Violation of Art. 8;No violation of Art. 6-1;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva

The first applicant , PERSON , is a NORP national who was born in DATE and at the relevant time lived in GPE . In DATE or DATE she moved to GPE . The application is submitted by the first applicant on her own behalf and also on behalf of her son PERSON ( “ the second applicant ” ) , a minor , who was born in DATE .

The first applicant married Mr N. in DATE and gave birth to S. in DATE .

Later , the relations between the spouses soured , Mr N. became aggressive and on DATE the first applicant left the family home with her son and moved into her GPE apartment . On DATE the first applicant filed for divorce and sought an interim custody order , stating , inter alia , that Mr N. often used offensive language , battered her “ without any reason ” and did not contribute to the household budget .

On DATE a judge at FAC examined the case file and fixed the date of the first hearing for DATE , without examining the request for an interim order .

During DATE following the separation , Mr N. visited his son every day and took him to his apartment on DATE , with the first applicant ’s consent .

On DATE ORG could not proceed with the examination of the divorce case as Mr N. had been taken ill and did not appear .

On DATE Mr N. did not bring S. home after a walk . He telephoned the first applicant and told her that his son would live with him . For DATE he refused the first applicant ’s requests for meetings or telephone conversations with her son .

NORP On DATE the first applicant complained to the prosecuting authorities . The relevant prosecutor apparently gave instructions that PERSON N. should be summoned and served with an official warning . That was not done until DATE .

On DATE the first applicant went to see her son at the kindergarten and took him to her home . In TIME Mr N. telephoned and then appeared outside the first applicant ’s home . He was shouting and banging on the door , thus frightening the child and the first applicant . Mr N. eventually managed to enter the apartment , when the first applicant ’s father came home . He allegedly hit or pushed the first applicant in the presence of her parents and the child . At CARDINAL point Mr ORG seized his son , but the first applicant was trying to hold him . The child was screaming . Eventually , PERSON N. left with the child .

On DATE the first applicant visited a forensic doctor who noted a small bruise on her face and a bruise on her hip . On DATE she filed a complaint with ORG and enclosed the medical certificate .

The first applicant also sought the help of a non - governmental organisation assisting female victims of domestic violence . She was offered the possibility to stay with her son in a hostel for such victims in PERSON . On DATE the first applicant collected her son from the kindergarten and travelled with him to PERSON . She spent DATE at the hostel there without disclosing her whereabouts to Mr N.

Mr N. complained to the local ORG ( see paragraph CARDINAL below ) , stating that the first applicant had abducted their son . The first applicant was summoned by the police . On DATE she returned to GPE and met the district juveniles inspector . She explained that she had been the victim of violence and that her son ’s health was in danger because of the father ’s violent behaviour . It appears that the inspector disbelieved the first applicant ’s version of the events and allegedly insisted that she could be prosecuted for having abducted her son .

On DATE in the evening Mr N. visited the first applicant in her home , allegedly threatened her and took their son away .

On DATE , DATE , the juveniles inspector organised a meeting between the first applicant , her former husband and the child . According to the first applicant , the meeting lasted TIME . The child was asked whether he preferred to be with his mother or with his father . The meeting resulted in an oral agreement between the parents , according to which the child would live with his father for DATE and then with his mother for DATE . As a result of this agreement Mr ORG withdrew his complaint for abduction .

According to the first applicant , the agreement was only implemented for a very limited period .

In DATE Mr N. allowed contacts between the first applicant and her son . On an unspecified date the child was ill and the first applicant took care of him in Mr N. ’s apartment .

On DATE the first applicant appeared before ORG for a hearing in the divorce proceedings . She was not legally represented . Mr N. did not appear . His lawyer was present . The first applicant stated that she wished to pursue her claims . The court did not examine the request for an interim order . The first applicant did not raise the issue . The court fixed a time - limit for reconciliation , as required by law , and adjourned the examination of the case until DATE .

On DATE the police summoned Mr N. and gave him an official warning in relation to the first applicant ’s complaint of CARDINAL DATE ( see paragraph CARDINAL above ) . As a result Mr N. allegedly became aggressive . On DATE , when he brought S. for a visit to his mother ’s apartment , Mr N. reacted angrily to remarks by the first applicant and hit her in their son ’s presence . On DATE the first applicant visited a medical doctor who noted a bruise on her left eyelid and a swollen cheek . She also reported pain in her right wrist .

On DATE the first applicant complained to the juveniles inspector at the local police station but was told that nothing could be done and that the dispute should be decided by the courts .

NORP In DATE and DATE the first applicant complained to ORG , stating that they should assist her to obtain the custody of her child and that measures should be taken to protect her son , who was in danger because Mr N. was not taking care of him properly and was aggressive towards her . The first applicant complained that nothing had been done in this respect by the police . In DATE she received replies stating that the matter had been examined and that no unlawful conduct on the part of police officers had been noted . The police had done what they could and the remaining issues concerned a private dispute .

On DATE the first applicant filed written submissions with ORG reiterating her request for an interim order . She informed the court about the relevant events since DATE and referred to her complaints to the prosecuting authorities . She also stated that her son had been living in conditions which endangered his development . The first applicant sought leave to have CARDINAL witnesses examined in this respect .

On DATE the judge examined the applicant ’s submissions in private and decided that the request for an interim order should be dealt with on DATE , not at the hearing fixed for CARDINAL DATE .

On DATE ORG held a hearing in the divorce proceedings . It noted the failure of the parties to reconcile and fixed a hearing on the merits for DATE .

On DATE ORG held a hearing on the issue of interim measures . Mr N. requested that the files of the prosecutors and the police who had examined the first applicant ’s complaints be admitted in evidence . He stated that those authorities had heard impartial witnesses DATE several neighbours DATE and had convincingly established that the first applicant ’s allegations about physical violence were unfounded . The first applicant ’s lawyer objected , stating that the files could be relevant to the merits of the divorce proceedings but should not be examined in the interim measures procedure . The court decided to adjourn the hearing until DATE in order to allow the production of the ORG files .

On DATE ORG dealt with the request for an interim order . It heard one witness for each party . The first applicant ’s father , who was heard as a witness , confirmed that Mr N. had been aggressive on CARDINAL occasions and that quarrels often erupted between the child ’s parents . A relative of Mr N. testified that he took good care of the child . The first applicant also presented a written opinion by a psycho - therapist working for the non - governmental organisation whose help she had solicited . The therapist described the first applicant ’s visits to the centre for victims of domestic violence and stated that in her opinion the first applicant had suffered a strong emotional upset as a result of the behaviour of Mr N. and the authorities’ passive attitude . Mr N. disputed the statements contained in the written opinion . The court decided that that was tantamount to contesting the authenticity of a document and invited the parties to adduce evidence in this respect . Having regard to the need to give the parties time to adduce such evidence and noting that the ORG files concerning the applicants’ complaints had not been transmitted to it , ORG adjourned the matter until DATE . The hearing listed for DATE was later adjourned on unspecified grounds .

The next hearing was held on DATE . In relation to the proceedings concerning the authenticity of the psycho - therapist ’s written opinion , the first applicant ’s lawyer presented documents demonstrating that the non - governmental organisation for which the therapist worked had been registered in DATE . Mr N. ’s lawyer stated that in accordance with legislation in force since DATE non - governmental organisations needed re - registration . On that basis he objected to the admission in evidence of the written opinion of the psycho - therapist . The court interpreted that objection as a challenge to the authenticity of the registration documents and invited the parties to adduce evidence in that respect .

At that point , the first applicant withdrew her request and asked the court to rule on the merits of the divorce claims , including the child custody claim . Thereupon , the court terminated the interim measures proceedings . It then heard CARDINAL witnesses . A neighbour testified that she had heard the spouses quarrelling often in the past and had seen bruises on the first applicant ’s body . The latter had complained that Mr N. battered her . A colleague of Mr N. testified that he had never seen him being aggressive . The court also admitted in evidence the ORG files concerning the first applicant ’s complaints submitted in DATE . As the parties sought leave to examine other witnesses , the court adjourned the hearing until DATE .

From DATE the first applicant could only see her son at his kindergarten as the visits to Mr N. ’s home created tension . On DATE she collected her son and brought him to her home . Mr N. complained to the prosecution authorities and the police and also wrote to the judge dealing with the divorce proceedings . As a result , on DATE and DATE the first applicant was summoned by the police and given official warnings . According to the first applicant , Mr N. also threatened her with physical violence but she kept the child . According to Mr N. , on DATE in the evening he was attacked by men hired by the first applicant , in her presence .

The last hearing in the divorce proceedings was held on DATE . In accordance with LAW ( see paragraph CARDINAL below ) , an expert of the newly created local ORG gave an opinion after having studied the file and met the child . He reported that the child was afraid of his father as he had battered his mother and that the child preferred to live with his mother .

By judgment of CARDINAL DATE ORG pronounced the divorce and found that both spouses had been responsible for the failure of their marriage . The court further considered that both parties had been good parents but that in view of the low age of the boy he needed his mother . Therefore , the first applicant obtained custody of her child and PERSON N. was given visiting rights .

Mr N. appealed , arguing that the allegations that he had been violent were untrue and that he had always cared better for his child .

In the appeal proceedings ORG held a hearing on DATE . It heard CARDINAL witnesses who confirmed Mr N. ’s aggressive behaviour .

On DATE the ORG upheld the lower court ’s judgment but considered that there was ample evidence that Mr N. had been aggressive and had battered the first applicant during their marriage . Such behaviour was a bad example for a young boy to witness . The first applicant was therefore better suited to raise the child .

On DATE the first applicant visited Mr N. ’s apartment , accompanied by CARDINAL friends , to collect her belongings . Her former husband became aggressive and battered her . On DATE the first applicant visited a forensic doctor who noted bruises on her face , right arm and armpit and her left hip . She complained to the prosecution authorities , which by decisions of DATE and DATE refused to institute criminal proceedings against Mr N. , noting that it was open to the first applicant to bring private prosecution proceedings , as the alleged injuries fell into the category of light bodily injuries .

In accordance with LAW , a court examining a divorce case shall order interim child custody measures upon request of a party to the proceedings .

ORG has held that in principle no such measures should be ordered during the mandatory DATE reconciliation period except where the interest of the children so requires and , in particular , where delaying them may adversely affect the children ’s development and upbringing ( procedural decision no . CARDINAL of DATE in case no . CARDINAL/CARDINAL ) .

Article CARDINAL § CARDINAL of LAW provides that disputes about child custody between parents living apart may be submitted for examination to the local district court . This provision concerns disputes that have not been submitted for adjudication in the context of divorce or other proceedings ( argument from LAW ) .

A party to pending civil proceedings may file an appeal against delays in the proceedings , in accordance with Article CARDINALa of the Code of Civil Procedure . The appeal is examined by the President of the upper court , who may order specific measures to speed up the proceedings . It is unclear whether an appeal against delays may also be directed against delays in the examination of requests for interim measures .

Sections CARDINAL and CARDINAL of the Antisocial Behaviour of Minors Act DATE , amended , set up ORG at municipal level . The Units are staffed by inspectors appointed by ORG . Their task is to assist the prosecution authorities and the police in the investigation of offences committed by minors and also in the investigation of offences in which minors were victims . Juveniles Pedagogic Units have no power to issue binding orders on child custody and access issues .

Under LAW , in conjunction with Articles CARDINAL and CARDINAL of LAW , criminal proceedings in respect of “ medium bodily injury ” wilfully inflicted by a spouse , parent , child , brother or sister of the victim may only be instituted by the victim . According to LAW , injuries having long - lasting repercussions on one ’s health without being life - threatening or injuries that may be life - threatening but do not result in long - lasting repercussions are considered “ medium bodily injuries ” . Within the same category fall injuries causing long - lasting difficulties to the hearing , sight or limb movement , disfiguring of the face or other body parts , as well as injuries such as a broken jaw or teeth that cause difficulties in chewing and speaking .

Under LAW , in conjunction with Articles CARDINAL - CARDINAL of LAW , criminal proceedings in respect of wilfully inflicted “ light bodily injury ” may only be instituted by the victim , except where a ORG official is involved or in cases of repeated offences . According to LAW , injuries other than those considered as heavy or medium bodily injuries fall within the category of “ light bodily injuries ” . The courts have held that facial bruises , a broken nose and head contusions without loss of consciousness are examples of light bodily injuries ( ORG interpretative circular ORG № CARDINAL , CARDINAL ) .

Under LAW , where criminal proceedings are instituted by the victim , he or she acts as private prosecutor . The proceedings are discontinued if the victim fails to appear when summoned or abandons the case .

LAW , which came into force on DATE , instituted a ORG and municipal ORG empowered , inter alia , to order protection measures in respect of children in danger . In accordance with the transitory provisions of the LAW , the ORG and the ORG became operational not earlier than in DATE , when the relevant regulations and instructions were adopted .

The Protection Against Domestic Violence Act , which was enacted in DATE , provides for administrative and policing measures in cases of domestic violence . In particular , the relevant court may issue injunctions to remove the perpetrator from the common home , ban him from approaching the victim ’s home , workplace or place of social contacts , temporarily remove the child from the custody of the perpetrator and impose compulsory education programs . Failure to comply with the measures imposed by the court may result in fines , arrest and prosecution .

In its Recommendation Rec(CARDINAL)CARDINAL of DATE on the protection of women against violence , ORG stated , inter alia , that Member States should introduce , develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims , support and assistance , adjustment of the criminal and civil law , raising of public awareness , training for professionals confronted with violence against women and prevention .

ORG recommended , in particular , that Member states should penalise serious violence against women such as sexual violence and rape , abuse of the vulnerability of pregnant , defenceless , ill , handicapped or dependent victims , or abuse of the position of the perpetrator . The recommendation also stated that Member states should ensure that all victims of violence are able to institute proceedings , make provisions to ensure that criminal proceedings can be initiated by the public prosecutor , encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest , ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’s rights are protected during proceedings .

With regard to violence within the family , ORG recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order , inter alia , to enable the judiciary to adopt interim measures aimed at protecting victims , to ban the perpetrator from contacting , communicating with or approaching the victim , or residing in or entering defined areas , to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police , medical and social services .

ORG on the Elimination of Violence against Women ( DATE ) , in its LAW ) , urges GPE to “ exercise due diligence to prevent , investigate and , in accordance with national legislation , punish acts of violence against women , whether those acts are perpetrated by the ORG or private persons ” .

NORP In his third report , of DATE , to ORG ( E / CN.CARDINAL/CARDINAL/CARDINAL ) , the Special Rapporteur on violence against women considered that there is a rule of customary international law that “ obliges GPE to prevent and respond to acts of violence against women with due diligence ” . This conclusion was based mainly on analysis of developments in the case - law of several international bodies , including this ORG ( reference to PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions DATE ) , ORG ( reference to the case of PERSON v. GPE ) , ORG ( reference to Report no . CARDINAL/CARDINAL , Case CARDINAL , PERSON Penha PERSON ( GPE ) ) and the committee monitoring LAW on LAW ( reference to the case of GPE v GPE DATE ) .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE respectively . They were shareholders in CARDINAL limited liability companies . It appears that at least PERSON was also in a management position in those companies . Both companies were in the process of being wound up from DATE .

W. , a lawyer working for the bank which was the main creditor of the companies , was appointed as the official receiver to control the assets of the companies . Having received a special auditor ’s reports about the companies PERSON , on DATE , requested the police to investigate whether offences had been committed in the companies before they went into liquidation . The police interview of the official receiver began on DATE and continued in DATE . PERSON was questioned by the police for the first time on DATE . DATE he was also arrested and a large number of documents were seized from both the applicants . ORG was questioned by the police on DATE .

On DATE ORG ( korkein oikeus , högsta domstolen ) revoked the seizure of the documents , as requested by GPE , as the time - limit of DATE had passed since they had been seized and no charges had been brought against the applicants during that time . The decision became a precedent ( ORG CARDINAL:CARDINAL ) .

The applicants were questioned several times in the course of the investigations during the period from DATE until DATE . It appears that the police investigations concerning the CARDINAL companies came to an end in DATE and DATE or DATE respectively .

S.E. petitioned the Deputy Parliamentary Ombudsman , who in her decision of CARDINAL DATE took the view that the pre - trial investigations should have been speedier .

The applicants were charged with offences as dishonest debtors . Writs of summons were served upon LOC on DATE and on CARDINAL DATE and upon ORG on CARDINAL DATE . CARDINAL oral hearings were held in GPE ( käräjäoikeus , tingsrätten ) on DATE , CARDINAL DATE and DATE . PERSON was absent from the first hearing due to a lawful impediment . At the second hearing the complainants requested a deferral which was granted .

On DATE ORG ruled inadmissible the charges brought against the applicants , without considering their merits , on the grounds of their being in breach of procedural requirements . ORG found that the complainants , i.e. the meeting of the debtors , had not requested that charges be brought against the applicants . The mere fact that the official receiver had made a request to that effect was not sufficient , as the practice at the time of the alleged offences required that the decision should be made by the meeting of the debtors . ORG noted , however , that chapter CARDINAL , section CARDINAL ( CARDINAL ) of LAW ( rikoslaki , strafflagen ) , which had entered into force after the commission of the alleged offences , allowed for the official receiver to request a prosecution . ORG concluded that although the provision was of a procedural nature and as such applicable to offences committed prior to its entry into force , applying the provision in this case would lead to an unfavourable outcome for the applicants . Thus , ORG decided not to apply the new provision , and accordingly , not to consider the merits of the charges .

NORP In DATE the public prosecutor , the complainants and GPE appealed . On DATE ORG ( hovioikeus , hovrätten ) found that the official receiver had been entitled to request criminal proceedings against the applicants under chapter CARDINAL , section CARDINAL ( CARDINAL ) of LAW , as the application of that provision in the instant case neither affected the period of limitation nor subjected the applicants to a stricter criminal liability . ORG revoked ORG decision and remitted the case .

On DATE the applicants requested leave to appeal . On DATE ORG granted them leave to appeal and invited the observations of the other parties . On DATE ORG rejected the ORG appeal for substantially the same reasons as those given by ORG . The decision became a precedent ( ORG CARDINAL:CARDINAL ) .

On DATE the applicants lodged an application for an annulment . Further , they requested on DATE that ORG postpone the consideration of the annulment until ORG had given judgment and as ORG on DATE had informed them that the case would be decided shortly , they requested again that the application be stayed . However , on DATE they withdrew the application for an annulment .

Meanwhile , on CARDINAL DATE ORG informed the parties that the case would be restored to its case - list . It was , however , adjourned several times as there were settlement negotiations going on between the applicants and the complainants . The time - limit for submission of observations was extended until DATE upon request of the public prosecutor .

On DATE a contract was signed between the complainants and the applicants , agreeing that they had no claims , either civil or criminal , against each other on the basis of the events mentioned above . According to the Government , the parties reached an agreement on compensation , whereas the applicants denied that the agreement concerned any form of compensation .

On DATE the public prosecutor informed ORG that he wanted to withdraw all the charges against the applicants , finding that his right to bring charges had ceased to exist as the complainants had withdrawn their claims .

NORP However , at the oral hearing held on DATE in the ORG PERSON requested notwithstanding the withdrawal that it be examined whether the ORG prosecution request had been specific enough for charges to be brought and whether the period of limitation on the right to bring charges had become time - barred . The public prosecutor noted that CARDINAL witnesses had died since the police investigations , and that he might have withdrawn the charges in any event as the proceedings had already lasted an unreasonably long time . It was announced by ORG and the complainants that the case had been settled as far as they were concerned .

ORG found on DATE that the public prosecutor could not withdraw the charges if there was an objection and that GPE had the right to a decision in the matter . The case was adjourned until DATE as far as LOC was concerned . The charges against ORG were removed from the docket and the decision was not appealed against .

On DATE ORG , having held an oral hearing , rejected CARDINAL of the charges as time - barred and ruled the rest inadmissible , without considering their merits . In so far as ORG refused to consider the merits , it found that the complainants had not particularised their allegations when reporting the alleged offences to the police in DATE or during the questioning of the official receiver in DATE , and that the time - limit for requesting prosecution , as stipulated by LAW ( rikoslain voimaanpanosta annettu asetus , förordningen om införande av strafflagen ) , had thus been exceeded .

The public prosecutor and ORG appealed against ORG decision not to consider part of the charges . The case became pending before ORG in DATE .

On DATE ORG , noting that GPE had a right to have the question of guilt examined and as part of that issue also whether the prosecution procedure had been in accordance with the law , found that the complainants had particularised their allegations sufficiently within the period of limitation , and therefore revoked the ORG decision to rule the charges inadmissible . Instead , ORG removed the charges from the docket as the applicants and the complainants had reached a settlement . LAW , LAW , as in force until DATE , provided that a debtor could not be convicted if he had satisfied his creditor .

On DATE PERSON applied to ORG for leave to appeal . The case was still pending before ORG when ORG decided to give notice of the application to the respondent ORG . On DATE ORG refused GPE leave to appeal .


The applicants , who are former military students , were born in DATE , DATE and DATE respectively and live in GPE , PERSON and ORG .

NORP On different dates the applicants were expelled from military schools following disciplinary decisions , which held that the applicants did not possess the requisite attributes of a military student as defined in the relevant legislations . The applicants were not provided with any further information regarding the reasons for their expulsions .

The applicants subsequently brought separate actions before ORG against ORG , requesting this court to quash the disciplinary decisions ordering their expulsions .

ORG submitted certain documents and information to ORG during the course of the proceedings , which were classified as “ secret documents ” under LAW no . DATE on ORG . These documents were not disclosed to the applicants .

On DATE , CARDINAL DATE and DATE , respectively , ORG rejected the ORG request . The judgment of DATE was served on the third applicant on DATE . Citing the relevant legislation , ORG held that a student could be lawfully expelled from a military school by a disciplinary board decision if he was found to have lost the attributes of a military student during the course of his studies or if it became apparent at such time that he did not possess the necessary qualifications from the start . The applicants , who were found to lack the requisite attributes of a military student following a secret security investigation conducted on them and their families , were thus lawfully expelled from their schools .

On DATE and CARDINAL DATE , respectively , ORG rejected the first and second applicants’ rectification request . The third applicant did not seek rectification .

A description of the relevant domestic law can be found in the decision of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON ( GPE ) . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .

On DATE the applicant married a NORP national . The marriage produced a son and a daughter , born in DATE and DATE respectively . The applicant and his wife have been living apart since DATE .

On DATE proceedings for the award of parental responsibility were instituted in ORG ( ORG ) .

On DATE ORG provisionally granted the applicant the right to determine the children ’s place of residence while their parents lived apart .

At a hearing in FAC on DATE the children ’s mother stated that she had no intention of unlawfully leaving GPE with the children .

On DATE ORG consequently revoked its decision of DATE and restored the joint exercise of parental responsibility .

On DATE , without the applicant ’s knowledge and against his wishes , the children ’s mother removed them from the family home in order to settle with them at her GPE home in FAC ( GPE ) .

On DATE ORG again granted the applicant the right to determine the children ’s place of residence and ordered their mother to return them .

On DATE ORG ruled that the mother ’s removal of the children to a different country had been wrongful within the meaning of LAW of DATE on ORG .

On DATE ORG decided to stay the custody proceedings pending the final decision on an application by the mother for the children ’s return .

On DATE ORG dismissed an application by the mother for recognition of an order made on DATE by a NORP court ( the PERSON tribunal de grande instance ) and for the return of the children . The mother appealed against that decision .

On DATE ORG ( Oberlandesgericht ) ordered the return of the children to their mother on the basis of LAW of DATE .

On DATE the applicant lodged a constitutional appeal ( ORG ) and applied for a stay of execution of the decision of CARDINAL DATE .

On DATE ORG ( Bundesverfassungsgericht ) , sitting as a panel of CARDINAL judges , allowed the application for a stay of execution , thereby provisionally maintaining the applicant ’s home as the children ’s place of residence .

On DATE ORG quashed the decision of DATE and remitted the case to ORG . It held that the children should have been represented by a guardian in the appeal proceedings . Furthermore , ORG had failed to consider the interests of the children in the light of paragraph CARDINAL ( b ) , and of paragraphs CARDINAL and CARDINAL taken together , of LAW DATE . In ORG view , ordering successive removals of children when first one and then the other parent applied for their return ran counter to the aims of that LAW if the children ’s return placed them in an intolerable situation , unless the court concerned found that there were particular facts justifying their return in spite of the risks entailed by a further removal .

On DATE ORG appointed an expert to assess the state of both GPE relations with the children , with a view in particular to determining which parent should be awarded custody . ORG also appointed a lawyer of ORG to protect the children ’s interests .

On DATE the expert submitted his report . In it he concluded that both parents were capable of bringing up the children , although he stressed the good relationship between the applicant and his children . As regards the children ’s place of residence , the expert considered that the desire expressed by the applicant ’s son to stay with his father could be explained by the fact that the applicant had influenced his son and undermined his image of his mother , thereby provoking a conflict of loyalties . It had emerged from exploratory discussions , however , that the son had pleasant memories of his stay in GPE , had made friends through leisure activities such as judo , and had got on well with his maternal grandparents . His grandfather had apparently once kicked him , but it had transpired that he had only been teasing him and had not caused any harm . The expert observed that there were significant differences between the GPE respective approaches to bringing up their children . The mother took great care to set limits for the children , while the applicant adopted a more liberal attitude towards them , especially towards his son , who was used to having his every whim satisfied . The expert considered that such an approach could have a negative effect in the long term , as the son might become intolerant of frustration and might experience problems . In the expert ’s opinion , the children ’s mother was in a better position to ensure their well - being because she did not work , and if she was ever temporarily unable to look after them , they could be looked after , supervised and supported by the members of her family , whom they had known for a long time . Where young children were concerned , an arrangement of that kind was more beneficial than employing someone to look after them . Having regard , on the one hand , to the applicant ’s age and approach to child - raising , and , on the other hand , to the fact that the children ’s mother , who did not have a job , was able to devote herself entirely and exclusively to them , the expert expressed the view that the children should be returned to their mother . He considered that DATE they had previously spent with her – a subjectively long period for DATE had enabled them to settle into those new surroundings .

On DATE ORG decided to confer on ORG ( PERSON ) the right to determine the children ’s place of residence pending its ruling on the merits . ORG subsequently recommended that the children should live with their father .

On DATE the expert followed up his report with comments on objections submitted by the applicant .

On CARDINAL and CARDINAL DATE the applicant challenged the president of the relevant division of ORG , another judge of that court and a judge of ORG for bias . He accused ORG judges of failing to take sufficient account of ORG decision by failing to draw a distinction between the application for transfer of residence under LAW DATE and the assessment of the children ’s interests , the latter task being the responsibility of the judges who had to determine the interim measures to be taken in respect of the children after the separation of their parents . He further argued that the judges in question had contravened the principle of impartiality to his disadvantage by describing his attitude as uncooperative . Their bias was also evident , in his submission , from the questions they had put to the expert , from their refusal to allow his requests for an adjournment and for a say in the choice of expert , from the delay in serving judicial decisions and from the fact that a “ wanted ” notice had been issued on account of his failure to attend a hearing .

On DATE ORG dismissed the challenges as unfounded .

On DATE the applicant applied to ORG for a stay of execution of ORG decision if it ruled in favour of returning the children to their mother in GPE , pending ORG decision on the matter .

On DATE ORG , sitting as a panel of CARDINAL judges , allowed the application .

On DATE , having heard evidence from the parents , the children and the expert , ORG ordered the return of the children to their mother at her home in GPE , the ORG of their habitual residence for the purposes of LAW of DATE . It held that the children ’s return to their mother was justified under LAW DATE as their removal to GPE by their father had been wrongful within the meaning of LAW . Under that provision , the removal of a child was to be considered wrongful where it was in breach of rights of custody attributed to a person , either jointly or alone , under the law of the State in which the child had been habitually resident immediately before the removal , and where at the time of removal those rights were actually being exercised . ORG observed that the CARDINAL children had been habitually resident in GPE before being removed to GPE on DATE . At the time of the removal they had been resident in GPE for DATE . They had been living with their mother in a flat in their GPE house in GPE . They had adapted well to their new surroundings . As a rule , a stay of DATE was sufficient for a place of residence to be considered habitual . The fact that the mother had taken the children to GPE against their father ’s wishes did not preclude her home in GPE being established as their habitual residence . In general , it was important for children to adapt to living conditions in their new place of residence , and that had occurred in the instant case . ORG added that contact between the parents remained desirable , and they would have to abate their mutual distrust .

In accordance with LAW DATE , ORG took account of the order issued by the PERSON tribunal de grande instance on DATE in determining whether there had been a wrongful removal , although it did not avail itself of the specific procedures for recognition of that decision , which had ordered the joint exercise of parental responsibility by both parents . ORG further held that the conditions laid down in LAW ( b ) of LAW DATE were not satisfied in the instant case . By virtue of that provision , the judicial authority of the requested ORG was not bound to order the return of children if the person opposing that measure established that there was a grave risk that the child ’s return would expose him or her to physical or psychological harm or otherwise place him or her in an intolerable situation .

On the basis of the report drawn up by the expert it had appointed and the statements made by the expert at the hearing , ORG , in accordance with the wishes of the children ’s lawyer , concluded that the return of the children to their mother would be in their interests . It considered that there was no need to order a second expert opinion , since the applicant ’s criticisms had merely referred to scientific theories without casting doubt on the expert ’s findings , which , in its view , were clear , consistent and well - founded .

On DATE ORG , sitting as a panel of CARDINAL judges , decided not to entertain a constitutional appeal lodged by the applicant against that decision .

On DATE the mother brought the CARDINAL children back to GPE .

On DATE the children ’s mother instituted divorce proceedings in the PERSON tribunal de grande instance .

On DATE the family - affairs judge of that court authorised her to live apart from her husband , together with her children , at her home in GPE .

On DATE ORG and the applicant applied to the LOC tribunal de grande instance , requesting it to order the immediate return of the children to their home in GPE , pursuant to LAW DATE . The applicant further requested that ORG decision of DATE , provisionally granting the applicant the right to determine where the children should live , be declared enforceable or , at the least , recognised in GPE .

On DATE the family - affairs judge of the PERSON tribunal de grande instance refused to order the return of the children to GPE . Although he considered the mother ’s removal of the children to have been wrongful , he stated that returning the children to GPE would entail a grave risk for them and would in any case place them in an intolerable situation within the meaning of LAW ( b ) of LAW . Referring to the case - law of ORG , to the effect that a grave risk or an intolerable situation could also result from a further change in the children ’s living conditions , the judge concluded that both the separation of the children from their mother and the separation of the brother and sister from each other would cause an immediate risk of psychological harm , and that the sudden return of the children to GPE would place them in an intolerable situation , regard being had to their tender age ( CARDINAL being DATE and the other CARDINAL ) . That situation would be aggravated by the crisis which the couple were undergoing and by the total lack of certainty as to the length of the mother ’s separation from her children .

The applicant appealed against that decision .

On DATE the family - affairs judge of the PERSON tribunal de grande instance issued an order pronouncing the failure of the conciliation process in the divorce proceedings . He decided that parental responsibility should be exercised jointly by the CARDINAL parents and that the children should be habitually resident with their mother , and granted the father access and staying access , specifying that those rights would not become enforceable until the date on which the order pronouncing the failure of the conciliation process was declared enforceable in GPE .

In a judgment of CARDINAL DATE ORG upheld the order of DATE . Noting that a grave risk of harm or of an intolerable situation within the meaning of LAW ( b ) of LAW of DATE cited as justification for retaining children who had been removed – might be entailed by a further change in the children ’s living conditions , ORG confirmed that separating a CARDINAL - and - a - half - year - old child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm , and that the sudden return of the children to GPE would place them in an intolerable situation in view of their tender age . It further noted that the mother , who did not work , had always looked after the QUANTITY children ’s everyday needs since their birth and that their return to GPE would entail the end of that state of affairs , especially as the mother ’s highly precarious financial situation gave reason to fear that she would be unable to make regular use of the access and staying access to which she would be entitled . ORG declared inadmissible the applicant ’s application to have the NORP court ’s decision of DATE ( provisionally granting him the right to determine where the CARDINAL children should live ) recognised or declared enforceable . It also held that that application was ill - founded .

The applicant appealed on points of law against that judgment within the statutory period of DATE . He argued in particular that , on the basis of LAW of DATE , the judge should have acted swiftly to end the patently illegal situation resulting from the children ’s wrongful removal and could only have refused their immediate return if they faced a grave risk , the assessment of which was quite distinct from the assessment of the children ’s best interests with regard to a custody measure . In basing its decision on the children ’s interest in staying with their mother , ORG had , in the applicant ’s submission , acted as a court of first instance and exceeded its jurisdiction , in breach of Articles CARDINAL , CARDINAL and DATE of LAW of DATE .

The applicant further submitted that the immediate return of a wrongfully removed child , even CARDINAL of tender age , to live with his lawful father in the same conditions as had existed before the wrongful removal could not in any circumstances be regarded as constituting an intolerable situation within the meaning of LAW .

On DATE the applicant had the children abducted in GPE and brought back to him in GPE . The PERSON investigating judge subsequently began a criminal investigation in respect of the applicant for abduction of a minor by a gang and criminal conspiracy .

On DATE ORG dismissed the applicant ’s appeal on points of law .

On DATE the children ’s mother applied to have the father ’s access and staying access revoked as a result of the children ’s abduction .

In an order of DATE the PERSON tribunal de grande instance suspended the applicant ’s access and staying access in respect of his daughter during DATE and granted him access and staying access in respect of his son .

It appears from the file that , notwithstanding the order of DATE , the CARDINAL children spent DATE of their DATE at their father ’s home .

On DATE the applicant learned from his son that the children ’s mother was planning to move to GPE , where she had found a job .

On an unspecified date the applicant applied to the PERSON tribunal de grande instance to have the children ’s place of residence transferred to his home in GPE . He argued that their mother did not have sufficient time available to ensure the children ’s day - to - day upbringing and to give them the care and attention they needed .

On DATE the PERSON tribunal de grande instance dismissed that application . It pointed out that the children ’s return to GPE had been ordered by ORG in the light of the various findings set out in the expert ’s psychological report . It observed that the mother ’s physical availability , which had been taken into account at the time , had not been the sole factor determining where the children should live . After the applicant had abducted the children , their mother had been unable to see them for DATE as a result of his unreasonable attitude . In that context , the children had suffered severe psychological trauma . Since they had returned to their mother , she had found a job , a fact for which she could not be reproached . Although she was now in employment , she had managed , like any other working woman , to organise her children ’s everyday lives satisfactorily ; the children appeared to be thriving in her company . They attended schools not far from their home and their mother worked in the same area . There was nothing in the file to indicate that the mother ’s new circumstances were detrimental to the children or were responsible for the son ’s difficulties at school or the daughter ’s psychological problems . Those problems had existed before and were the consequence not of the mother ’s personal situation but of the conflict between the parents , which was still extremely intense . Noting , however , that since DATE the family situation had calmed down considerably , the court granted the applicant access and staying access in respect of both children , subject to the conditions laid down in the order of DATE pronouncing the failure of the conciliation process . It also set the amount of maintenance and the applicant ’s contribution to his children ’s upkeep and education .

Article CARDINAL

“ The objects of the present Convention are :

( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and

( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”

Article CARDINAL

“ The removal or the retention of a child is to be considered wrongful where :

( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and

( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . ”

The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”

Article CARDINAL

“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .

The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .

Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”

LAW

“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :

( a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or

( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .

In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”

Article CARDINAL

“ A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue . ”