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The latter ruling had emphasised the best interests of the individual abducted child in the context of an application for return and the ascertainment of whether the domestic courts had conducted an in-depth examination of the entire family situation as well as a balanced and reasonable assessment of the respective interests of each person, see: of 10 July 2012 [INCADAT Reference: HC/E/ 1171] In this case, a majority found that the return of a child to the United States of America would lead to a breach of Article 8 of the ECHR.
Recourse has been had to expert evidence to assist in ascertaining the potential consequences of the child being separated from the taking parent, there are examples of a less strict approach being followed.
It held that where there were no objective obstacles to the return of a taking parent, then it could be assumed that the taking parent considered his own interest to be more important than those of the child.
[INCADAT Reference: HC/E/PL 701] The Supreme Court specified that the frequently used argument of the child's potential separation from the taking parent, did not, in principle, justify the application of the exception.
The mother was genuinely in a state of fear and could not be expected to return to Israel.
She was locked in, beaten by the father, raped and threatened.
Some of these cases have considered arguments relevant to the issue of grave risk of harm, including where an abductor has indicated an unwillingness to accompany the returning child, see: [INCADAT Reference: HC/E/ 1169] In this case, the ECrt HR upheld a challenge by the left-behind father that the refusal of the Turkish courts to return his child led to a breach of Article 8 of the ECHR. Aucune preuve ne laissait penser qu'un retour en Australie menacerait la sécurité de l'enfant, car la législation australienne assurait la protection des enfants contre des mauvais traitements exercés par un membre de la famille.