The ECtHR on the Hearing of the Child in Return Proceedings
The author of this post is Francesca Maoli, a researcher in international law at the University of Genova.
The handling of international child abduction cases raises human rights concerns. The solutions introduced by the 1980 Hague Convention and, in the EU, by the Brussels II-ter Regulation, have been interpreted in the light of children’s rights. This has considerably influenced not only the practice of courts and administrative authorities, but also the evolution of the legal framework.
The European Court of Human Rights (ECtHR) has played a central role in this regard. Examining applications against contracting States in the context of child abduction cases, the Court has stress-tested the relevant legal framework in the light of the right to respect for private and family life (Article 8 of the ECHR), shifting the balance between the need to ensure the prompt return of the child in the State of habitual residence and the necessary considerations on his/her best interests in the concrete case.
A ruling given on 9 September 2025 marks an interesting new development in this area. In M.P. and others v. Greece (currently only available in French), the ECtHR has focused, for the first time, on the obligations imposed by Article 8 ECHR on the courts dealing with return proceedings, from the specific perspective of participation rights of the abducted child.
The Court found that the Greek authorities had failed to adequately examine the appropriateness of hearing the children involved, also without providing sufficient reasoning in this regard.
Background and Facts
As explained in more detail in the official press release, the case concerned the wrongful retention of two children (born in 2016 and 2018 respectively) in Rhodes (Greece) by their mother, a Greek and US citizen.
The father – who had initially consented to the travel – filed an appeal before the Court of First Instance of Rhodes, requesting the immediate return of the children to their habitual residence in the United States under the 1980 Hague Convention. The application was firstly rejected, since the Court considered that the return would have resulted in a serious risk of psychological harm to the two children and/or an intolerable situation (within the meaning of Article 13(b) of the Hague Convention), in particular because they had been enrolled in school, had integrated into their new environment in Rhodes and would suffer from separation from their mother. The Court also noted that the father had a demanding job and did not have social support or help from family and friends for the daily care of the children. The decision was overturned by the Court of Appeal of the Dodecanese, which found that the conditions for the application of Article 13(b) of the Hague Convention were not met. In December 2023, the ruling was upheld by the Áreios Págos and the return of the children to the United States took place in December 2024.
In their application to the ECtHR, M.P. and the children complained of a violation of Article 8 ECHR by the Greek courts, as their return to the United States would have resulted in an unlawful restriction of their right to respect for family life. They also complained a violation of Article 8 ECHR because the Greek authorities had not heard the children, either directly or indirectly, in the context of the return proceedings.
The Ruling
In its ruling, the European Court of Human Rights has stated for the first time that national courts hearing a request for return following an international abduction, under the 1980 Hague Convention, are required to examine ex officio the appropriateness of hearing the child, providing adequate reasons for any failure to do so.
The Court points out that, in assessing compliance with Article 8 ECHR by the national authorities, it is necessary to verify that the decision-making process leading to a return order to the State of habitual residence was fair and allowed the persons concerned to fully assert their rights, in accordance with the best interests of the child. Reference is made, in particular, to the principles set out in the landmark judgments Neulinger and Shuruk v. Switzerland, application no. 41615/07, and X. v. Latvia, application no. 27853/09.
In this context, the ECtHR has indeed attributed a “double value” to the right of the child to be heard. Firstly, the violation of Article 8 ECHR was established from the perspective of the failure in ensuring child participation in the proceedings. Secondly, according to the Court, the last-mentioned omission has impacted on the application of the exception to the return of the child stated by Article 13(b) of the 1980 Hague Convention.
The Right to Participate and Be Heard in Return proceedings
To shape the fundamental right of the child to be heard and its application in international abduction proceedings, the Court refers to Article 12 of the UN Convention on the Rights of the Child, the European Convention of 25 January 1996 on the Exercise of Children’s Rights, as well as additional soft law instruments such as the recent Recommendation CM/Rec(2025)4 of the Committee of Ministers of the Council of Europe on the protection of the rights and best interests of the child in proceedings relating to the separation of parents.
On the basis of this regulatory framework, the Court finds that there is consensus among the States Parties to the ECHR on the obligation to provide children with a real and effective opportunity to express their views in proceedings concerning them, and to assist them in this regard through child-friendly tools and procedures. It follows that the national authorities are required to consider whether to hear the child, either directly or indirectly, giving adequate reasons for any decision not to do so.
In the present case, the Greek courts should have made an effort, in accordance with their obligation to act in the best interests of the child, to assess the appropriateness of hearing the children involved, regardless of any explicit request by the parties to that effect. The Court notes that at no point during the three levels of proceedings and over a period of approximately two and a half years were the children given the opportunity to express their views, without any explanation being provided to support that decision.
The Hearing of the Child in Relation with the Grave-risk-of-harm Exception
The reasoning of the ECtHR does not end with the plain statement that children should be heard in return proceedings, in compliance with the human rights standards incorporated in Article 8 ECHR. In the view of the Court, the violation of participation rights also has an impact on the correct application of the 1980 Hague Convention and in particular of the other exceptions to the immediate return rule. Of course the hearing of the child is necessary to assess his or her possible objection according to Article 13(2) of the Hague Convention. At the same time, the children’s views should have been a key element of the decision-making process of domestic courts when considering the application of the other exceptions, including the “grave-risk-of-harm” clause of Article 13(1)(b).
The ECtHR takes the opportunity to recall that the concept of “risk” in Article 13(1)(b) Hague Convention cannot be interpreted, in the light of Article 8 ECHR, as covering all the inconveniences necessarily connected with the situation in which the minor might find himself or herself in the event of return: this ground for refusal concerns only situations that go beyond what a minor can reasonably be expected to endure. The risk of psychological harm cannot derive solely from separation from the parent responsible for the wrongful removal or retention. Therefore, such separation does not in itself justify a non-return decision.
In any event, the hearing of the children involved should have played a key role in the judicial authority’s assessment, who in fact did not have – in the eyes of the ECtHR – sufficient information to make an informed assessment of whether the return would have resulted in a “grave risk” within the meaning of Article 13(1)(b) of the 1980 Hague Convention. In the light of the above, the return of the two children to the United States could not therefore be considered necessary in a democratic society.