Strasbourg awards damages in custody case

The court dealt with 349 applications concerning Switzerland in 2012 Reuters

The European Court of Human Rights in Strasbourg has awarded damages and costs to the mother of a Swiss-born child who lost access to her son due to Switzerland’s refusal to grant her a residence permit.

Granting the woman “just satisfaction” in her case, the court ruled on Tuesday that the refusal by the Swiss authorities for over six years to issue the Philippines national with a residence permit had breached her right to respect for her family life.

The applicant was awarded €16,000 (CHF19,750) in damages and costs of €13,000.

According to court documents, the applicant had a child in 2001 with a Lebanese man who had acquired Swiss nationality. The following year the cantonal population office ordered her to leave the country and she returned to the Philippines with the child.

In July 2004, she signed an affidavit authorising the father to have his son back in Switzerland for holidays, however the father failed to return his son to the Philippines as agreed.

Despite the fact that she held custody rights and parental authority in respect of the child, all her attempts to obtain his return to the Philippines were unsuccessful. Meanwhile her requests for leave to remain in Switzerland were all rejected.

Eventually in June 2010, custody of the child was awarded to the father. The mother had access rights which had to be exercised in Switzerland, although she had no authorisation to stay there. Relying on Article 8 of the European Convention on Human Rights – the right to respect for private and family life – the woman took her case to Strasbourg.

Kosovar family

In a separate judgment issued on Tuesday in a second case relating to Switzerland, the European Court of Human Rights held, by a majority, that Swiss authorities’ refusal to grant residence permits to three Kosovar children, illegally residing in Switzerland, was not a violation of their parents’ right to respect for family life.

The case concerned the Swiss authorities’ refusal to grant residence permits to the applicants’ three children, who were born in Kosovo and entered Switzerland illegally, and the authorities’ decision to expel the children to Kosovo.

The court considered that the applicants were living in Switzerland because of their conscious decision to settle there rather than in Kosovo, and that their three children had not lived in Switzerland for long enough to have completely lost their ties with their country of birth, where they grew up and were educated for many years.

The judgment, which also took into account “the at times untruthful conduct of the applicants in the domestic proceedings”, will come into force after three months if not appealed.