely viewed as an action by frustrated fathers who did not exercise a primary care role. 37 Thereby in promoting return children would not only be going back to their home environment but to their primary carer. In such circumstances the drafters' use of the expression the restoration of the status quo ante can be fully understood. 38 At the same time the drafters recognised that the harmonisation of 29  jurisdiction rules would not be feasible and that recognition and enforcement would be neither viable-as an order might not exist, or if one did, might not reflect the realities of the child's life-nor practicable given the delays which might entail at both stages of the process. 39 Once the summary return mechanism began to emerge it can also be understood why the drafters acted with such vigour and determination to ensure that it would be applied in the most optimum fashion. 40 This was because if the clock could be turned back quickly then the child could in theory resume his previous life with the minimum of disruption. 41 The clauses, strategies and techniques employed in and around the Hague Convention to prioritise return are well known and need not be rehearsed in detail here. 42 They are found throughout the instrument, from the creation of the Central Authority system, 43 to the emphasis placed on expedition, 44 and the breadth of the summary return mechanism, through the wide scope afforded to custody rights. 45 The objective is equally supported by the Explanatory Report, most notably in seeking to ensure that the exceptions to return are interpreted restrictively. 46 In practice however, as the statistical returns for 2008 have shown, this has not uniformly been achieved, and even where returns have been ordered it has rarely been possible to meet the time limits envisaged in Article 11 of the 1980 Hague Convention. A particular challenge for the Convention has been the manner of its implementation. Understandably, particularly for a global instrument of its time, Contracting States enjoy procedural autonomy in the conduct of return proceedings. 47 Inevitably therefore there are significant differences in practice, whether in the treatment of evidence, 48 the conduct and indeed types of appeal which may be permitted, 49 as well as regards the enforcement of return orders. 50 Good practices 39 Beaumont and McEleavy (1999), pp. 19-21. 40 Anton (1981) 44 Reference can be made to the general requirement in Art. 2, 1980 Hague Convention, the specific obligation for judicial or administrative authorities in return proceedings in Art. 11, as well as repeated references to prompt return in the Preamble, Art. 1, and Art. 7. There is equally the requirement for central authorities to transmit applications without delay in Art. 9, and of course the Art. 11(2) mechanism whereby an explanation can be sought where a decision has not been reached within 6 weeks. 45 Beaumont and McEleavy (1999) have been shared by the Hague Conference, and reforms and improvements have occurred, of which one of the most notable has been in the concentration of jurisdiction in certain States, thereby reducing the number of competent courts and building expertise amongst judges. 51 But at the start of the twenty-first century the real drive for reform and the prioritisation of return was coming, albeit in different ways, from Brussels and Strasbourg.

European Union
The Europeanization of child abduction law was highly controversial, for the political as well as the practical implications. 52  residence, 61 which should moreover avoid divergent assessments by the requested court, where the child is actually present. 62 But whilst the mechanism has been found to comply with the obligations of Article 8, 63 through the application of the Bosphorus principle of equivalent protection of fundamental rights, 64 in practice this attempt to prioritise return does not appear to have delivered the expected dividend for the European Union. There have been many high profile examples where the new rules have failed to operate as intended, 65 or indeed have been ignored entirely. 66 And preliminary findings from an empirical study indicate that in practice the child is rarely returned to the State of origin under the Article 11(8) mechanism. 67

European Court of Human Rights
In the first decade of the twenty-first century, after holding that the positive obligations Article 8 places on Council of Europe States in the matter of reuniting a parent with his or her child must be interpreted in the light of the Hague Convention, 68 the ECtHR's engagement with the 1980 instrument soared. 69 The applications coming before the Strasbourg Court highlighted many of the procedural failings existing in a wide range of European States which were undermining the effective application of the Hague Convention and the return of children. The ECtHR found there to be positive obligations on States to: apply the Hague Convention in an effective manner; 70 make adequate and effective efforts to enforce a left behind parent's right to the return of his child as well as the child's right to be reunited with the left behind parent; 71 interpret provisions in accordance with international norms; 72 and to take all necessary steps to facilitate the enforcement of Hague Convention return orders. 73 And, in some instances, this has led to general measures being taken by States to prevent the recurrence of violations similar to those found by the Court. 74 Alongside such support for the practical operation of the Hague Convention, 75 the ECtHR was equally fulsome in upholding the instrument's rationale and return agenda. This was exemplified in the case of Maumousseau and Washington v. France 76 where a primary carer mother complained that the interpretation given by the French courts to the grave risk of harm exception in Article 13(1)(b) of the Hague Convention had been too restrictive and that her daughter's best interests had not been considered completely. The Court held that it was entirely in agreement with the philosophy underlying the Hague Convention, namely deterring the proliferation of international child abductions, restoring the status quo ante and leaving the issues of custody to be determined by the courts of the child's habitual residence. 77 It accepted that the exceptions were to be interpreted strictly and added that were the mother's arguments to be accepted, then both the substance and primary purpose of the Hague Convention would be rendered meaningless. 78 The Court was satisfied therefore that the child's 'best interests', which lay in her prompt return to her habitual environment, had been taken into account by the French courts. 79 Encouraging as this reasoning was for supporters of the Hague Conference, Maumousseau did prove to be the high water mark for the Court's unrestricted prioritization of return.

Prioritising Reflection
Faced with a factual situation where one adult can, prima facie, be portrayed as a wrong-doer and another as a victim, 80 as well as a legal framework which at every level appears to caution against: the subversion of the primary objective of return; 74 77 Ibid., at para. 69. 78 Ibid., at para. 73. 79 Ibid., at para. 75. 80 The stereotypical characterisation of an abduction may not of course reflect the realities of the family situation, for example where a primary carer mother is fleeing from extreme domestic violence. And  the manipulation of processes and evidence by abductors; and the conflation of return proceedings with those on the merits; then it can be understood how some courts and policy makers have struggled to achieve an appropriate balance between furthering the interests of children in general and protecting the interests of individual abducted children. And moreover, that courts in some common law jurisdictions might appear to have veered instinctively towards conformity and the apparent simplicity afforded by an order for return.
For all the emphasis on return, it is not automatic as between Hague Contracting States or even, at least yet, as between those EU Member States which are subject to the Brussels IIa Regulation. Indeed an order for non-return in appropriate cases is not in any way a failure, but rather the Convention operating as intended. 81 The challenge for courts in abduction situations is how to align the objectives of the Convention with the contemporary profile of abduction cases, where it is the actions of primary carer mothers which are most often at issue, where a return will not be restoring the status quo ante in a literal sense, and where the mother may not have strong connections to the child's State of habitual residence and may face financial challenges there. 82 In addition, in many Contracting States regard must increasingly be paid to the views of all capable minors and not simply to the objections of older children. Furthermore courts must respond to the requirement for expedition in the conduct of return proceedings, whilst ensuring due respect for procedural fairness.
It is against this context that there is fertile ground for critics of the Hague approach and its emphasis on return and the interests of children in general. However, before considering the most recent case law of the ECtHR in which such criticism has been given expression, regard must be given to the scope which already exists to gain more detailed information about the individual child within the 1980 Convention, as well as the potential for bespoke solutions which exists through the Brussels IIa Regulation.

1980 Hague Convention
The entire ethos of the Hague Child Abduction Convention, as reflected in its structure and drafting, as well as in the travaux préparatoires and its subsequent interpretation by most courts in English speaking jurisdictions, is such that the prioritisation of reflection on the situation of the individual child both appears, and is understood, as being limited. Nevertheless, scope actually exists within the Convention for greater regard to be paid to the situation of individual abducted children, and steps have been taken in certain jurisdictions, through case law and legislation, to ensure that the policy of return does not prevail to such an extent that inappropriate outcomes occur.

A Hidden Mechanism for Greater Reflection
Whilst its material scope is wide, the third paragraph of Article 13 has been little used or considered, indeed it might even be said to be hidden in plain sight. Focussed upon 'information relating to the social background of the child', it affords the relevant authorities an apparently unfettered discretion to consider and evaluate issues relevant to the individual child where the Article 13 exceptions are engaged. 83 There is no limitation to situations where a court is exercising its discretion where one of the five exceptions has actually been established, 84 and once the information is provided by the competent authorities in the child's home State, there is an obligation that it be taken into account. 85 For all its breadth, the practical impact of the paragraph has though largely been nullified by the ambiguity surrounding its operation. Whilst provision of the background information must be by the authorities of the child's State of habitual residence, there is no obligation on those authorities to so act, nor a corresponding requirement or even entitlement for the authorities in the requested State to seek such information. 86 And so whilst information must be considered where provided, there is no actual mechanism in Article 13(3) ensuring its generation.
A better understanding of this somewhat incongruent construction is provided by the terms of Article 7(d). This general provision outlining co-operation between Central Authorities which creates an obligation to take all appropriate measures to exchange information on the social background of the child, is limited to situations where this is deemed 'desirable'. Leaving to one side whether this implies a shared view on the part of the two authorities concerned, it does reflect, in a more explicit manner, the ethos of the Convention as a whole, one in which concentration on the individual child is treated as the exception and not the rule. 87 The potential of the provisions have though been embraced in a more positive, child-centric sense in one English speaking jurisdiction with the Constitutional Court of South Africa recommending that the country's Central Authority-the Office of the Family Advocate-liaise, 'where possible' with the corresponding body of the requesting State. 88 Indeed the Court held that it would be 'reasonable to expect the Family Advocate to initiate the exchange of information and provide the results of those inquiries to the courts'. 89 Ibid. further noted that where one of the exceptions was at issue it would be helpful for the requesting Central Authority to furnish any relevant information relating to the circumstances of the child.
Elsewhere courts have generally been more circumspect. In other Anglophone Contracting States there has only been isolated consideration of the provision, 90 with the possibility for delay highlighted, 91 it has though been considered by appellate courts in continental European jurisdictions. 92 Indeed it was recorded in the Grand Chamber ruling in Neulinger that the Swiss appellate court had used the provision to direct specific questions to the requesting Central Authority as to how the child would be cared for if returned to Israel. 93 However, following the position taken by the Grand Chamber in X v. Latvia, that courts must satisfy themselves that adequate safeguards are provided in the State of origin, 94 it may in the future assume much greater importance.

Recalibration through Case Law and Domestic Statute
The very low rates of judicial refusals in anglophone jurisdictions have previously been noted. 95 Indeed at one time English courts were so conscious of the importance of ensuring the exceptions were applied strictly that a reference to it only being in 'exceptional cases' where a return should be refused, 96 evolved into an additional test of exceptionality. 97 But just as a lax interpretation would subvert the objectives of the Convention, so would one which was excessively strict. The need for correction was quickly recognised, for as Lady Hale noted, an appropriate application of the Convention did not demand that the exceptions never be upheld. 98 In Re M after rejecting any test of exceptionality, she held that the circumstances in which return may be refused were themselves exceptions to the general rule: 'That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention'. 99 This recalibration in the application of the exceptions is in line with the approach adopted by leading courts in other common law Contracting States. In DP v. Commonwealth Central Authority 100 the High Court of Australia rejected a view that a narrow construction should be given to the grave risk exception, noting simply that 'The exception is to be given the meaning its words require'. The Constitutional Court of South Africa has reacted similarly noting that: 'The paramountcy of the best interests of the child must inform our understanding of the exemptions without undermining the integrity of the Convention'. 101 In Switzerland a more formalised approach has been adopted, to respond essentially to situations involving primary carer abductions effected by vulnerable mothers where their return is not an option and where their children would be placed in care if sent back. 102 Under a statutory rule, if three cumulative criteria are satisfied in such circumstances, then an intolerable situation will be deemed to exist for the purposes of Article 13(1)(b) of the Hague Convention. 103

European Union
In the light of the primary emphasis of the revised rules on child abduction, in reinforcing return and the control exercised by the Member State of the child's habitual residence, it might be questioned whether there could be any scope for prioritising reflection in the conduct of European abduction proceedings. But there is indeed potential for this to be achieved, albeit indirectly. First, alongside the more exacting rules applicable to intra-EU removals and retentions are provisions which ensure compliance with fundamental rights as contained within the EU Charter. 104 And so a court cannot refuse to return a child unless the applicant has been given an opportunity to be heard, 105 and when applying Articles 12 and 13 of the Hague Convention, the child must be given the opportunity to be heard, unless this appears inappropriate having regard to his or her age or maturity. 106 Whilst these may open the door to greater reflection on the situation of the individual child and the most 99  appropriate outcome, other avenues will depend on the motivation of the relevant judicial and administrative authorities. 107 Under Article 11(4) of the Brussels IIa Regulation a return cannot be refused on the basis of Article 13(1)(b) if it is established that 'adequate arrangements have been made to secure the protection of the child after his or her return'. The Regulation does not specify how this is to be achieved or indeed where the burden lies, but the opportunity is there for cooperation to ensure effective protective measures are put in place. 108 It is to be noted that in the expanded, 2015 version of the Commission's Practice Guide for the Application of the Brussels IIa Regulation, 109 it is put forward that the mere existence of protective procedures in the Member State of origin is not sufficient, rather 'it must be established that the authorities in the Member State of origin have taken concrete measures to protect the child in question'. 110 Were measures put in place through the forthcoming revision of the Brussels IIa Regulation to give effect to this guidance, this would mark a significant step forward, both in protecting children and facilitating safe returns. Integrated solutions which ensure that the best interests of the individual child are secured can also be achieved where courts respond positively and cooperate where the Regulation's Article 11(8) is activated where a non-return order is issued under Article 13 of the Hague Convention. 111 Unfortunately current evidence does not indicate that this is regularly being achieved. 112

Neulinger v. Switzerland
The re-alignment in the ECtHR's position such as to place increased emphasis on the situation of the individual abducted child rather than the policy of return, stems from the remarkable Grand Chamber ruling in Neulinger, 113 although its roots may be found in earlier dissenting opinions, notably that of Judge Zupančič in Maumousseau. 114  One issue free from doubt was that by July 2010 the facts of the case had become exceptional, and of a nature that would surely have been beyond the contemplation of the Hague Convention's drafters. 121 Moreover it was the Strasbourg processes themselves which were in large measure responsible for this exceptionality, at least in respect of the extreme delays. 122 The child, then aged 7, had been in the State of refuge, Switzerland, for 5 years, 3 awaiting the conclusion of his and his mother's ECHR application; he had not seen his father during that time, the latter having made no attempt to establish contact; 123 and prior to the wrongful removal the father's contact had been limited by the Israeli courts to twice weekly and on a supervised basis. 124 That the enforcement of the child's return after such a period of time and in such circumstances was undesirable, and would have breached his rights under Article 8 ECHR, could hardly be regarded as controversial.
The controversy and harm lay rather in the manner in which this conclusion was reached. As noted the Court had previously provided unstinting support for the Hague Convention and its objectives of return and deterrence. Now  with the challenge of a difficult case, it placed particular emphasis on the rights of the individual child and Article 3(1) UNCRC, but without overt indication that its comments were not intended to be of general application in each and every child abduction case. There are many elements of the majority opinion which might prima facie suggest that the Court was reversing its previous position, certainly if these were to have general application. But almost hidden in the shadows of those startling statements are sufficient indicators to justify the position of Judge Costa that the Court was not embarking upon a wholesale revision in the interpretation and application of Article 8 ECHR in Hague Convention cases. Nevertheless, Neulinger has acted as the catalyst for the international child abduction human rights debate to be re-framed and, X v. Latvia notwithstanding, it has created the conditions, sometimes taken, 125 sometimes not, 126 for Chambers of the Strasbourg Court to stray some distance from the spirit of the Hague Convention.  (2015), pp. 3 et seq., where it is argued that the distinction between 'direct' and 'indirect' measures concerning a child should not merely concern the weight to be accorded to best interests-the 'determining' consideration as opposed to the 'primary' consideration-but also the structure of the reasoning employed. In 'indirect' cases the focus should be 'on reaching the ''best'' solution to the issue to be decided' rather than on determining which outcome will be best for the individual child. See also Fiorini (2016 133 If the fact of the Grand Chamber's reference to Article 3(1) was not remarkable, then the manner in which it was done, and the interpretation afforded to 'best interests', certainly were.
3.3.1.1 Presentation of Article 3(1) UNCRC In accordance with convention, reference was made to 'Relevant Domestic and International Law and Practice' immediately after consideration of the facts of the application. 134 In this the starting point for the Neulinger majority was not the Hague Child Abduction Convention, as had occurred in the Chamber ruling 135 or in the Maumousseau judgment, 136 but the UNCRC. 137 On its own one might question whether any significance, symbolic or other, should be drawn from such a difference in ordering, 138 given the Court had not been consistent in this regard. 139 But there were factors more clearly indicative of a change in approach. First, the provisions of the UNCRC were announced by an explanatory subtitle: 'A. Protection of the rights of the child'. Never before had such a subtitle been incorporated within any ECtHR judgment, 140 a not insignificant fact given the propensity for the near formulaic repetition of phraseology and legal explanations in Strasbourg case law. Second, the presentation of the articles of the UNCRC only included the Preamble, as well as Articles 7, 9, 14 and 18, with Article 3(1) mentioned thereafter. 141 Whilst the Grand Chamber quoted from the Committee on the Rights of the Child that the UNCRC 'must be considered as a whole, with the relationship between the various articles being taken into account', 142 it made no reference to the key provision, Article 11, whereby States Parties shall take measures to combat the illicit transfer and non-return of children abroad, and promote the conclusion of bilateral or multilateral agreements or accession to existing agreements, or indeed Article 41, which provides that nothing in the UNCRC 'shall affect any provisions which are more conducive to the realization of the rights of the child and which may be contained in: (a) The law of a State party; or (b) International law in force for that State.' The omission of Article 11 in the Grand Chamber judgment, even if it was not referred to by the Chamber, is particularly noteworthy not only for its relevance but since it was the only UNCRC provision cited in such key early Hague cases as Iglesias Gil and AUI v. Spain 143 and Maire v. Portugal, 144 as well as in the non-Hague Convention case of Bajrami v. Albania. 145 Taken together, these elements would suggest that even if the Grand Chamber was not seeking to establish a hierarchy of norms with the UNCRC at its pinnacle, 146 it was at the very least framing the international legal order relevant to the interpretation of Article 8 so that the Hague Convention and its primary goal of return was not to be prioritised with the same vigour as had previously occurred.

Consideration of Best Interests
In the light of the consistency of the judgments which had been handed down since Ignaccolo Zenide 147 in supporting the effective operation of the Hague Convention, as well as the accompanying analysis by the Chamber in Neulinger and Maumousseau, it might have been anticipated that the Grand Chamber in its first child abduction ruling would have acknowledged the rationale underpinning the 1980 Convention, before considering how a return to Israel might impact upon the Article 8 rights of a child who had by then been living in Switzerland for 5 years. Not only did this not happen, but the analysis of the Court to the issue of 'best interests' was at best superficial, if not misleading. 148 In section II.A.2 the indeterminacy of the best interests standard was acknowledged but with no consideration of how child abduction fits within the UNCRC framework as a whole. 149 Instead the Grand Chamber followed the bare reproduction of ten Hague Convention articles, 150 and relied upon an assertion that courts of last resort in France, Finland and the United Kingdom had 'expressly incorporated the concept of the ''child's best interests'' into their application of the 142  [Art. 13(1)(b)] exception'. The justification for this submission, based on limited summaries and isolated quotes, is scarcely convincing. The House of Lords judgment which was cited, Re D (A Child) (Abduction: Rights of Custody), 151 certainly bore factual similarities to Neulinger, insofar as extreme delays had led to the child spending almost 4 years in the State of refuge before the final hearing, but the appeal itself turned on the interpretation of Articles 3, 5 and 15. Consideration was given obiter to the role of the exceptions by Lady Hale, but not only did she acknowledge the guidance in the Pérez-Vera Explanatory Report that the exceptions should be applied restrictively, 152 but that the authorities of the requested state were: 'not to conduct their own investigation and evaluation of what will be best for the child. There is a particular risk that an expansive application of article 13(b), which focuses on the situation of the child, could lead to this result.' 153 Whilst she accepted that a restrictive application of Article 13 did not mean the exceptions should never be applied at all, and that extreme delay would be a factor in ascertaining whether a child would be exposed to a grave risk of an intolerable situation if sent back, these findings do not equate with the sweeping conclusion drawn by the Grand Chamber on the basis of a short quotation from Lord Hope. 154 In stating that it was 'impossible to believe that the child's best interests would be served by his return forthwith to Romania' 155 the latter was making a general observation, related to the delays encountered in the return application. It neither justifies the interpretation given by the Grand Chamber, nor, in the light of Lady Hale's leading judgment, does it represent the manner in which the House of Lords perceived the exceptions to return in general.

Article 8
The primary focus for the Grand Chamber was whether the interference in the family life of the child and mother as understood by Article 8 ECHR was 'necessary in a democratic society', 156 it clearly being 'in accordance with the law', since it pursued the legitimate aim of protecting the rights and freedoms of the child and his father. 157 In keeping with Strasbourg methodology, the assessment of the applicable 'General Principles' contains similarities with earlier rulings, for example in Neulinger itself, as well as Maumousseau. And so the 'decisive issue' as to whether a fair balance had been struck between 'the competing interests at stake-those of the child, of the two parents, and of public order-' and whether this was within the margin of appreciation afforded to States, was 151  replicated almost verbatim from the two judgments which had provided the greatest support for the Hague Convention. 158 Thereafter the Grand Chamber clearly parted company in its reasoning, affirming that the 'child's best interests must be the primary consideration' in the balancing exercise. 159 In this it sought to rely on the general statement in the Hague Convention's Preamble, although the latter is explicit in stating that it is the interests of children which are of paramount importance in matters relating to their custody. However, it then went further still, noting that there was a broad consensus, including in international law, that 'in all decisions concerning children, their best interests must be paramount'. 160 Somewhat generously, Lady Hale subsequently described this as 'putting matters a little too high', 161 for while it may be the case in substantive domestic family law, 162 it most certainly is not in international family law and is not supported by the references used by the Grand Chamber to Article 3(1) 163 or Article 24(2) of the EU Charter. 164 As noted by the Supreme Court in ZH (Tanzania) v. Secretary of State for the Home Department: 'despite the looseness with which these terms are sometimes used, ''a primary consideration'' is not the same as ''the primary consideration'', still less as ''the paramount consideration'''. 165 The significance of subjecting Hague abduction cases to the paramountcy standard cannot be overstated, were it to happen it would represent the end of the 1980 Convention as a meaningful remedy, because the return hearing would simply be transformed into a substantive assessment of the merits-the antithesis of what the instrument stands for. 166 Why such formulations were used by the Grand Chamber is unclear, particularly in the light of the comments subsequently made by the Court's President. 167 It should perhaps be concluded that this was no more than an infelicitous error in drafting. Certainly, as noted above, loose language is not uncommon in ECtHR judgments. 168  coherence in paragraphs 134-136 since the supporting case law which is cited reflects a more nuanced interpretation of the best interests standard, than either 'the primary' or the 'paramount' standards. For example, when quoting from its judgment in Sahin v. Germany, 169 a decision on contact, the Grand Chamber highlighted that 'the child's best interests may, depending on their nature and seriousness, override those of the parents'. 170 Such reasoning sits comfortably with an orthodox application of the Hague Convention, 171 and the Hague Convention's philosophy of return, which was acknowledged by the Grand Chamber, but only in a single sentence. 172 This pattern has not escaped judicial attention in the United Kingdom, either in general or in respect of Neulinger in particular. In S v. L (No 2) 173 Lord Carnwath, acknowledging the 'slightly different formulations and different shades of emphasis' in ECtHR judgments, 174 held that the search for undue precision in this area of the law was inappropriate. He added that whilst Neulinger, as a Grand Chamber judgment would normally be treated as having greater authority, paragraphs 134-136 'were largely designed to summarise earlier authority, and on examination, and in the light of their treatment in later cases, cannot bear the formulaic significance attributed to them by the appellant's submissions'. 175 The role of the academic commentator is though different to that of counsel litigating an individual case. Whilst it may indeed not always be appropriate to overemphasise subtle changes in drafting, it is essential to look for broad patterns and so to assess the direction of travel in which the Court is moving. In this regard, whatever doubts might surround the internal consistency of the Grand Chamber ruling in Neulinger, the overall effect of its drafting was to re-align the Strasbourg Court's bearing in the application of Article 8. 176 If contrast were needed it is provided by the judgment in Maumousseau where the best interests of the individual child were seen by the majority from the perspective of the child's right not to be unilaterally removed or retained by a parent. 177 As regards the Preamble, the reference to the best interests of children was contextualized, with it noted that Contracting Parties sought to protect children from the harmful effects of their 169  wrongful removal and retention and to establish procedures to ensure their prompt return to their State of habitual residence. 178 In Neulinger the concentration on the individual child was further compounded by the manner in which the Grand Chamber advocated that the child's Article 8 rights be respected. To this end the child's best interests were to be assessed in 'each individual case', albeit subject to States' margin of appreciation, 179 and domestic courts were to conduct: '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 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.' 180 This most infamous passage of the Grand Chamber judgment was not however new, the same text is found in Maumousseau. 181 Crucially however, in the Grand Chamber's presentation of the relevant 'General Principles' it was transformed from an observation, essentially one in support of the position of the French courts in rejecting the application of the Article 13 exceptions, into an apparent obligation, of general application, to ensure fairness in the decision-making process. 182 Whilst the potential impact of this statement was subsequently acknowledged by a different formation of the Grand Chamber in X v. Latvia, 183 Judge Costa had sought to downplay its significance, remarking in 2011 that it was 'made in the specific context of proceedings for the return of an abducted child'. 184 Although prima facie surprising, a case can be made for this restrictive interpretation. In this it is crucial to note that the Grand Chamber majority had accepted, 185 although not without hesitation, 186 that the Swiss return order was within the margin of appreciation afforded to the Federal Tribunal. 187 The principles the ECtHR had enunciated were therefore applied in respect of subsequent developments, 178 Ibid., at para. 68 139 'may and has indeed been read as suggesting that the domestic courts were required to conduct an indepth examination of the entire family situation and of a whole series of factors'. 184 Costa (2011). 185 Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, (2012) 54 EHRR 1087, at para. 145. 186 The scale of the hesitation is quantifiable in that 5 members of the majority expressed disagreement with this position in concurring or separate opinions: Judges Lorenzen, Kalaydjieva, Jočiene, Sajó and Tsotsoria. 187 It may also be noted that the Grand Chamber did not demur in the finding that the removal of the child to Switzerland was wrongful, at paras. 99-105. specifically at what would be the time of enforcement. 188 It was in this context therefore where the Grand Chamber concluded that were the child to be sent back then his rights, and those of his mother, would be breached. 189 This disaggregation of the return order from its subsequent enforcement is significant. Enforcement, which has given rise to difficulties in many Council of Europe States, is not a matter governed by the Hague Convention, rather it is a matter for the national law of each State Party. And whilst the ECtHR has done much to support effective enforcement mechanisms and procedures, 190 it did recognise at a very early stage that 'a change in the relevant facts may exceptionally justify the non-enforcement of a final return order'. 191 The 'General Principles' as set down by the majority may not have had enforcement at their core, but this was the issue on which they ended and where a large passage from Maumousseau was quoted. 192 It was moreover immediately after the reference to an 'in-depth examination'. 193 Against this context Judge Costa's defence of Neulinger can certainly be understood a little more clearly. Furthermore, contemporaneous support that the majority was not seeking to depart wholeheartedly from the Court's previous case law can also be derived from some of the concurring opinions. Judge Lorenzen, who was joined by Judge Kalaydjieva, in finding that the Swiss Federal Court had not assessed Article 13 properly, so that there would be a violation of Article 8 irrespective of any subsequent developments, 194 highlighted the unique circumstances of the case. And notwithstanding that he had gone further than the majority opinion, he clarified that he was not casting doubt on the Hague Convention, nor questioning 'the application of that convention in this Court's case-law to date'. 195 He further added that the refusal to return the child would not undermine the normal application of the Hague Convention. For his part, Judge Cabral Barreto, who sought to identify the safeguards which would allow for the child's return without entailing a violation of Article 8, affirmed that he was against anything that could be seen as amounting to acceptance of attitudes that would result in the Hague Convention 'becoming a dead letter'. 196

Reaction in England & Wales
In England appellate courts acted promptly in curtailing any potential Neulinger effect in the interpretation and application of the Hague Convention.
In Re E (Children) (Abduction: Custody Appeal) 197 the family law specialists on the Court of Appeal panel simply did not accept that a fundamental change of approach had been intended. Black LJ noted that there had been nothing explicitly disapproving of Maumousseau in the majority judgment, 198 and that it would be 'extraordinary' if paragraph 139 contemplated a radical departure from Hague Convention practice. 199 Aikens LJ however relied upon a more technical approach to negate the effect of the 'in-depth examination' standard. In this he held that the ECtHR was not a tribunal whose function was to interpret Hague Convention provisions, rather it was only if a domestic court was alleged to have violated the ECHR in its interpretation of the Hague Convention that the latter must be considered, 200 but in so doing the ECtHR would be concentrating on the relevant ECHR Article and not the interpretation of the Hague Convention. 201 This also found favour with the Supreme Court, 202 which after explaining how the Hague Convention was devised with the best interests of individual abducted children, as well as of children generally, as a primary consideration, was happy to accept the explanation of Judge Costa as regards Neulinger. Delivering the judgment of the Court, Lady Hale and Lord Wilson also noted that a return which was not ordered mechanically or automatically, but rather examined the particular circumstances of the particular child, was 'not the same as a full blown examination of the child's future'. 203 And, if properly applied, it would be unlikely that the Hague Convention would lead to a violation of Article 8 rights, whether of the child or either parent. 204

Post Neulinger Case Law
The fallout from Neulinger may have been successfully contained in the United Kingdom, but in Strasbourg the situation was quite different, serving only to increase the confusion and debate as to how the Court perceived the relationship between Article 8 and the Hague Convention. On the one hand there was a series of decisions on admissibility, rejecting applications by abducting mothers and children where it was argued that return orders had breached their Article 8 rights. 205 Whilst these made due reference to Neulinger, in contrast to the Grand Chamber majority judgment the spirit and rationale of the 1980 Convention were also fully embraced. And so, for example, in MR v. Estonia 206 the First Section acknowledged the Hague Convention's return presumption, as well as the necessity for a strict interpretation of the exceptions. 207 Furthermore the necessity for expedition was re-affirmed and it was decided that return proceedings were not meant to determine the merits of the custody issue. 208 This apparent re-avowal of the Court's traditional interpretation of Article 8 vis-à-vis international child abduction, 209 which had so re-assured the Court of Appeal in Re E, 210 was though off-set by notable Chamber judgments in which the 'in-depth examination' standard was applied in a more literal sense.
Whilst on one occasion this was used to establish that the decision-making process leading to the establishment of the Article 13(1)(b) exception had been flawed, 211 it has more commonly been associated with non-returns. In X v. Latvia 212 the Chamber referred to an in-depth investigation as being a 'duty', 213 as well as emphasizing the 'paramount interests' 214 of the child when finding that the interference in the family life of the child and abductor brought about by the return order to be disproportionate. In reaching this conclusion, and finding a breach of Article 8, the Chamber noted, inter alia, that national courts must pay due respect to the 'arguable claims' brought by the parties in the light of Article 13(1)(b), to ensure that a return was in the child's best interests. Furthermore, the Latvian court should have assessed whether there were sufficient safeguards to render the child's return to Australia in her best interests. 215 In B v. Belgium 216 the Court, although it did acknowledge the modalities and principles underpinning the Hague Convention, upheld the complaint of the abductor and child who argued that the Court of Appeal of Ghent had neither examined the entire family situation in sufficient depth, nor treated the child's best interests as paramount. 217 The Court highlighted the Court of Appeal's failure to verify itself the reality of the risks of the child being exposed to an intolerable situation, as set out in the psychological reports submitted by the mother; 218 the fact it did not base its decision on the consideration that there were no grounds objectively justifying the mother's refusal to return, but simply proceeded on the basis that it was most unlikely the mother would go back to the United States where she risked imprisonment and the loss of parental authority; and that the time the child had spent in Belgium should have been taken into account to consider more deeply the actual implications of a return order. The Court concluded that the Court of Appeal had not therefore been in a position to determine whether there was a risk within the meaning of Article 13(1)(b), and that the decision-making process had not met the procedural requirements inherent in Article 8, thereby the latter article would be breached if the return order were enforced.
The difference in emphasis in these majority rulings, 219 as well as the manner in which the Chambers embraced their task, is clear and shares none of the ambiguity which shrouded the approach of the Grand Chamber in Neulinger. 220 The response from the United Kingdom Supreme Court to the Latvia Chamber ruling was direct and uncompromising, 221 whilst extremely forceful dissenting opinions, recognizing this state of affairs, were handed down in both the Latvia and Belgium cases. 222 In the latter, Judges Berro-Lefèvre and Karakaş held that the majority had disregarded its own guidance 223 in simply substituting its own conclusions on the best interests 217 Ibid., at para. 66. As in Neulinger, see above n. 122, the Court, at paras. 35-41, exercised its discretion under Art. 39 of the Rules of Court to grant interim measures, which led to the return order being stayed. 218 Ibid., at para. 72. The Chamber further noted that the Public Prosecutor's Office had recommended such an independent evaluation. Such verification was endorsed by the Grand Chamber in X v. Latvia  222 Additionally, an extremely thoughtful and considered concurring judgment was provided by Judges Tulkens and Keller, in the Belgium case, explaining their support for the majority and seeking to promote conciliation between the different views expressed. This is considered below. 223 B v. Belgium, no. 4320/11, 10 July 2012, at paras. 59-60.
The ECtHR and the Hague Child Abduction Convention 391 of the child, and by acting effectively as a court of fourth instance. They expressed concern that what they described as the exceptional outcome in Neulinger was becoming the rule and cautioned that the detailed reasoning of the Ghent Court of Appeal should not have been regarded as arbitrary because the Strasbourg Court happened to have reached a different view, one that was based moreover solely on the papers. Pointedly, they further recognized that requiring an in-depth review of the whole family's situation would indeed nullify the distinction between return proceedings and substantive custody hearing, and ultimately void the Hague Convention of its primary purpose. 224

X v. Latvia-A Re-appraisal by the Grand Chamber?
When the X v. Latvia Chamber ruling was referred to the Grand Chamber it may reasonably have been anticipated that certainty, in one direction or another, would finally return. However, after a seemingly interminable wait for judgment of 13 months, 225 the outcome was quite different. 16 of the 17 judges may have agreed on the general principles to be applied in cases of child abduction covered by the Hague Convention, 226 and in this the primary doubts surrounding the Neulinger judgment were ostensibly laid to rest, 227 but they split equally on how those procedural standards should be applied to the facts of the case. The obvious advantage of common principles was therefore lost since they were immediately applied in diametrically opposed ways. And so, as subsequent case law has proved, the divisions in Chamber rulings have merely been perpetuated.

A Restatement of General Principles
During the long gestation period the presentation and construction of the Grand Chamber judgment were perfected, and on this occasion no overt perception could arise that the standing of the Hague Convention was in any way being downgraded or marginalised. In the exposition of 'Law and Practice', the 1980 instrument was cited first and contextualized, with detailed reference to the Explanatory Report, 228 as well as more recent Guides to Good Practice. 229 In the Court's assessment of the applicable 'General Principles' it first re-affirmed how treaty commitments entered into by a State subsequent to the entry into force of the ECHR in respect of that State may engage its responsibility for ECHR purposes, but then, in a first step towards repairing the self-inflicted damage caused by Neulinger, it recalled that diverging commitments must be 224 They also underlined that the grave risk of harm envisaged by Art. 13, 1980 Hague Convention should not only be based on separation from the abducting parent. 225 The hearing took place on 10 October 2012, with the judgment delivered on 26 November 2013. 226 The 17 th member of the panel, Judge Pinto de Albuquerque, delivered a concurring opinion, but held, at para. OI-2, that he disagreed with the 'equivocal principles' set out by the majority at paras. 105-108. 227  harmonised as far as possible so that they produce effects that were fully in accordance with existing law. 230 Turning specifically to child abduction, the Court reiterated that Article 8 'must be interpreted in the light of the Hague Convention' as well as the UNCRC and relevant principles of international law. 231 Again it cautioned against conflict between treaties and held that the ECHR should be interpreted and applied in a manner that rendered its guarantees practical and effective. 232 In presenting the balancing of the competing interests at stake, the Grand Chamber amended its reference to the best interests of the child, noting that these must be 'of' primary consideration, rather than 'the' primary consideration. 233 But it is of much greater significance that in a clear attempt to move away from the ambiguity of its previous ruling, it added that: 'the objectives of prevention and immediate return correspond to a specific conception of ''the best interests of the child'''. 234 The Hague philosophy was then explained and accepted, 235 with the Grand Chamber providing the explicit confirmation, absent in Neulinger, that a child's best interests: 'cannot be understood in an identical manner irrespective of whether the court is examining a request for a child's return in pursuance of the Hague Convention or ruling on the merits of an application for custody or parental authority, the latter proceedings being, in principle, unconnected to the purpose of the Hague Convention.' 236 It explained that in Hague proceedings best interests were to be evaluated in the light of the exceptions, but noted that in this, domestic courts enjoyed a margin of appreciation, but this was subject to European supervision. 237 In the light of the dissenting opinion of Judges Berro-Lefèvre and Karakaş in the Belgium case, it is of note that the Grand Chamber further reiterated that it would not be substituting its own assessment for that of the domestic courts, rather it would be reviewing whether the decision-making process of the domestic court was fair, had allowed the parties to present their case fully and that the best interests of the child were defended. 238 The Grand Chamber then stated, confirming the extrajudicial view of Judge Costa, that the infamous reference to 'an in-depth examination of the entire family situation' in Neulinger, at paragraph 139, did not in itself set out any principle for the application of the 1980 Convention by 230 Ibid., at para. 92, quoting from Nada v. Switzerland The Grand Chamber noted that the paramountcy of the best interests of children was associated in the Hague Convention with restoration of the status quo, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the individual child's interests. 236 Ibid., at para. 100. 237 Ibid., at para. 101. 238 Ibid., at para. 102. For the Grand Chamber, the co-existence of what it previously described as an instrument of a procedural nature and a human rights treaty, 240 required first, that the exceptions to return be genuinely taken into account by the requested court and, second, that they be evaluated in the light of Article 8. In this there were procedural obligations in that domestic courts must not only consider arguable allegations of a 'grave risk' for the child in the event of return, but also make rulings on the exceptions as a whole giving specific reasons, which must not be 'automatic and stereotyped'. 241 Almost as if such guidance might be interpreted as once again moving away from the Court's traditional interpretation of the Hague Convention, which it was apparently trying to rehabilitate, the Grand Chamber immediately reasserted the position adopted in Maumousseau 242 that the exceptions must be interpreted strictly. 243 In this way the Grand Chamber might be viewed as seeking to achieve an appropriate equilibrium, not only with the Hague Convention, but equally with the spirit of the Neulinger judgment.
Harmonisation 244 in presentation is quite different however to viability and effectiveness in practice. 245 On paper, a strict interpretation of exceptions to return might appear feasible whilst at the same time facilitating a genuine appraisal of arguable allegations, with these being upheld or rejected on the basis of sufficiently reasoned decisions. But balancing standards and ultimately rationales which scarcely rest easily together, is less straightforward. In summary proceedings focussed on return, an 'effective examination', 246 depending on how it is interpreted and applied, carries the risk of causing delay, or leading the court to stray into the underlying custody dispute. 247 Similarly there is a clear danger in complying with such requirements that abductors will be able to exploit them to their own advantage, whether through delays or tactical manoeuvres. There is moreover a further challenge for courts, conceptual as well as practical, in how to balance a strict standard of interpretation, with a sufficiently detailed assessment of the exceptions. 248 It is inevitable that great discipline will be required if an appropriate and effective application of the Hague Convention and compliance with Article 8 ECHR is to be achieved.
The difficult task presented by the re-stated General Principles was almost certainly increased for domestic courts, and the Grand Chamber's putative equilibrium unsettled, by the terms of the final paragraph of the section. Building on the Chamber judgment, 249 this set down a very general obligation, of uncertain scope, that courts making return orders must satisfy themselves that 'adequate safeguards are convincingly provided' in the child's State of habitual residence, including 'tangible protection measures', where a known risk exists. 250 Whilst the implications of this were not fully explored, reference need only be made to Šneersone 251 for an extremely broad vision of what this might entail. The 8 judges of the dissent on the other hand appeared to be satisfied with the more traditional, presumptive model employed by the Latvian courts that there were 'no grounds for doubting the quality of the welfare and social protection provided to children in Australia' in the light of evidence that Australian legislation provided for the security of children and their protection against illtreatment within the family. 252 Undoubtedly steps such as the inspection of proposed accommodation or the qualitative evaluation of post-return contact and care 253 would ensure a more complete protection for the individual abducted child, but such an approach also risks lengthening abduction proceedings and ultimately broadens their scope. Desirable as the detailed verification of safeguards might be, in the absence of any clear mechanism for this to be achieved, or indeed resourced, its feasibility must be questioned. 254  sufficiency of the justification for such an apparent extension of the Article 8 positive obligations could be questioned given that the Grand Chamber based this on no more than the Hague Convention Preamble's reference to children being returned to 'the State of their habitual residence'. 255 3.3.3.2 Application of the General Principles The challenges inherent in applying the Grand Chamber's clarified 'General Principles' were immediately and fully exposed when the 16 supporting judges divided equally on whether the Riga Regional Court had indeed satisfied the procedural requirements inherent in Article 8 when dealing with the father's application for the return of his daughter to Australia. The Latvian courts had provided, within a very short timeframe, 256 what might be described as a textbook, strict response to the primary carer mother's arguments under Article 13. 257 The appellate court held that there was no evidence to substantiate the mother's allegations against the father. Furthermore it refused to rely upon a psychological assessment indicating the likelihood that immediate separation from the mother would cause the child psychological trauma, since the Hague proceedings were not concerned with custody rights. And it found that there was no evidence to suggest a return to Australia would threaten the child's safety, as Australian legislation provided for the security of children and their protection against mistreatment. For the 8 judges of the dissent whilst the reasons given by the Latvian courts were expressed succinctly, they had nevertheless adequately responded to the mother's arguments and satisfied the procedural requirements imposed by Article 8. The difference in approach of the majority however was nothing short of remarkable, and of potentially great significance for the future application of the Hague Convention. This is because the majority was not simply favouring a more exacting application of the re-stated Article 8 obligations, but was clearly reversing the burden of proof in the application of Article 13, 258 and confirming the extent of the obligations on the requested State to confirm or exclude the existence of a grave risk of harm. 259 The majority found that the mother's submission of the psychologist's certificate, as well as her argument that the father had criminal convictions and had ill-treated both her and the child, sufficed to require the Latvian courts: 'to carry out meaningful checks, enabling them to either confirm or exclude the existence of a ''grave risk'''. 260 And by failing to take into the account the allegation, which was substantiated by a certificate issued by a professional, Article 8 was found to have been breached. 261 As subsequently noted by the dissent, in proceedings under Article 13 the burden of proof is of course on the party alleging the grave risk of harm to provide evidence. But under the majority's formula it would seem that once a prima facie case had been made out by the abductor, then the onus would be transferred to the court seised to determine whether it did or did not exist. 262 Notwithstanding that the majority sought to discount minor inconveniences from the scope of Article 13(1)(b), 263 such reframing of the operation of the Hague Convention, which offers a clear procedural advantage to the abductor, could only serve to cause delay and require a level of investigation more appropriate in a full merits assessment of the issue of custody than one centred on jurisdiction and return. 264 For the majority however the requirement for expedition placed on domestic courts did not 'exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for'. 265 This must be confirmation that despite the sanitizing of the Neulinger judgment in X v. Latvia there is a clear desire on the part of many Strasbourg judges to steer the treatment of international child abductions away from the prioritization of return, towards a security first approach, prioritizing the individual abducted child. This is articulated most clearly in the concluding comments of Judge Pinto de Albuquerque: 'Justice for children, even summary and provisional justice, can only be done with a view to the entirety of the very tangible case at hand, i.e. of the actual circumstances of each child involved. Only an in-depth or 'effective' evaluation of the child's situation in the specific context of the return application can provide such justice.' 266 260 X v. Latvia [GC], no. 27853/09, (2014) 59 EHRR 100, at para. 116. In this it referred to the equivalent approach adopted by the Court in B v. Belgium, no. 4320/11, 10 July 2012, at para. 72. The dissent, at para. OII-10, was un-persuaded that the Latvian courts should have taken the initiative by requesting further information from the Australian authorities about the father's criminal profile, previous convictions and the charges of corruption allegedly brought against him. 261 X v. Latvia [GC], no. 27853/09, (2014) 59 EHRR 100, at para. 117. The fact that the report had been instructed by the mother alone did not absolve the Latvian courts from the obligation of effective examination. The majority added that the ability of the mother to maintain contact with her child should also have been considered. 262 The majority sought to reinforce this interpretation by noting that Art. 8 ECHR rights fell within the scope of Art. 20, 1980 Hague Convention, and appearing to suggest that the latter provision should be applied by the Latvian courts of their own motion. It is indeed the case that Art. 20 does not specify where the burden of proof falls, but as Anton noted in the aftermath of the Convention's adoption, it should fall to the person opposing the return to make a prima facie case as to the exception's applicability, Anton (1981)

The Effect of X v. Latvia
In marked contrast to the aftermath of Neulinger, the ruling in X v. Latvia has failed to generate any judicial commentary or analysis in the United Kingdom in the first 20 months since it was handed down. This is reminiscent of the pre-Neulinger era when ECtHR case law was rarely considered, 267 indeed it was only after the first Grand Chamber ruling that mention was made to the Maumousseau judgment in English case law. 268 Whilst this may be due to the clarity of directions given by the Supreme Court in Re E 269 and Re S, 270 the last 2 years have seen several attempts to invoke Article 20 to oppose a return order, 271 one of which saw the exception successfully invoked for the first time in one of the United Kingdom jurisdictions. 272 There is however no indication from the formulation of the judgments that this development is directly linked to the evolution in Strasbourg reasoning, 273 though the courts undoubtedly have a greater sensitivity for Article 8 and human rights arguments. 274 In Strasbourg the picture continues to be mixed. Whilst a preponderance of judgments have indeed displayed a strong support for the objective of return and a strict interpretation of the exceptions in their application of Article 8, 275 some of these have included dissenting opinions which appear to reject the fundamental premise of the Hague Convention. 276 Moreover, in the case of Phostira Efthymiou et Ribeiro Fernandes v. Portugal 277 the Court favoured an approach which is difficult to reconcile with the 1980 instrument. Even within the judgments supportive of the 1980 Convention, there is evidence of the tension between the different facets of the Latvia ruling. For example in Blaga v. Romania 278 the Court expressed concern at the emphasis placed on the objections of the children to a return, the insufficient balancing of the applicant father's right to family life; the failure to consider the feasibility of return, or its impact, on the children; as well as the domestic authorities failure to act expeditiously in the return proceedings. And for these reasons the Court found that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8. 279 However, at the same time it re-affirmed that the interests of the child were paramount in abduction cases, which led to the surprising declaration that after more than 13 months away, the Romanian courts may have been justified to hold that the children's family situation had changed and that it was in their best interests to remain. 280 Ultimately however this reasoning was not pursued, the Court concluding that the change in circumstances had been considerably influenced by the slow reaction of the Romanian authorities. 281 In RS v. Poland 282 it is the dissenting judgment of 3 of the 7 judges which stands out for refusing to accept that there had been a violation of the applicant father's Article 8 rights. The children had travelled to Poland with their mother for a vacation, but whilst there the mother issued divorce proceedings and was granted interim custody. She then refused to return and the father issued Hague Convention proceedings. In clear opposition to the principles of the 1980 Convention, the Polish courts declined to find that the retention had been wrongful, given the interim order that had been awarded in the mother's favour. Judges Nicolaou, Wojtyczek and Vehabović began by noting that the mother could not expect a decent life in Switzerland and had no alternative but to seek a new beginning in her home country. They held that the Polish court was entitled to consider that it unavoidably had to deal with the custody issue alongside the divorce petition. And further, they added that the decision not to return the children could justifiably be regarded as falling within the ambit of the Hague Convention's exceptions. Such a blatant conflation of merits issues with adjudication on the question of return pales in comparison however when compared with the comments of Judge Dedov in Adžić v. Croatia. 283 In a sole dissenting judgment, he stated bluntly that the summary return mechanism was 'not suitable for the assessment of rights under Article 8 of the Convention, as the Hague Convention does not provide a comprehensive approach to the conduct of the return proceedings'. Like the dissenting judges in RS v. Poland, he highlighted the serious vulnerability of mothers who were completely dependent on their husbands, as well as the vulnerability of children, especially the very young, for whom separation from the mother would lead to distress. He argued that a child's best interests, from a personal development perspective, would depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents as well as his environment and experiences. He further submitted that the separation of a child under seven from his mother would always lead to a grave risk of harm for the purposes of Article 13(1)(b). 284 279 Judge López Guerra joined by Judge Motoc dissented on the violation of Art. 8 ECHR. 280 Blaga v. Romania, no. 54443/10, 1 July 2014, at para. 88. 281 Ibid., at para. 89. 282 RS v. Poland, no. 63777/09, 21 July 2015. 283 Adžić v. Croatia, no. 22643/14, 12 March 2015. 284 As regards children aged 7-13, he suggested that return was more realistic, unless there was a really grave risk, whilst teenagers should have the right to decide for themselves and express their own opinion.

The ECtHR and the Hague Child Abduction Convention 399
Phostira Efthymiou et Ribeiro Fernandes v. Portugal 285 involved a standard wrongful retention of a very young child by her mother following an agreed vacation. A return order made within 4 months was overturned on appeal and, after almost 19 months in Portugal, the Supreme Court, favouring a strict interpretation of Article 13(1)(b), reinstated the original order. The ECtHR, by a 5:2 majority, found that the decision-making processes had not met the procedural requirements inherent in Article 8. The reasoning employed in the judgment and dissenting opinion re-awakens the differences of emphasis present in the Grand Chamber ruling in X v. Latvia. For the majority the reasoning of the domestic courts was particularly succinct and based on limited evidence. The previous situation of the child was unknown, 286 and referring to Article 13(3) of the Hague Convention it was noted that additional information had not been sought from the Cypriot central authority concerning the situation of the father, as well as his inability to care for the child, which had been alleged by the mother. 287 Furthermore evidence presented by the mother, including a psychologist's report, was not considered by the Supreme Court. 288 The proceedings were also deemed to have lasted an excessive period of time, 289 and the child appeared settled in her new environment. 290 In contrast, Judges Steiner and Sicilianos found that the Supreme Court had acted within its margin of appreciation in giving a stricter interpretation to Article 13(1)(b) than the Court of Appeal. 291 Referring to the majority's application of the General Principles in X v. Latvia, they noted that it was implicit, but clear, that the exceptions were to be interpreted strictly and that the burden of proof was on the person opposing return. Strikingly they observed that if a return was refused each time a psychologist considered there would be emotional consequences for young child then the 1980 Convention would risk being emptied of its meaning and purpose.
Whilst Phostira Efthymiou is now an isolated example of the Court showing an indulgent approach faced with a primary carer abduction involving a young child, it would be disingenuous simply to categorise it as a rogue case. 292 Taken together with the dissenting opinions in the judgments it shows rather that there is a cohort of Strasbourg judges who do see the resolution of international child abduction cases in very different terms to those set out in the Hague Convention, one in which return is far from prioritised. Moreover, given the formation of Chambers and the manner in which judgments are composed, 293 it is inevitable that this fragmentation of case law will continue, bringing uncertainty where the Strasbourg Court once acted as such a unifying force. 294

Conclusion
The Neulinger and X v. Latvia cases, through their factual matrices as well as in the complex, sometimes ambiguous and indeed conflicting nature of their judgments and dissenting opinions, encapsulate the challenges posed by international child abduction in the twenty-first century. A problem once seen in simple terms meriting a relatively straightforward solution has been transformed. Wrongful removals and retentions carried out by primary carers, most of whom will be mothers who will have stronger ties to the State of refuge than to the State of the child's habitual residence, undoubtedly fit less easily into the summary return mechanism created in 1980. Against such a context there is inevitably greater temptation for courts to allow return proceedings to drift into a consideration of substantive custody issues. This may be accentuated where there is evidence of vulnerability on the part of the abductor, whether through having experienced domestic violence or being in an economically weak position. But greater sensitivity to such issues also opens the door to exploitation, most notably should the abductor refuse to return with the child, leading to a potentially harmful separation. At the same time the essential ill which the Hague Convention seeks to remedy remains unaltered; unilateral action, which if unchecked minimises the chances of the child concerned having a meaningful relationship with the left behind parent and in turn, were it to become widespread, would simply encourage such behaviour, to the detriment of all children.
The divergent views that have been expressed and continue to emanate from Strasbourg as to how compliance with Article 8 ECHR should be achieved in the application of Hague Convention, show that there is, at best, uncertainty as to how the interests of abducted children should now be protected. There is attraction therefore in Eekelaar's assessment and his classification 295 of standard Hague return applications 296 as falling within the 'indirect' category of best interests. 297 Indeed this reflects the balancing of rights and interests put forward by the drafters and now applied in many States Parties. It also facilitates a holistic application of the UNCRC, allowing account to be taken in particular of Article 11 and Article 41. However, as with any binary system of categorization there are limits to its 294 Cf. concluding comments of Judge Dedov in Adžić v. Croatia, no. 22643/14, 12 March 2015. Calling for a best interests assessment in each individual case he held: 'a contradictory rule gives rise to unstable court practice: few judgments are delivered without a dissenting opinion, and there is nothing to prevent national courts from coming to opposite conclusions in similar situations regarding the applicability of Article 13 […]'. 295 Eekelaar (2015), p. 3, see above n. 127. 296 Those made within the 12 month period prescribed within Art. 12(1), 1980 Hague Convention. 297 Where settlement is proved for the purposes of Art. 12(2), 1980 Hague Convention Eekelaar notes that the decision becomes one directly about children.
The ECtHR and the Hague Child Abduction Convention 401 application. For example when applied to Neulinger 298 the merits of Eekelaar's criticism that the two modes of application of the best interests principle were not distinguished, must surely depend on whether the reasoning of the Grand Chamber is to be treated as applying to the summary return in general or just the enforcement of the return order, as the facts of the case demanded. 299 By the time the Grand Chamber delivered its judgment, the child was settled in Switzerland as a matter of fact, even if not for the purposes of Article 12(2) of the 1980 Hague Convention. And so any decision taken at that stage would have been of direct, not indirect effect, to him. Whilst such extreme examples are rare, it is not uncommon for children to spend extended periods of time in the State of refuge whilst return proceedings and appeals run their course. The more integrated a child becomes, then the more difficult it is to present the issue of return as only of indirect effect. Hague Convention proceedings, by virtue of their particular nature, might therefore be better regarded as hybrid in that they have the potential to evolve from having only an indirect to a direct impact on the children involved. In this a parallel may be drawn with the reasoning employed by Judges Tulkens and Keller in their concurring opinion in B v. Belgium. 300 They noted that ideally a child should be returned within a year and that the more a child became integrated into his new surroundings, the weaker the information to assess the risk of return and the less serious the decision on return would be. Making an analogy with the Bosphorus principle of equivalent protection of fundamental rights, 301 they noted that where there was such delay the guarantees offered by the Hague Convention and Article 8 could no longer be considered as equivalent, making it more difficult to draw a distinction between the procedural and substantive obligations deriving from the latter provision. 302 Such clarity of guidance is helpful. It reflects moreover how the 1980 Hague Convention, as originally envisaged, can continue to be the most appropriate solution to cases of unilateral removal or retention. If the standard judicial response were simply to sanction a more child-centric approach to the application of the exceptions where the child had spent an extended period of time in the State of refuge, this would merely be an incentive to abductors to obfuscate and delay. The more viable and appropriate option therefore, which will also avoid potential conflict with Article 8 ECHR, would be the introduction of more effective measures to promote expeditious outcomes. 303  protection is to be provided for children and primary carer abductors upon return. With such steps, as the majority view from Strasbourg makes clear, there is no reason why the principle of summary return cannot continue to be in the best interests of the individual child and children collectively for many years to come, although in the current financial climate the prospect of greater State involvement must be far from certain.
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