A. Doctrinal Approaches and Beyond

Before turning to what “going beyond judgments” concretely entails and how it is facilitated by the integration of law and anthropology, it is worthwhile to first introduce some of the peculiarities and methodological predispositions of a doctrinal approach to the study of case law in legal scholarship. Borrowing stylistically from Dembour,Footnote ² I express these peculiarities in the form of three “mottos”:

1. I. The Text of the Judgment is the Main Object of Study

Conventional legal scholars typically adopt what is known as a “black-letter law” or doctrinal approach, according to which the law can be exhaustively studied through reading legal texts issued by the nation-state. It follows that, when the purpose is to analyze case law more specifically, a doctrinal approach leads to placing almost exclusive attention on the text of the judgment issued by the competent—state—court. The text of the judgment is considered the only, or, at least, the most legally relevant material to study in analyzing the court’s approach to the legal question at stake. In the context of the ECtHR, this view and methodological predisposition leads to the assumption that, in cases where there is a verdict of violation, the judgment will have direct and beneficial effects on the legal and social realities it deals with. In other words, adopting a doctrinal approach risks missing the potential disconnect between the legal and the human/social outcomes of a case—namely, between a legal verdict and its real-life consequences on those involved in the litigation, particularly on the applicants.

1. II. The Judgment is the Result of “Pure” Legal/Judicial Craft

The focus on the text of the judgment as the main object of study also entails a narrow appreciation of the ways in which the judgment came into existence. Rather than acknowledging the “creative moves” which make judicial interpretation, the judgment is presented as “inevitable or obvious,” as “expressions of indisputable fact.”Footnote ³ The courtroom is conceived as a sterile environment, free of external interference. The court is depersonalized and viewed only as an institution rather than as a group of professionals and—even prior to that—human beings bringing to the bench a range of experiences and perspectives and, therefore, inevitably contributing subjectivity to decision-making. A doctrinal approach therefore tends to ignore or give only marginal attention to the socio-cultural processes through which the text of the judgment has been generated and to the variety of agents who have contributed to shaping litigation and its outcomes.

1. III. The Applicants Are Viewed as Merely Giving a Name to The(ir) Case

In doctrinal legal scholarship, scant attention is directed to the applicants. The name of the applicant appears in legal analyses only because it gives the case its name.Footnote ⁴ Individual experiences, expectations, motivations, and the impact of litigation on the individual applicant are generally not of legal interest. As eloquently explained by Zerilli and Dembour, “the socially stripped ‘applicant’ hardly matches the ‘real person’ who lives behind the legally constructed figure.”Footnote ⁵ This mismatch, Zerilli and Dembour continue, produces a “distancing and objectifying effect” toward the applicant.Footnote ⁶

These methodological predispositions continue to drive and shape most of the existing legal scholarship on the ECtHR and, more generally, research in the field of international human rights law, which is still predominantly doctrinal.Footnote ⁷ We are, however, witnessing an emerging academic interest in applying different research methods to the study of the Strasbourg case law, based on the growing conviction that doctrinal approaches alone may be insufficient to explore the causes, manifestations, and redress of injustice. Two sets of works, both of which are closely related to the approach taken in this chapter, deserve mention in this context.Footnote ⁸

The first falls under the umbrella of oral history research, which is to be understood as “the interviewing of eye-witness participants in the events of the past for the purposes of historical reconstruction.”Footnote ⁹ These works are characterized by a bottom-up, actor-centered approach and use oral history to gain insights into the experiences, motivations, and aspirations of a variety of agents of litigation. A notable contribution of this kind is the book A People’s History of the European Court of Human Rights by the journalist Michael D. Goldhaber.Footnote ¹⁰ As the author puts it, “this book is the story of how a few ordinary men and women have created the constitutional law for a continent.”Footnote ¹¹ In this work, therefore, the Strasbourg case law is told and studied through the personal tales of “heroic” applicants involved in a variety of landmark human rights disputes. Other more recent examples of oral history research on the Court include the article “Strasbourg Was Something New, It Was an Adventure” by Laurens LavrysenFootnote ¹² and the book Going to Strasbourg by the sociologist Paul Johnson.Footnote ¹³ The latter tells the story of how the ECHR has been used to challenge discrimination on the basis of sexual orientation in the UK from the “particular point of view” of fifteen individual applicants and four legal professionals and political campaigners who took part in litigation.Footnote ¹⁴ Lavrysen’s work has a different and wider scope of inquiry: It examines the actors and factors that contributed to the discovery of the ECHR in Belgium by relying on the oral history accounts of, mostly, lawyers who played an active role in constructing the cases that reached Strasbourg in the 1960s, 1970s, and 1980s.Footnote ¹⁵

The second set of relevant works are “anthropologically informed”Footnote ¹⁶ analyses of the ECtHR case law. In a recent chapter on methods, Marie-Bénédicte Dembour identifies four mottos that, in her opinion, are at the core of the anthropological method and define her approach to analyzing the ECtHR case law: (i) “aim at establishing how the small nitty-gritty stuff of social life connects with the big picture”; (ii) “pay attention to the gap between theory and practice”; (iii) “be aware of power relationships and their framing and silencing effects”; and (iv) “do not stop at surface level; always dig deeper.”Footnote ¹⁷ By applying the anthropological method to the specific case of M.S.S. v. Belgium and Greece, Dembour casts new light on the Grand Chamber’s judgment, where the conditions of detention and subsistence of the applicant asylum seeker—who had been expelled under the Dublin Regulation—were found to violate Article 3 (prohibition of torture, inhuman and degrading treatment or punishment) alone and in conjunction with Article 13 ECHR (right to an effective remedy).Footnote ¹⁸ Instead of representing a great victory for migrants’ rights, she reads M.S.S. as “showing how absolutely terrible conditions must be met before the Court finds it within itself to intervene on issues related to migration.”Footnote ¹⁹

Analyses of ECtHR case law can be anthropologically informed in a variety of ways.Footnote ²⁰ They do not need to be based on ethnography and might derive their anthropological quality from their “empirical character, attention to connections, context and the unsaid.”Footnote ²¹ “Going beyond judgments” can be seen as one of the many ways of developing an anthropologically informed analysis of the ECtHR case law. As the following sections illustrate, it entails approaching the case law with an open mind and building on empirical data as the starting point of the inquiry. By shedding light on the origins and reconstructing the context from which a legal case arises, “going beyond judgments” puts the researcher in a position to identify what was taken forward and what was left behind and, as such, what remains unsaid, unacknowledged, and undiscussed. In doing so, this approach shows that personal stories and narratives are part of judicial scrutiny—even if eventually marginalized in legal reasoning and scholarship—and, as a consequence, considers them as an object of study.

D. A Concrete Illustration: Rereading Neulinger and Shuruk v. Switzerland

As a concrete illustration of how “going beyond judgments” may be put into practice, this section focuses on the specific case of Neulinger and Shuruk v. Switzerland. Taking a self-reflective attitude, I will guide the reader along my intellectual path and choices, explaining and demonstrating what an anthropologically informed analysis of the case may involve and generate. Due to length constraints, certain aspects introduced in sections B and C will be given more attention than others. For the most part, the emphasis will be placed on the value of reading the text of the judgment against the context and life stories it comes from and treating personal testimonies as core data.

1. I. Neulinger and Shuruk v. Switzerland: Setting the Scene

In the case of Neulinger and Shuruk v. Switzerland, the first applicant, Isabelle Neulinger, was found to have abducted her child, Noam Shuruk, the second applicant, from Israel and taken him to Switzerland. The Court had to decide whether the child’s return to Israel—pursuant to the Hague Convention on the Civil Aspects of International Child Abduction—would breach the right to respect for family life of the two applicants. While the Chamber ruled in favor of the Swiss government, the Grand Chamber found that enforcement of the return order would amount to a violation of Article 8 of the ECHR. This decision was received by most legal scholars as signaling a change of direction in the ECtHR case law on international child abduction and, more problematically, as undermining the aims and the functioning of the Hague Convention.Footnote ⁵⁰ While in earlier case law, evidence of grave risk of harm (Article 13b of the Hague Convention) represented the yardstick to determine whether a child could be returned, the Grand Chamber’s judgment in Neulinger and Shuruk placed states under the (extra) obligation to examine the merits of the case in depth before returning an abducted child.Footnote ⁵¹

This judgment was therefore widely criticized by legal scholars for requiring national authorities to depart from the logic of the Hague Convention, which envisages the abducted child’s prompt return to the country of habitual residence and a restrictive interpretation of the permitted exceptions (Article 13b), and to undertake a thorough assessment of the merits of the situation, to the detriment of the great procedural expedience required by the Hague Convention.Footnote ⁵² Related to this criticism, the Grand Chamber’s decision in Neulinger and Shuruk is also well known for the detailed consideration given to the principle of the child’s best interests, and—as former ECtHR judge Jean-Paul Costa put it—it remains, at least within the Court’s practice, a “leading authority” on this point.Footnote ⁵³ This is confirmed by the frequent citations this judgment consistently attracts in the ECtHR case law on Article 8 well beyond the context of international child abduction.

I became particularly intrigued by this case not immediately after it was decided, but in 2018, after reading a blog post entitled Justice from the Perspective of the Applicant: Meeting Ms. Neulinger.Footnote ⁵⁴ In this blog post, Simona Florescu shares some aspects of the first applicant’s experience at the Court, which she collected during a conversation with her. A point raised by Florescu that I found particularly interesting was the fact that, regardless of Isabelle’s success in stopping the enforcement of the domestic judgments ordering the return of her son to Israel, “she is still an abductor who wrongfully removed her son” according to both Switzerland and Israel.Footnote ⁵⁵ This specific point and, more broadly, the gap that this point seems to hint at between legal victory on paper and the concrete effects of the ECtHR judgment in the applicant’s life, pushed me to dig deeper into the case. I did a bit of online research on the applicant and discovered that she had written an entire book about her story, entitled Jamais vous n’aurez mon fils! Le combat d’une mère pour sauver son fils de l’emprise de religieux intégristes.Footnote ⁵⁶ I ordered and read the book all in one breath. I also contacted the ECHR archives to get hold of the whole case file, traced all correspondence between the Court and the parties, ordered the various submissions chronologically to reconstruct the flow of events, and carefully read all documents. I listened to the hearing of the Grand Chamber, available on the Court’s website, and—only after extensive desk-based research, when I felt really familiar with the facts of the case—I reached out to some of the agents of litigation and spoke to the applicant, Isabelle Neulinger,Footnote ⁵⁷ her legal representatives before the ECtHR (Alain and Patricia Lestourneaud) and in national proceedings (Marc-Etienne Favre), and two former ECtHR judges. In the early months of 2020, I had the pleasure of discussing—either in person or online—their involvement in the case Neulinger and Shuruk.Footnote ⁵⁸ Another voice I had access to—albeit indirectly—is that of the father, Shai Shuruk, who was authorized to act as a third party in the ECtHR proceedings and was represented by Moshe Zingel.

This immersion led me to analyze the case from a different, previously underexplored angle in legal scholarship. In particular, it enabled me to see the religious dimension of Neulinger and Shuruk, which, despite being so factually and substantially central to the case, has been lost in the Strasbourg meanderings. Before exploring how the case evolved, some clarifications are needed. For the purposes of the current reconstruction, I draw mostly from the applicant’s book and my exchanges with her. This means that much of the data collected through other interviews is not directly incorporated in the following account. The prominence of Isabelle’s voice should not be understood as my taking sides in the dispute or supporting a specific agenda, but rather as the consequence of, first, a conscious methodological choice and, second, availability of sources. As explained in Parts B and C, one of the scholarly moves pursued by the “going beyond judgments” approach is to bring applicants back into the frame in light of their foundational role and the Court’s primary duty to deliver individual justice. Moreover, as the main applicant, Isabelle’s submissions constitute the largest part of the case file. Shai was authorized to act as a third party, but his submissions are significantly smaller in length as well as in number. Moreover, while I had direct access to Isabelle’s personal testimony through her book as well as through interviewing her, the same exposure to Shai’s perceptions and experiences has not yet been possible.

1. II. Neulinger and Shuruk v. Switzerland Before Arriving in Strasbourg

This section reconstructs the status quo preceding the legal dispute that ultimately reached the ECtHR. To this end, it includes a detailed account of some critical aspects of the applicants’ lives, primarily taken from Isabelle’s book Jamais vous n’aurez mon fils! and confirmed by her during our conversations.Footnote ⁵⁹ The style of the following paragraphs is purposefully narrative. As explained above, one of the key methodological moves characterizing “going beyond judgments” is to give voice to the people involved, especially to the applicant. The narrative form is particularly suitable to operationalize this aspect, as it creates space for acknowledging the lived experience of the applicants and captures how Isabelle tells her own story. As Constable has compellingly argued, attending carefully to language is important for understanding law:Footnote ⁶⁰ “Neither law nor justice is simply what lawyers and judges say nor even what officials and scholars more broadly claim they are.”Footnote ⁶¹ Rather, justice today depends on how claims and counterclaims are said and unsaid, heard and unheard in the name of the law.Footnote ⁶² The power of narrative has also forcefully emerged from a wide range of feminist judging projects that emphasize how critical presenting the facts of a case as a story can be to the legal reasoning and outcome.Footnote ⁶³ Judges exercise enormous power when constructing and relaying the facts of a case.Footnote ⁶⁴ “By listening to narratives, contextualizing disputes, and utilizing knowledge acquired through life experiences,”Footnote ⁶⁵ the individual applicants are placed at the center of legal analysis and the effects of the law on them become apparent. Narrative may therefore be used as a “method of subverting and disrupting the dominant legal discourse.”Footnote ⁶⁶ As such, telling silenced, untold, or overlooked stories “can and do[es] effectuate (gender) justice change by empowering people, changing perspectives, opening up new learning, and affecting future legal and nonlegal outcomes.”Footnote ⁶⁷

Isabelle was born and raised in Belgium. Like many of her friends belonging to the Jewish communities of Brussels and Antwerp, she attended a secular school and grew up in a pluralist environment while remaining very attached to her Jewish identity.Footnote ⁶⁸ She moved to Switzerland for work, and there she married a man who, unfortunately, died at a young age. After a short vacation in Eilat, Israel, with her cousin, Isabelle has what she calls “the revelation”:Footnote ⁶⁹ Israel is where she wants to continue her life.Footnote ⁷⁰ To prepare for the move, she met the rabbi of the Israelite community of Lausanne, who supported Isabelle in her plan and provided her with a proof of “Jewish heritage” necessary to migrate to Israel.Footnote ⁷¹ After obtaining her visa from the Israeli consulate, she was finally able to move to Israel in October 1999.

A few months later, she met Shai who, after dating for a while, organized a surprise, intimate wedding on the day of Lag Ba’Omer, an annual Jewish festival.Footnote ⁷² Upon Isabelle’s wish, they formalized their union before a rabbi.Footnote ⁷³ Shai, who had been raised in a secular family and had never been to a synagogue before,Footnote ⁷⁴ became more and more a practicing Jew and asked Isabelle to study and observe the laws of family purity.Footnote ⁷⁵ After a miscarriage, Isabelle was pregnant again and, in 2003, Noam was born after a long labor and in the absence of his father.Footnote ⁷⁶ When Shai arrived at the hospital, he avoided any physical contact with Isabelle; he considered her impure until the post-partum bleeding ended.Footnote ⁷⁷ During a trip to visit her family in Europe, the reality of the situation smacked Isabelle in the face: Shai had changed. The funny, open, and secular professor of physical education who had seduced her now lived only by and for the Halakha—the Jewish religious law.Footnote ⁷⁸ When Isabelle’s maternity leave came to an end, Shai became a stay-at-home father—as they had agreed before Noam’s birth.Footnote ⁷⁹ It was around that time that Shai joins the ultra-Orthodox Jewish Lubavitch movement. He spent his days at a rabbi’s, praying and studying the Torah, with Noam, while Isabelle went to work. He became more and more controlling and imposed a radical lifestyle on Noam and Isabelle, until she reached the point where she felt that she “must leave that man, at the cost of losing her identity.”Footnote ⁸⁰

This is the point where Isabelle’s and Noam’s life experiences become relevant for the law. Fearing that Shai could take Noam to a Lubavitch community abroad, Isabelle applied to the Tel Aviv Family Court to forbid Noam’s removal from the country. Only when she received the court’s “Stop Exit Order” did she realize that it would last until Noam turned eighteen.Footnote ⁸¹ As an interim measure, she was given temporary custody of Noam, and Shai maintained visitation rights.Footnote ⁸² In point of fact, Shai, Isabelle, and Noam continued to live under the same roof as Shai refused to leave. In the meantime, Isabelle learned that she was pregnant again. She wanted to have an abortion, but Shai disapproved. Following a report by social services, the family court awarded Isabelle permanent custody and ordered Shai to pay child maintenance, which he never paid.Footnote ⁸³ When Isabelle told social services about “the climate of terror that [she] experience[s] in [her] daily life, under threat and harassment,”Footnote ⁸⁴ they officially recommended a separation and prohibited Shai from taking Noam with him for long hours at the synagogue or while he was proselytizing and collecting funds for the Lubavitch community on the streets.Footnote ⁸⁵ When Shai received the letter from social services, he threatened to kill Isabelle. The family judge issued a restraining order, prohibiting Shai from entering or even approaching Noam’s daycare center and the apartment where Isabelle and Noam continued to live. The next morning, Shai left the apartment and, a few months later, granted Isabelle a get. They were now officially divorced, yet, as Isabelle writes in her book, “the most complex things are still to come.”Footnote ⁸⁶

As the above account suggests—and will be confirmed by Isabelle’s submissions before the ECtHR—the source of what will then become Neulinger and Shuruk v. Switzerland is a parental disagreement over the child’s religious upbringing. As Isabelle writes, she feared Shai would never leave them alone even after the divorce. She was sure she would not be able to raise Noam as a happy child in Israel, because they would never be able to get away from the fanaticism of his father.Footnote ⁸⁷ If Shai was ready to take Noam proselytizing and fundraising when he was a baby, she asks herself:

Parental choices affecting the daily life and the upbringing of Noam were therefore at the crux of the personal dispute and, as explained in the following section, religious freedom will also form part of Isabelle’s legal claims.

It was almost spring, and Isabelle wanted to go visit her family in Switzerland. She sought the court’s permission to leave the country with Noam, but her request was rejected. Isabelle is de facto hostage in Israel.Footnote ⁸⁹ She had no choice—she must flee.Footnote ⁹⁰ In the meantime, Shai made his first official request to the social services: He wanted Noam to attend a religious daycare center.Footnote ⁹¹ With the help of a smuggler, Isabelle and Noam crossed the Israeli border at Taba by car and arrived in Egypt, where they then boarded a flight from Sharm el Sheik to Geneva.

This is the moment where what Isabelle calls “the fight” starts.Footnote ⁹² In June 2006, Shai started proceedings for the return of his son to Israel in accordance with the Hague Convention. In August 2006, the Justice of the Peace of the district of Lausanne rejected Shai’s request on the grounds that there was a grave risk that Noam’s return to Israel would expose him “not only to physical but especially psychological harm and would place him in such an intolerable situation to compromise his development and the protection of his interests.”Footnote ⁹³ This decision was upheld in May 2007 by the Vaud Cantonal Court, which considered Noam’s case an exception to the principle of prompt return in accordance with Article 13(b) of the Hague Convention. However, the Swiss Federal Court ruled that there was no obstacle to Isabelle’s return to Israel and that Noam would not be exposed to any grave risk of harm if he returned with his mother. Isabelle was therefore to return Noam to Israel by the end of September (2007) that is, six weeks after the hearing before the Federal Court. The return order confronted Isabelle with “an impossible choice”: The Swiss federal judges made her understand that if she is a good mother, she will accompany her child back to Israel. But returning to Israel means entering the lion’s den and being prosecuted and jailed for likely many years.Footnote ⁹⁴

It was September fourth, and what Isabelle calls a “miracle” happened: She was introduced to Alain Lestourneaud, a French lawyer who suggested that she brings her case the ECtHR.Footnote ⁹⁵ On September twenty-fifth, 2007, Isabelle lodged an application with the ECtHR also on behalf of Noam. Two days later, the Court indicated interim measures to the government in accordance with Rule 39 of its Rules of Court, and the enforcement of the Swiss judgment was therefore suspended pending the outcome of the proceedings before the ECtHR. Noam would remain in Switzerland, but the most difficult part was yet to come. As Alain Lestourneaud explained to Isabelle, they would have to persuade the Court to revise its strict jurisprudence on the issue of returning children illegally removed from their country of origin, and especially to take the best interests of the child—her child—into account.Footnote ⁹⁶

1. III. Neulinger and Shuruk Arrives in Strasbourg

The case arrives in Strasbourg with its original context still intact. The applicants open their exposé des faits by introducing Isabelle as Jewish.Footnote ⁹⁷ Shai is described as also being Jewish and, since 2003, a member of the Jewish ultra-orthodox Lubavitch movement. The Lubavitch—so the applicants explain—is a “radical movement … practicing an intense proselytism” and requiring women to cover their hair and boys to be sent to religious schools called Heder from the age of three.Footnote ⁹⁸ As the first applicant made clear from the beginning, her reasons for fleeing Israel with Noam and, therefore, the source of the dispute have to do precisely with this: “It was the changed behavior of Shai, as well as his new and sudden radical religious demands imposed on Isabelle and Noam” that triggered the major tension between them and serious marital difficulties.Footnote ⁹⁹ Apart from the source of the dispute, the applicants also introduce the religious freedom dimension of the case. They argue that the implementation of the return order would breach their right to respect for private and family life, Article 8 ECHR, taken separately and in conjunction with Articles 3 and 9 ECHR. In particular, they argue, enforcing Noam’s departure without his mother would constitute inhumane treatment of both mother and child, in breach of Article 3, as well as a violation of Article 9 ECHR, freedom of religion, since “the father, as he had himself acknowledged, would then immediately and unilaterally subject his son to the precepts of the religious ultra-orthodox community Lubavitch, from which the applicant wishes to distance their child” at least until Noam is of age and able to decide for himself.Footnote ¹⁰⁰

The factual and substantial centrality of the religious freedom dimension can also be inferred from the text of the father’s first submission as a third party. First, he condemns the applicant’s description of the Lubavitch movement as “false,” describing it more positively as promoting “learning, spirituality, giving and sharing, and doing good deeds.”Footnote ¹⁰¹ Second, he considers Isabelle’s reliance on Article 9 to be “not only misplaced, … but also cynical and ironic” because—in his view—she “cannot represent … her chosen lifestyle as superior to that of an observant Jew.”Footnote ¹⁰² Third, as to the future education of Noam, Mr. Shuruk submits that Isabelle, being the residential parent, “can choose any education she prefers for the Minor, secular or otherwise.”Footnote ¹⁰³ However, during contact sessions, “he is, and should be, free to expose the Minor to his lifestyle and beliefs.”Footnote ¹⁰⁴

Each parent’s religious freedom and the religious upbringing of the child were, therefore, a central point of disagreement between them, and that is clearly reflected in their written submissions. Once within the ECtHR premises, however, this dimension gradually fades away and the case in general seems to lose most of the context it originated from. Through various steps—which will be explained in the following paragraphs—the case comes to assume an increasingly neutral framing. As the case progresses within the ECHR system—Chamber’s assessment on admissibility; Chamber’s ruling on Article 8; Grand Chamber’s decision—the Court’s attention shifts away from the source of the dispute as well as from the religious freedom dimension of the case. From being strongly imbued with religious considerations, Neulinger and Shuruk evolves into an “ordinary” case of international child abduction.Footnote ¹⁰⁵

This evolution occurs through various steps: First, the definition of the scope of the Court’s review as limited to Article 8 ECHR; second, the Chamber’s adoption of an abstract notion of the child’s best interests; third, the passage of time and the Grand Chamber’s majority selective scrutiny of Shai’s ability to act as a “good father.”

1. 1. The Chamber’s Detached Approach

Despite the applicants’ attempt to bring in the religious freedom dimension by explicitly invoking Article 9, Section 1 of the ECHR, the Court considered only the complaint under Article 8 admissible. As concerns the other complaints, Articles 3 and 9, they were rejected on the grounds of non-exhaustion of national remedies because the applicants had failed to raise them—even in substance—before domestic courts.Footnote ¹⁰⁶ This entailed only the formal exclusion of religious freedom from the scope of the Court’s assessment.

The Court was nonetheless in the position of substantially addressing the religious freedom dimension of the case in the context of Article 8. This dimension is indeed present and prominent in the applicants’ submissions, part of which are included by the Chamber in the text of the judgment. The applicants underlined the risk that Isabelle would be subject to a criminal sanction—most likely imprisonment—if she returned to Israel, and the major psychological trauma this would cause to Noam.Footnote ¹⁰⁷ Due to the father’s radical position, the applicants had also ruled out any possibility that Isabelle and Shai might agree on the religious upbringing of their child.Footnote ¹⁰⁸ He had attempted to impose a radical lifestyle on his wife and child that would have included, for instance, requiring Isabelle to cover her hair and Noam to attend religious Heder schools starting at the age of three.Footnote ¹⁰⁹ It was therefore her duty—so Isabelle argued—to remove her child from that “fanatical” environment.Footnote ¹¹⁰ According to the applicants, therefore, if returned to Israel, there was a great risk that Noam would be exposed to physical or psychological harm because of the following factors:

In its assessment, the Chamber started by holding that the child’s removal to Switzerland had been wrongful: The father exercised—jointly with the mother—parental rights, which—according to Israeli law—also included the right to determine the child’s residence.Footnote ¹¹² Isabelle had therefore, according to the Hague Convention, committed an abduction and, as a consequence, the Swiss Federal Court’s return order had a sufficient legal basis. Furthermore, the return order was considered to be in pursuit of a legitimate aim, namely the protection of the rights and freedoms of Noam and his father.Footnote ¹¹³ In addressing the allegations concerning death threats and religious fanaticism, the majority noted that several measures had been taken by the Israeli authorities to protect the applicants when they were still living in Israel: The prohibition against taking Noam out of Israel until the age of eighteen; the social services’ order to live apart; the family court’s order that Shai must stay away from Noam’s daycare and their apartment, and could have only supervised contact with Noam.Footnote ¹¹⁴ Criminal proceedings against Shai were discontinued because of the applicant’s departure, so the Chamber explains.Footnote ¹¹⁵ According to the Chamber, therefore, Israeli authorities had made the efforts to protect the applicants against “potentially fanatical and aggressive conduct on the part of the father.”Footnote ¹¹⁶ Moreover, Noam, being almost six years old, was “still at a perfectly adaptable age.”Footnote ¹¹⁷ The inconvenience that Isabelle and Noam would have faced if returned to Israel would have been—according to the Chamber—“largely the result of a decision taken unilaterally by the first applicant herself.”Footnote ¹¹⁸ “There is no doubt”, so the judges continued, “that it is in the best interests of every child to grow up in an environment that allows him or her to maintain regular contact with both parents.”Footnote ¹¹⁹ It is therefore Isabelle’s responsibility to reach an agreement with Shai about the child’s religious upbringing, which is a matter for both parents.Footnote ¹²⁰ There is no evidence—according to the Court—that Isabelle will not be able to influence Noam’s religious education or that the Israeli authorities will be unable to prohibit the father from sending the child to a Heder school.Footnote ¹²¹ Hence, the Chamber found, by four votes to three, that implementing the return order would not breach Article 8.

As the above suggests, in spite of focusing on Article 8, the Chamber’s reasoning accounted for the religious freedom dimension of the case, but in a rather detached and formalistic manner.Footnote ¹²² The Chamber—most likely unwittingly—seems to ignore or at least to significantly downsize many of the personal challenges Isabelle and Noam had to face, especially before fleeing. Much of their lived experience, as told in Isabelle’s book and to some extent also in her submissions to the Court, is kept out of the judicial assessment. The Chamber’s proportionality analysis appears driven by an abstract notion of the child’s best interests as a priori growing up with contact to both parents, and its “mechanical” transposition in the specific case. Interestingly, therefore, the Chamber does, at the same time, address and sidestep the religious freedom dimension of the case. As a consequence of the Chamber’s abstract notion of the child’s best interests, Neulinger and Shuruk receives a further touch of neutrality and prepares itself for being adjudicated as an “ordinary” case of international child abduction.

1. 2. The Grand Chamber’s Decision: Further Shifting Away

The Chamber’s decision, however, was not final. Upon the applicant’s request, the case was referred to the Grand Chamber. Before the latter had heard and decided the case, both parties made further submissions, reiterating the central role of religion in their disagreement. In an attempt to counter the referral, the father praised the Chamber’s decision for the “stability” it brings to the rule of law in Europe. Stability is, in his view, also a value at the core of the Chabad religious movement, which is a “legitimate movement,” “accepted” and “famous all over the world.”Footnote ¹²³ In the summary of facts submitted on behalf of Isabelle, her legal representative found it important to emphasize once again that “the present case situates itself within a very particular religious context:” The father had joined the ultra-orthodox Lubavitch movement and tried to impose “radical” religious precepts on her and their child that are “incompatible with her secular beliefs and her status as a woman.”Footnote ¹²⁴ This aspect of the case, however, will remain unaddressed by the Grand Chamber.

In a vote of sixteen to one, the Grand Chamber found a violation of Article 8.Footnote ¹²⁵ What proves decisive in overturning the previous ruling is the different weight attached to the best interests of the child, and specifically Noam’s best interests, in the proportionality analysis. The Grand Chamber starts by explaining that the child’s best interests comprise two aspects in particular: On the one hand, “it dictates that the child’s ties with its family must be maintained” except in exceptional circumstances; on the other hand, it is also in the child’s interest “to ensure its development in a sound environment.”Footnote ¹²⁶ The principle of the child’s best interests is—so the Grand Chamber continues—also inherent in the Hague Convention and should be the primary consideration for competent authorities when examining whether, upon return, there would be a grave risk that the child would be exposed to physical or psychological harm.Footnote ¹²⁷

When applying these principles to the case of Neulinger and Shuruk, the Grand Chamber emphasizes the need to take into account new developments that had occurred in the case since the Swiss Federal Court’s return order. In particular, they note that Noam, who has Swiss nationality, had arrived in Switzerland at the age of two and lived there ever since.Footnote ¹²⁸ He had settled well into his new environment, attending a municipal secular daycare center and a state-approved private Jewish daycare center.Footnote ¹²⁹ When the case was pending before the Grand Chamber, Noam was already in school and spoke French.Footnote ¹³⁰ In light of these circumstances, even if—being seven years of age—he still had some ability for adaptation, “the fact of being uprooted again from his habitual environment” could not be considered beneficial.Footnote ¹³¹

The Grand Chamber’s concern was, therefore, to avoid disrupting solidified relationships and, more generally, a consolidated state of affairs. This is not novel. As argued by Uitz, it often happens that, by the time a case reaches an appeal court and even more so the ECtHR, the judicial decision becomes essentially concerned with “the emergence of a status quo and the costs (material and emotional) of altering it” as a result of the pending judgment.Footnote ¹³² The court’s shifted attention, in turn, often means that “the religious liberty dimension quickly—and somewhat conveniently—fades away.”Footnote ¹³³ This applies to the case at hand, too, but with a caveat: The further into the ECHR machinery that the case progresses, the more the source of the dispute and the religious dimension of Neulinger and Shuruk is pushed to the peripheries of the judicial analysis. Yet, focusing more specifically on the Grand Chamber’s reasoning, this shift was not only the product of Noam’s development and integration becoming prevalent with the passage of time.

When imagining and reflecting on the long-term projections of the initial order to return Noam to Israel, the Grand Chamber expresses concerns about the ability of Shai to be a “good father” to Noam. Interestingly, however, the Court abstains from any consideration regarding the potential impact of the father’s religiosity on Noam and rather focuses on his eventful marital life and his failure to financially provide for his children. In particular, it notes that Shai had remarried and, after a few months, left his new wife, who was pregnant.Footnote ¹³⁴ He then married a third time.Footnote ¹³⁵ His second wife had also initiated proceedings against him for failure to pay child maintenance.Footnote ¹³⁶ The Grand Chamber doubts that “such circumstances … would be conducive to the child’s well-being and development.”Footnote ¹³⁷ Furthermore, in the scenario where Isabelle would have to face imprisonment in Israel, the Grand Chamber has doubts as to the father’s ability to take care of Noam, not only in light of “his past conduct and limited financial resources,” but also considering that they had lost contact since Noam’s departure.Footnote ¹³⁸ In light of the above, the Court considers that Isabelle’s and Noam’s right to respect for private and family life would be breached if the return order were to be enforced.

As the above considerations indicate, it was not just the passage of time, but also Shai’s non-compliance with certain features of “good fatherhood” that led the Grand Chamber to find a violation of Article 8. The central weight attached to this second element becomes even more evident when the judgment is read in light of the recording of the public hearing before the Grand Chamber. After the pleadings of Isabelle’s legal representatives and the government’s agent, Mr. Schurmann, the judges were given the chance to ask questions to the parties. Some judges, in particular Judge Jočienė and Judge Malinverni, took this opportunity to dig deeper into some aspects of Shai’s private life. Among other topics, Judge Jočienė inquired about the financial situation of Noam’s father and whether he would be able to ensure his child’s best interests.Footnote ¹³⁹ Judge Malinverni required clarification regarding the remarriage(s) of Shai, which Patricia Lestourneaud had referred to in her pleading, and also asked whether, in the absence of Shai, there was a paternal figure in Noam’s life. Judge Malinverni’s concerns are then also reflected in the text of his concurring opinion, where he explicitly mentions “the discovery of the real personality of Noam’s father,” in combination with the passage of time, as the factors underlying his departure from the conclusion previously reached by the Chamber, where he had supported the conclusion that the Noam’s return to Israel would not have violated the applicants’ right to respect for family life.Footnote ¹⁴⁰

As Isabelle put it, while “the first judges (Chamber) never scratched the surface,” the Grand Chamber’s judges “went much deeper into the facts” and proved genuinely concerned with “the everyday aspects of the case.”Footnote ¹⁴¹ Despite its willingness to do so, however, the Grand Chamber still preferred not to venture onto the uneasy terrain of religion. In other words, even when the father’s profile was placed under scrutiny, his religiosity and the repercussions on the child’s well-being and mother’s rights did not occasion any explicit mention. The majority was able to make the argument that Shai was an unreliable and irresponsible father by focusing on the circumstances following the Chamber’s ruling and staying on the safer terrain of divorce and child support. In other words, the Grand Chamber managed to focus its reasoning on the harm that returning to Israel would cause to Noam without referring to, and potentially discrediting, the father’s religious beliefs and their potential impact on the child. After being sidestepped by the Chamber, therefore, the religious dimension of the case is—once and for all—excluded by the Grand Chamber.

1. IV. Neulinger and Shuruk after Strasbourg

The Strasbourg case law (and lack thereof) on religious freedom has attracted wide scholarly attention, and one recurring argument is that the Court has often tried to avoid directly addressing the “religious question.”Footnote ¹⁴² For many decades, Article 9 ECHR appeared as if “it was going to be effectively a dead letter.”Footnote ¹⁴³ Up until 1989, the European Commission of Human Rights concluded “in almost all cases brought under Article 9 … that the facts at stake did not disclose any appearance of violation.”Footnote ¹⁴⁴ Applications were therefore held inadmissible and never reached the Court. Since the abolition of the Commission, all cases have gone directly to the Court. The Court has nonetheless shown “significant trepidation in deciding issues of religious freedom” and, for several years, claims brought under Article 9 were consistently decided under other ECHR provisions.Footnote ¹⁴⁵ Even if the case law under Article 9 has seen some progressive, active growth, especially over the last two decades,Footnote ¹⁴⁶ the Court persists in its tendency to approach matters of religious freedom and diversity through the lens of other articles, certainly in the context of family life.

In the face of disputes arising from religious disagreements between the parents, the Court has manifested a strong preference for framing and settling the issue in terms of Article 8. In this context, Article 8 and the possibility of relying on a well-established body of jurisprudence pertaining to the less controversial area of child arrangements following separation/divorce represent, indeed, an easy way out. As a result of this approach, the religious freedom dimension of these cases has often been pushed to the margins of judicial analysis, not only formally but also substantially. In addition to not considering these cases under Article 9, the Court has also tended to approach them as “ordinary” parental disputes, denying religion any substantive influence in spite of its central factual relevance. As Uitz put it, by offering “a neutral frame of judicial analysis,” the Court has often bypassed the kernel of the dispute.”Footnote ¹⁴⁷ This has resulted in, among other effects, giving—or reinforcing—the impression that a religious way of life is just “an accident or a vis maior,” rather than “the result of conscious individual decisions about the good life” which are protected by the Convention.Footnote ¹⁴⁸

If read against this background, Neulinger and Shuruk comes across as a further manifestation of the abovementioned trend. As my reconstruction shows, the Court does indeed approach the case as a rather “ordinary” conflict within a family, leaving the deeper level—that is, the religious disagreement from which the conflict stemmed—off to the side or completely outside of the courtroom. In other words, the Court seems to strip religion from the story of Isabelle, Noam, and Shai to create an abstract and “ordinary” dispute, in line with the secularistic approach that characterizes the Court’s broader case law. Nonetheless, if we are to consider the applicant’s perspective on how the Court handled her case, the resulting image of the case is far more nuanced, and the contours more blurred, than the texts of the judgments would suggest.

Although she describes the religious dimension of the case as “crucial,” Isabelle also acknowledged that, had the Court focused their reasoning on religious coercion, she would probably have felt “very uncomfortable toward her Judaism and Jews.”Footnote ¹⁴⁹ A judgment of this kind would have placed her in a difficult position. As she put it, “[t]he perception among Jews is that Israel and Judaism are being attacked as it is. We do not need more attacks.”Footnote ¹⁵⁰ She also understands why judges “did not want to put their foot in the boiling water of the religious aspect”Footnote ¹⁵¹ in similar terms. In her view, they simply wanted to avoid all that would have come if they had reached a judgment centered on Shai’s religiosity, meaning “the attacks on Jews, the attacks from Israel, all sorts of attacks.”Footnote ¹⁵²

Yet these attacks could not be avoided after all. Based on Israeli media reports, the Grand Chamber’s judgment gave rise to claims of anti-Semitism and miscarriage of justice by both Israel’s Office of the Prosecutor and Shai Shuruk.Footnote ¹⁵³ According to them, the judges decided in favor of Isabelle because Shai is Israeli and ultra-Orthodox.Footnote ¹⁵⁴ In the words of Moshe Zingel, Shai Shuruk’s legal representative, “anti-Semitism leaked out from every single word of their ruling. They didn’t want to give us a right to speak, then they insisted we write only in French—they were hostile from the beginning.”Footnote ¹⁵⁵ At a personal level, Shai experienced the decision that Noam should remain in Switzerland as “heartbreaking.”Footnote ¹⁵⁶ He was sure the Court would rule in his favor and that he would be flying to Switzerland to bring Noam home after many years of delayed justice. Instead, “he lost his son” and, as a result, felt “broken inside.”Footnote ¹⁵⁷

Reflecting upon her expectations of “going to Strasbourg,” Isabelle felt that “she did not stand a chance” because previous ECtHR cases were consistently decided against the abducting parent and mechanically applied the Hague Convention’s principle of prompt return.Footnote ¹⁵⁸ Nevertheless, she followed Alain Lestourneaud’s advice to appeal before the Grand Chamber because it meant “buying time” and “planning for another life somewhere else.”Footnote ¹⁵⁹ Her initial assessment of the chances of her application being successful explains, among other things, her post-trial perception of the judges as “courageous” for ruling in her favor and the broader sense of humanity that she experienced, especially during the public hearing before the Grand Chamber.Footnote ¹⁶⁰ In Isabelle’s words, “I have had the impression that someone, in the icy corridors of justice, cast their eyes and hearts on us.”Footnote ¹⁶¹ In spite of all the complexities and technicalities that litigation—especially before an international court—entailed, she perceived the Court as “close to the people.”Footnote ¹⁶²

This perception stands even though, as Isabelle also explained, the Grand Chamber found “only” a conditional violation of Article 8—that is, a violation only if the Swiss authorities were to enforce the Swiss Federal Court’s return order for Noam.Footnote ¹⁶³ After the Grand Chamber’s ruling, Isabelle sought to reopen domestic proceedings to have the Swiss Federal Court reconsider and annul its original ruling. Her request was rejected precisely because of the conditional nature of the infringement found by the ECtHR. In other words, Swiss authorities considered themselves under no obligation to revise the substance of the domestic decisions as long as the return order was not enforced. It follows that, to date, after more than ten years, there is still a final domestic judgment ordering the return of Noam and, at least in principle, “if a zealous public servant takes this judgment into their hands, they might still require Noam to be sent back to Israel.”Footnote ¹⁶⁴

In spite of this, the ruling brought a major change in Isabelle’s life:

The ruling, therefore, had major liberating effects in Isabelle’s daily life, and the mental and physical freedom of movement she regained significantly outweighed what could appear as “legal technicalities.” Whether the finding of a violation was conditional or not, whether the Court examined the case under Article 3, 8, or 9, was not important for her: “What mattered was that, after ten years of hardship, I could finally breathe.”Footnote ¹⁶⁶

At the same time, Isabelle’s account demonstrates that going to Strasbourg is no small undertaking and can also produce a range of long-term, negative effects on applicants’ lives. Apart from having to bear enormous financial hardship, Isabelle experienced litigation as a “very traumatic process.”Footnote ¹⁶⁷ She could never get back to sleep normally. She could never get back to “normal,” more generally. In her words, “There is always something … that prompts me to stay alert even if there is no more danger.”Footnote ¹⁶⁸ Following the Swiss Federal Court’s judgment, there was a chance that the police would come and take Noam away from her. To cope with that risk, Isabelle unconsciously prepared Noam for a scenario in which he would have to be without his mother, for instance by exposing him to strangers. She taught him to survive without her and, in Isabelle’s words, “that was a terrible experience”: “[A] part of me closed because I could not stand the sufferings of being separated from him.”Footnote ¹⁶⁹ Perhaps what is most striking is that, despite all adversities, Isabelle still reflects on her litigation experience as “rewarding” and empowering: by going through all this, she realized that she actually had the strength to do it.Footnote ¹⁷⁰