Child Abduction

• Author: International Law Group

Mr. Sylvester (husband or H) was born in 1953 and is a U.S. citizen living in Michigan. After his marriage to an Austrian citizen (wife or W), Carina Maria (CM), his daughter, entered the world in 1994. W has dual U.S. and Austrian nationality and now lives in Graz, a city in southeastern Austria.

While CM was still an infant, W took her out of the U.S. to live with her in Austria without getting H's consent. H petitioned the Austrian courts to order CM's return to the U.S. under the 1980 Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670] to which both the U.S. and Austria are parties. In December 1995, an Austrian court granted his application and the appellate court dismissed W's appeals.

The following April, a Michigan court granted H a divorce from W by default and awarded him sole custody of CM. H then succeeded in obtaining an enforcement of the return order from the Graz District Court. Despite a search of W's house, however, the enforcement officials could not find CM.

Meanwhile, in August 1996, W persuaded the Graz Regional Civil Court to set aside the enforcement order and to remand the case to the District Court. The regional court ordered the lower court to determine whether CM's relationship to H had significantly altered since the time of the original order. H appealed the remand order but the Austrian Supreme Court affirmed the regional court's ruling.

On the merits, the Austrian courts concluded that CM's situation had substantially changed, that CM's well-being was foremost, and that her removal from W would likely cause CM serious psychological injury. During June 1997, officials allowed H several hours of supervised visitation with CM. Six months later, the Austrian courts awarded W the sole custody of CM.

H and CM next applied to the European Court of Human Rights in Strasbourg. They contended that the failure of the Austrian courts to enforce the final return order under the Hague Abduction Convention breached their rights under the European Convention on Human Rights [ECHR] -- mainly under Article 8. They sought just satisfaction pursuant to Article 41.

The pertinent language from Convention Article 8 is: "1. Everyone has the right to respect for his private and family life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national...