The
Constitutional Court issued an important ruling concerning cases involving the
return from Türkiye of children whose habitual residence is abroad and who are
living in their habitual residence. In its decision, 04.03.2026 and with
application nr. 2025/16250, the Constitutional Court held that the right to
respect for family life had been violated. The decision was published in the
Official Journal on 8 June 2026.
Facts of
the Case: The applicant, Ş.G., and her former spouse divorced while they were
residing in the Netherlands. The couple had three children during their
marriage. The applicant mother travelled to Türkiye with the children in 2022.
Following the applicant’s failure to return to the Netherlands with the
children on the agreed date of return, the children’s father applied to the
Dutch authorities, alleging that the children had been wrongfully retained and
requesting the initiation of return proceedings pursuant to the Hague
Convention dated 25.11.1980.
The
first-instance court dismissed the request for the return of the children, and
the father appealed the decision. The appeal court also dismissed the appeal at
regional level. The father subsequently filed an appeal at supreme-court level.
During the appellate review, it was concluded that the children should be
returned to their father and issued a decision to quash the judgment. Following
a retrial, the court ordered the return of the children to the father. Although
the applicant mother appealed the decision, the judgment was upheld.
After
the judgment became final, the applicant mother lodged an individual
application before the Constitutional Court. In her application, she argued
that the children had been living in Türkiye for a long time, that their
education and social environment had been established there, and that they
could face physical and psychological risks if they were returned. The
applicant claimed that the courts had failed to adequately examine the
children’s best interests before ordering their return.
The
Constitutional Court’s Assessment: The Constitutional Court examined the
application under the right to respect for family life. The Court stated that,
in proceedings concerning the return of children, courts must not limit their
assessment to the application of the provisions of the Hague Convention alone.
They must also conduct a detailed assessment of the child’s best interests
based on the circumstances of the specific case.
The
Constitutional Court concluded that insufficient examination had been conducted
regarding the children’s current living conditions, social environment,
psychological well-being, and potential risks they might face. The Court found
that the assessments concerning the children’s best interests were inadequate.
For this reason, the Constitutional Court ruled that the right to respect for
family life, guaranteed under Article 20 of the Constitution, had been
violated.
In order
to eliminate the consequences of the violation, the Constitutional Court
ordered that the case file be remitted to the relevant court for a retrial and
that the children not be returned to their habitual residence during the
retrial process. Accordingly, the relevant court will be required to reassess
the children’s best interests and all circumstances of the case before issuing
a new decision.
In
international child abduction and child return proceedings, courts must not
base their decisions solely on the provisions of the relevant convention.
Decisions must be made following a comprehensive assessment that places the
child’s best interests at the center of the evaluation.
Source: https://www.resmigazete.gov.tr/eskiler/2026/06/20260608-5.pdf
