October 31, 2025
By Dr. Elena Patrizi
The recent judgement of M.P. and Others v. Greece (application no. 2068/24), decided on 9 September 2025, addresses the question of hearing children in international abduction proceedings, making a significant contribution to the evolution of the case law of the European Court of Human Rights (hereafter “the Court”) on this matter. For the first time, the Court clearly affirms the obligation of domestic courts to assess whether it is appropriate to hear the child before deciding whether to return him or her to a parent in cases of child abduction.
The case of M.P. and Others v. Greece originated from an application lodged by a mother and her two children (the applicants), who complained that, in proceedings brought by the former husband (hereafter “G.A.”), the Greek authorities, by ordering the children’s return to the United States without considering the possibility of hearing them, had violated Article 8 of the European Convention on Human Rights (hereafter “ECHR”), which guarantees the right to respect for family life.
The first applicant, a resident of Rhodes (Greece), met G.A., a dual Greek and American national, while on holiday on the island. She later decided to move to the United States, where she found employment, got married and had two children, born in 2016 and 2018. After an initial period of cohabitation, the spouse’s relationship became increasingly strained. In October 2020, with her husband’s consent, the first applicant returned to Rhodes with the children for a temporary stay of approximately four months. However, due to restrictions linked to the Covid-19 pandemic, she decided to extend her stay by a further four months. During this time, she enrolled the children in school, registered them with the Greek social security system and found employment in Rhodes. Considering that his wife had unilaterally decided to relocate the children permanently, G.A. initiated proceedings before the Greek judicial authorities in August 2021 under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, seeking the children’s return to the United States. In the meantime, the Seminole County Court (Florida) granted a divorce between the first applicant and G.A.
In May 2022, the Rhodes Court of First Instance found that the children’s continued stay in Greece amounted to wrongful retention within the meaning of Article 3 of the Hague Convention. However, it held that their return to the United States would involve a grave risk, within the meaning of Article 13(b), exposing them to psychological harm and an intolerable situation. The Court noted that the children had by then become integrated into life in Rhodes, forming bonds with their peers and maternal relatives, and that returning them would place them far from their mother, who was unable to reside permanently in the United States. In July 2022, however, the Dodecanese Court of Appeal, hearing G.A.’s appeal, dismissed the existence of such a risk and ordered that the children be returned to their father in the United States. In January 2023, the first applicant lodged an appeal with the Court of Cassation, which was dismissed, thereby upholding the appellate judgment in its entirety. Consequently, in December 2024, the children were returned to the United States to live with their father.
As to the merits, the Court examined whether the interference with the right to respect for family life was prescribed by law and whether it constituted a necessary measure in a democratic society. On the first point, the Court noted that the decisions to return to the United States taken by the Greek authorities were provided for by law, as they were based on the Hague Convention, which had been transposed into Greek domestic law.
With regard to the second point, the Court assessed whether the return decision pursued the best interests of the two children and whether it ruled out the existence of a “grave risk” (Article 13(b) of the Hague Convention). The Court underlined that the domestic courts did not reach a unanimous agreement on the outcome of the case. While the Court of First Instance had concluded that there was a “grave risk”, the Court of Appeal and the Court of Cassation had ruled out such a risk, considering that the difficulties for the two children in reintegrating into the United States did not constitute an intolerable situation. More importantly, the Strasbourg Court chose to draw attention, on its own initiative, to the fact that the national courts examined all the documentation produced by the applicants and heard several witnesses, but they failed to hear the two children, who were approximately four and six years old at the time of the appeal hearing (2022). It observed that the proceedings had taken place over three levels of jurisdiction over a period of approximately two and a half years and that, during that entire time, the children had never been given the opportunity to express themselves. The national courts did not examine on their own initiative the possibility of gathering the children’s opinions nor did they explain the reasons for this omission in a reasoned decision. Regardless of whether or not the applicants had requested that the children be heard, the Court affirmed that the national authorities are nevertheless obliged to assess whether it is appropriate to hear them, either directly or in a manner appropriate to their age, and, if the national authorities decide not to do so, they must give reasons for that decision.
Consequently, the Court concluded that the Greek authorities had not used all means to assess whether there was a “grave risk” to the children, as required by Article 13(b) of the Hague Convention. It therefore held that their return to the United States was not justified in a democratic society and found a violation of Article 8 of the ECHR.
According to Judges Roosma and Hüseynov it was unclear to what extent the obligation to hear children applies to return proceedings governed by the Hague Convention, which has the specific aim of ensuring the swift return of abducted children and what weight it should have in determining whether there has been a violation of the ECHR. Firstly, the two judges pointed out that, according to the Hague Convention, the burden of proving the existence of a “grave risk” lies with the person opposing the return of the child. In their view, the first applicant had failed to do so, and the Greek courts had correctly assessed the evidence, consistently applying the principle that the concept of “grave risk” must be interpreted restrictively. For this reason, the return decisions were in the best interests of the children.
The second point of disagreement concerns the failure to hear children ex officio (“proprio motu”, §1) and the absence of reasoning on this point. The judges recognise that children have the right to express their opinion in proceedings concerning them, but specify that this right depends on their age, degree of maturity and national procedural rules and must be assessed on a case-by-case basis. According to the case law of the Greek Court of Cassation, the judge is required to hear the child only if he or she considers the child to be sufficiently mature, without having to give detailed reasons for the decision, as this is a discretionary assessment based on the evidence. In the present case, Roosma and Hüseynov observed that the children were too young to influence the outcome of the decision and that, moreover, the applicants had never requested a hearing or raised the issue before the Court of Cassation. Therefore, the failure to hear the children cannot be considered a failure to use all appropriate means to exclude a “grave risk” pursuant to Article 13(b) of the Hague Convention.
This decision represents a significant development in the case law of the European Court of Human Rights on the participation of children in international child abduction proceedings.
In cases of unlawful removal or retention of a child, the positive obligation under Article 8 of the ECHR translates into the implementation of concrete and timely measures aimed at facilitating the reunification of the remaining parent and the children, in full respect of the best interests of the child. In fact, according to the case law of the Court, “in all decisions concerning children, their best interests must be paramount” (X v. Latvia, §96). The obligations arising from Article 8 must be interpreted in the light of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and the Convention on the Rights of the Child of 20 November 1989.
The case in question concerns the right of two children to express their opinion on their return to the United States to live with their father. The Hague Convention does not explicitly provide for the right of the child to be heard. The Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Part IV – Enforcement, p. 28) emphasises that, when the Convention was adopted in 1980, it was not yet common practice in many countries to hear children in court proceedings. The only reference to hearing the child in the Hague Convention is found in Article 13(2), which introduces an exception to the general rule of returning the child. This provision allows judicial or administrative authorities to refuse to return the child if the child expresses opposition and has reached an age and degree of maturity such that it is appropriate to take his or her views into account (Gajtani v. Switzerland, §§106-114). This article gives the competent authorities the power, but not the obligation, to refuse to return the child if the child expresses opposition to being returned. The Guide to Good Practice points out that, in practice, hearing the child under Article 13(2) often takes place on the initiative of the parent who has retained or removed the child to support the child’s opposition to return.
The European Court attaches particular importance to the right of children to be heard in proceedings affecting them, recognising that this right is enshrined in numerous international and regional legal instruments. Among these, the Court refers to the United Nations Convention on the Rights of the Child (Article 12), the European Convention on the Exercise of Children’s Rights (Articles 3 and 6), the Charter of Fundamental Rights of the European Union (Article 24) and the Brussels II bis Regulation (Article 11) and II ter Regulation (Articles 21 and 26). These instruments guarantee the right of children to express their views and to have them taken into account in accordance with their age and maturity, although judges have considerable discretion in giving substance to the principle of the best interests of the child and their participation.
In its case law, the European Court has repeatedly referred to Article 12 of the UNCRC, emphasising that every child “has to be provided with the opportunity to be heard in any judicial and administrative proceedings affecting him or her” (M. and M. v. Croatia, §171). The Court has also specified that the wishes expressed by a child who has sufficient discernment are a key factor to be taken into account in proceedings concerning him or her (M.K. v. Croatia, §91; S.N. and M.B.N. v. Switzerland, §§112-115).
In the case in question, the Court took a further step regarding the hearing of children by establishing, for the first time in its case law, that national courts have an obligation to assess ex officio, and therefore even in the absence of a formal request by the applicants, the appropriateness of hearing children in proceedings concerning their rights and interests. In the case in question, the failure to consider the possibility of hearing the children constituted in itself a violation of Article 8 of the ECHR. In fact, although the proceedings lasted for more than two and a half years, the Greek authorities never considered the possibility of hearing the children, who were not involved in the decision-making process and never expressed their opinion on which parent they wished to live with.
The Court states that, where national courts decide not to proceed with the hearing of a child, they are required to expressly justify such a decision in their judgment, clearly and precisely explaining the reasons why the hearing was deemed inappropriate. In the present case, no such justification was provided. From the Court’s case-law, no absolute obligation arises for judges to always hear the child; rather, there is a duty to assess the possibility of doing so and, if the decision is made not to proceed, to provide adequate reasoning. It is important to emphasise that the principle of the best interests of the child constitutes the cornerstone of the entire framework governing the hearing of children. The European Court has indeed reiterated that requiring domestic courts always to hear a child in proceedings concerning his or her custody would go too far: it is for the judge to determine, on a case-by-case basis, whether such a hearing is appropriate, taking into account the specific circumstances of the case, as well as the child’s age and level of maturity (Giusto, Bornacin and V. v. Italy; Sahin v. Germany, §73). According to this decision, although judges retain a certain degree of discretion, this is now subject to the obligation to justify any decision not to hear children. The Court therefore emphasises that, in international abduction proceedings, the principle of expediency enshrined in the Hague Convention, while relevant, cannot take precedence over the obligation to assess whether to hear the child.
The Strasbourg Court further emphasises that age should not, in itself, constitute an obstacle to hearing a child. In the present case, the children were four and six years old at the time of the first hearing in September 2022. Referring to the Recommendation of the Committee of Ministers to member States on the protection of the rights and best interests of the child in parental separation proceedings (2025), the Court notes that there is now a broad consensus among States on the priority of effectively ensuring children’s right to be informed and to be heard. The Court also recalls that, where national law sets an age threshold below which a child is deemed incapable of expressing his or her views, States are encouraged to abolish such limits altogether, in order to guarantee every child the opportunity to be heard.
This reasoning is consistent with the UNCRC, which does not establish a specific age at which a child may be considered capable of forming his or her own views, but rather refers to an evolving concept, that of discernment. The capacity for discernment develops as the child grows and, above all, varies from case to case. In General Comment No. 12, the UN Committee on the Rights of the Child highlights that children may be capable of forming their own opinions from a very early age, even before they have acquired the ability to speak. Children can be regarded as capable of having an opinion as soon as they are able to understand the nature of the matter at hand. The capacity for discernment should therefore not be interpreted as something that emerges at a certain age, but rather as a factor that depends on each child’s level of development and ability to comprehend events.
In conclusion, the finding of a violation of Article 8 of the ECHR is based on the premise that the European Convention, together with other relevant international instruments establish a positive obligation on domestic judicial authorities to assess, ex officio, the appropriateness of hearing children in proceedings affecting their rights and interests. The failure of the Greek courts to comply with this obligation, in itself, constitutes the violation of Article 8. Thus, the Court firmly reasserts the centrality of the child’s right to be heard.
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