Hague Return Case: Constitutional Court Ruling 2025/3488

When a family living abroad breaks up, the dispute between the parent who returns to Türkiye with the child and the parent left behind often turns into a return case brought under the Hague Convention. The basic rule of these cases is speed: as a rule, the child is promptly sent back to the country of habitual residence. But can speed justify not investigating at all a serious risk the child may face? In a case where the court gave a return order without waiting for the evidence it had itself requested, the Constitutional Court has given a clear answer to this question.

By its judgment of 1 October 2025, application No. 2025/3488, the Second Section of the Constitutional Court unanimously decided, in proceedings ordering the return of a child to the United States of America (USA), that the right to respect for family life, guaranteed by Article 20 of the Constitution, had been violated. The judgment was published in the Official Gazette No. 33164 of 10 February 2026.

✈️ From the USA to Istanbul: background to the case

According to the judgment, the applicant mother married her husband, a German national, on 25 March 2016; the couple's daughter was born in the USA in 2017. The family lived in the USA. Because of problems with her husband, the mother came to Türkiye with her daughter on 9 March 2023 and filed for divorce on 17 March 2023.

The father applied to the US central authority for the return of the child under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The request was forwarded to the General Directorate of International Law and Foreign Relations of the Ministry of Justice, Türkiye's central authority; the Istanbul Chief Public Prosecutor's Office then brought a case before the Istanbul 14th Family Court to determine whether the child should be returned to the place of habitual residence.

In her reply petition the mother claimed that the reason for her return to Türkiye was the psychological, economic and physical violence shown by the father while under the influence of a substance; that the father regularly used a narcotic substance sold legally by prescription in the state where they lived; and that, because he had a serious health condition requiring intensive treatment, he could not look after the child. She also added that the child had spent most of her life in Türkiye.

📨 Letters rogatory sent but not awaited

At the mother's request, at the preliminary examination hearing on 5 December 2023 the family court started the process to obtain, through letters rogatory from the US authorities, the documents on the father's substance use and health condition, prepared the requests and sent them to the General Directorate. The mother also asked for a report, once these documents had arrived, on whether the return would place the child at serious risk.

Because the father was abroad, the social inquiry was carried out by interviewing only the mother and the child. According to the report of 13 March 2024 by a three-person panel, the child had adapted well to Türkiye in terms of behaviour patterns, language skills, academic development, social problem-solving skills and relationships with family members. The report also stated that the child often talked with her father by video call and wanted to see him if he came to Türkiye.

On 8 May 2024 the family court accepted the case and ordered the return of the child to the USA. According to the reasoning, the prescription submitted to the case showed that the father used medical medication, but there was no document from the habitual residence authorities about dependency or an investigation. The court also stressed that the mother had not included this claim in the divorce case and that the witnesses had not seen anything that would unsettle the child; because the proceedings had to be conducted urgently, it gave up the evidence it considered would not affect the result.

⚖️ The appeal and cassation stage

The applicant learned of the final decision on 27 January 2025 and made an individual application the next day. The Court also stressed that examining an interim measure does not mean examining the merits.

🧩 The Constitutional Court's criteria

The Court examined the application under the right to respect for family life and first recalled its established principles. Accordingly, every child has the right to maintain direct and regular personal contact with his or her parents, unless the child's interests require otherwise. The Hague Convention sets up a fast procedure providing for the prompt return of a child wrongfully removed or retained; apart from limited exceptions, return is mandatory. One of these exceptions is where return would expose the child to a risk of serious physical or psychological harm or otherwise place the child in an intolerable situation.

The criteria that stand out in the judgment are these:

🔍 The shortcoming that led to the violation

The Court noted that the social inquiry report showed that the child had adapted well to Türkiye and did not want to go to settle in the USA. The decisive point, however, is the process of collecting evidence: the lower court had itself written letters rogatory for the documents concerning the mother's claims, but gave up this evidence without waiting for the replies. The mother repeated this objection at the appeal and cassation stages.

According to the Constitutional Court, the lower courts reached their conclusion on the grounds that the use was prescribed and that the witnesses had no adverse observations; but they did not assess how the substance affects human behaviour, how often it was used, or what the father's health condition means for the care of the child. The reasoning, given without clarifying the concrete claims against the father and without investigating the conditions of the exception in Article 13 of the Hague Convention, was not accepted as relevant and sufficient to the extent required by the right to respect for family life.

The judgment stressed that the use of narcotic or stimulant substances is a phenomenon that threatens individual and public health, is defined as a crime in Turkish law, and can cause irreparable harm in the family environment, above all to children. It therefore stated that judicial authorities must carry out the necessary investigation and rule out possibilities that could damage the best interests of the child. The claim of a violation of the right to property, raised in connection with the legal representation fee, was not examined separately.

🔁 Retrial and interim measure

The applicant requested a finding of violation, a retrial and TL 250,000 in non-pecuniary compensation. The Court held that, under Article 50 of Law No. 6216, there was a legal interest in a retrial to remove the consequences of the violation, and sent the case to the Istanbul 14th Family Court (Docket No. (E.) 2023/695, Decision No. (K.) 2024/317). The compensation claim was rejected on the ground that the retrial would provide sufficient redress, and it was decided that legal costs of TL 35,064.40 in total, made up of a court fee of TL 5,064.40 and a legal representation fee of TL 30,000, be paid to the applicant.

Perhaps the most important part of the operative provisions is the one providing that the child is not to be returned to the place of habitual residence until the retrial is concluded. The Court also expressly noted, however, that the violation judgment does not signal a position in favour of accepting or rejecting the case, and that the power to assess the evidence belongs to the lower court.

🧭 Effect of the judgment on return cases

The judgment offers a concrete example of how the balance between urgency and careful investigation is to be struck. The approach set out in it can be summarised as follows:

• The principle of speed in the Hague Convention does not justify a court's giving up, without reasons, evidence that it has itself found necessary and requested.
• The fact that a substance is used legally and by prescription does not remove the need to investigate the effect of that use on the child.
• The absence of adverse observations by witnesses is no substitute for investigating the conditions of the exception.
• The adaptation findings in the social inquiry report must be assessed together with the investigation of the claim of serious risk.

The judgment does not conclude that return should be refused; it only finds that the claim of serious risk was not properly investigated. For a Court of Cassation decision dealing with parental consent for a child's travel abroad, see the article on the father's consent for a child's exit abroadTR, and for an assessment of the conflict between a social inquiry report and the child's view, see the article on the child's view in custodyTR.

❓ Questions people ask

For detailed information and legal support, you can contact Savun Law & Consultancy. Contact details are on the contact page, and the other articles in the series are in the Precedent DecisionsTR archive.