ECHR decisions on Article 13b Hague Convention

Two recent decisions of the ECHR seem to show somewhat different approaches in the aftermath of the storm that followed their decision in Neulinger and Shuruk-v-Switzerland (June 2010). Following the concerns expressed by the international legal community the President of the ECtHR  made clear in observations to the France - British -Irish Judges Conference in May 2011 that the Court had not intended the decision to be read in the way it had been. These observations were referred to by the UK Supreme Court in the decision of Re E [2011] UKSC 27 [2011]  FLR 758 when that court rejected the contention that the effect of Neulinger was to require a full welfare investigation within Hague Convention proceedings.
In Sneersome and Kampanella -v-Italy (App 14737/09) [2011] 2 FLR 1322 the Court considered whether the Italian Courts had acted in breach of the Article 8 rights of the mother and child when using the 'second bite of the cherry' provisions of Art 11 (7) &(8) of BIIIR to over-ride a non-return order made by the Latvian courts in Hague Convention proceedings. The ECtHR concluded that the Italian courts had breached those rights, primarily because they did not deal with the risks identified by the Latvian courts but also because they did not consider the Italian courts had taken sufficient steps to satisfy themselves that the protective measures proposed were adequate to safeguard the child's welfare on a return. The court DID NOT say that a full welfare investigation had to be undertaken.
This case is interesting for the emphasis laid on the need to consider the reasons for refusal of the Hague court to return as required in order to issue the necessary certificate but also for the emphasis on consideration of protective measures under Art 11(4) to reduce or ameliorate a risk. In this respect the approach of the Court mirrors that of the UK Supreme Court in Re E.

In  X v. Latvia (ECHR Application 27853/09) decided on December 13, 2011 the ECtHR (Third Section) seemed to go further in finding that the decision of the Latvian courts in making a return order was a breach of Article 8. The majority (6) criticised their failure to give weight to a psychological report on the child and other matters and concluded that as a result of a failure to conduct an in-depth examination of the family situation the making of the return order was a disproportionate interference. Interestingly 2 members of the Section gave dissenting judgments in which they stated that they considered the majority decision was to substitute their own assessment of the best interests of the child with that of the domestic courts.  Although the language used by the majority is less emphatic than in the Neulinger stream of cases the decision itself is most unusual for the 'hands on' approach adopted and the way they seem to have acted as a superior appellate court of the sort they are not supposed to be.

Overall  the two cases do not add any further fuel to the Neulinger flames - if anything they are evidence of a retreat by the ECtHR from that stream of decisions.  They do not seem to me to be as radical as Jeremy Morley sees them: http://www.internationalfamilylawfirm.com/2012/01/hague-abduction-convention-under-threat.html?m=

Of interest to European abduction lawyers in particular is  the opening of a route to challenge certificates issued under BIIR Art (7) & (8).