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27 JUL 2006

HUMAN RIGHTS/ABDUCTION: Caras v Romania (Application No 7198/04)

(European Court of Human Rights; 27 July 2006) [2006] 2 FLR (forthcoming)

Against the father's wishes, the mother and the child stayed in Romania following a family holiday while the father returned to Israel without them. The father sought the summary return of the child to Israel. The Romanian court initially refused to return the child to Israel on the basis that the political situation in Israel posed a risk to the child. Subsequently the reason given was that the Romanian court had now ruled on the divorce, including custody of child which had been awarded to the mother. The Romanian authorities had been informed of the divorce proceedings but had done nothing to defer judgment until the abduction proceedings were over.

By failing to inform the divorce courts of the existence of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention) proceedings, the Romanian authorities had deprived the Hague Convention of its very purpose, that is preventing a decision on the merits of the right to custody being taken in the State of refuge. Also, given that this matter concerned the reunification of a child with a parent, the delay of more than 18 months between the father's request for return of the child, and the final decision of the court had failed to meet the urgency of the situation. The State's failure to fulfil its positive obligations and the failure to deal swiftly with the abduction proceedings both involved violations of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

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