View Adopted: 2021.03.05
The author is an Israeli-French national woman who married a British-Israeli national man and had a child who acquired French nationality. TheHer husband had a health accident and was being treated in Tel Aviv. While on a brief trip to France with her son, the author found out that her husband had obtained an order from an Israeli court banning her from leaving Israel with her child until the child had reached the age of majority. He had filed an application with the central authority of Israel for the return of the child under the Convention on the Civil Aspects of International Child Abduction (CCAICA). This is mainly because her four-day trip was extended to 10 days. The author stayed in France and referred the matter to the authorities in France which rejected her challenges. She finally lodged an application with the ECtHR which was declared inadmissible.
The author complains of a violation of articles 17, 23 (1) and 24 (1) of the Covenant claiming that the non return of her child to Israel after the initial 4 day-trip is not a wrongful under the CCAICA because not only did the husband not exercise custody rights while incapacitated in the hospital, but the extension of her stay was based on justifiable grounds, namely her state of generalized fatigue which deteriorated. Moreover, she holds that the exceptions under article 13 (b) CCICA were not properly examined which results in a breach of child rights protection.
The Committee considers that it is not able to determine with certainty that the case has been subject to an examination on the merits by the ECtHR, mainly because of the brevity of the letter addressed which does not put forward any argument to indicate that the inadmissibility decision was based on the merits. The author has sufficiently substantiated her claims and the case is therefore admissible before the Committee.
The Committee observes that the author has not demonstrated how the national courts failed to take into account the rights protected by articles 17 and 23 (1) of the Convention, in their application of the CCAICA. The author has neither demonstrated how, in ordering the return of the child to Israel in application of the CCAICA, the national authorities took decisions that were at variance with the provisions of the Covenant. With regards to the claims relating to her health, the Committee recalls that it is up to domestic courts to evaluate the facts of the case on this matter and that the Committee will only review the facts if it can be ascertained that the proceedings were arbitrary or amounted to a denial of justice. The author has not sufficiently demonstrated this point. The committee finally observes that the decisions were not taken without considering the best interest of the child. This is mainly because the French courts sought guarantees from the author’s husband in order to protect the child’s interest. There is therefore no violation of the Covenant’s rights by French national courts.
September 5, 2021