Last Updated on April 28, 2019 by LawEuro
Communicated on 26 March 2019
FIFTH SECTION
Application no. 12354/19
Mariya Oleksandrivna SATANOVSKA and Oleksandr Georgiy Petrovych RODZHERS
against Ukraine
lodged on 27 February 2019
STATEMENT OF FACTS
The first applicant, Ms Satanovska Mariya Oleksandrivna, is a Ukrainian national who was born in 1977. The second applicant Rodzhers Oleksandr Georgiy Petrovych, is a Ukrainian and British national who was born in 2011. The applicants live in Kyiv, Ukraine. They are represented before the Court by Mr O.V. Zarutskyy, a lawyer practising in Kyiv.
A. The circumstances of the case
In 2010 the first applicant married P., a British national. On 25 September 2011 their son, the second applicant, was born. Until 2012 they lived in the United Kingdom.
On 11 April 2012 the applicants and P. came to Ukraine. On 14 April 2012 P. returned to the United Kingdom without the applicants. In July 2012 he instituted a procedure under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”) for the return of the second applicant to the United Kingdom. Due to this in December 2012 the Kyiv City Department of Justice, acting in the interests of P., lodged a claim with the Pechersk District Court of Kyiv (“the District Court”) for the return of the second applicant to the United Kingdom. The case was on several occasions examined by the courts of three instances.
On 27 May 2016 by its decision, upheld on 21 September 2016 by the Kyiv City Court of Appeal, the District Court dismissed the claim.
Based on the documents submitted by the first applicant the courts found that her son was well settled in a new social environment and well adopted to his mother’s family. In particular, they noted that the second applicant lived in a separate apartment belonging to his mother, went to the educational institution corresponding to his age, received relevant medical treatment and had appropriate material conditions.
The courts also referred to three reports of psychological examination of the second applicant prepared in 2013 and 2015. According to those reports the second applicant perceived his place of residence in Ukraine as a permanent and comfortable place for him and his family. The reports stated that return of the second applicant to the country of origin would expose him to serious risk of psychological and physical harm.
The psychologist who had examined the second applicant gave testimonies to the same effect.
Referring to, among other authorities, Article 13 § 1(b) of the Hague Convention the courts established existence of a serious risk that the second applicant’s return to the United Kingdom would expose him to psychological harm.
On 29 August 2018 the Supreme Court of Ukraine (“the Supreme Court”) quashed the above decisions and ordered to return the second applicant to the United Kingdom. It held, among other things, that:
“The courts of first and appeal instances turned to establishment of circumstances, that, in the context of aims and purposes of the Hague Convention of 1980, were not to be examined within the proceedings concerning the return of a child, in particular, whether mother and father owned any dwelling; whether they had possibility to ensure appropriate life conditions of a child; the issue of psychological attitude of the child towards each of parents; the issue of undertaking by mother of father’s duties relating to care, material support and upbringing of the child in Ukraine”.
As regards the risk of exposure of the second applicant to serious harm in case of return to the United Kingdom, the Supreme Court noted as follows:
“No convincing evidence was adduced within the proceedings to prove that the return of a child to the country of its permanent residence, communication with relatives, studying culture and language of the country of origin will expose him to serious risk of physical or psychological harm.
Therefore, the findings of the courts of lower instances as to existence of real and serious risk that the child will be placed in an intolerable situation by the plaintiff in the country of origin are based on assumptions”.
B. Relevant international law
The Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980
Article 13
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”
COMPLAINTS
The applicants complain under Article 8 of the Convention of an infringement of their right to respect for their family life on account of the decision by the Supreme Court of Ukraine of 29 August 2018 to order the return of the second applicant to the United Kingdom. In particular, they argue that the Supreme Court of Ukraine failed to take due account of, among other authorities, requirements of Article 13 of the Hague Convention and relevant arguments adduced by the first applicant within the above proceedings.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention?
In particular, did the Supreme Court of Ukraine sufficiently take into account the first applicant’s objection that the second applicant’s return to United Kingdom would fall within the scope of Article 13 of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and did it provide sufficient reasoning in that regard (see X v. Latvia [GC], no. 27853/09, §§ 106-108, ECHR 2013)?
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