FOURTH SECTION
\nDECISION<\/p>\n
Application no. 71797\/13
\nIvan Mykolayovych KHALANCHUK
\nagainst Ukraine<\/p>\n
The European Court of Human Rights (Fourth Section), sitting on
\n3 July 2018 as a Committee composed of:<\/p>\n
Faris Vehabovi\u0107, President,
\nCarlo Ranzoni,
\nP\u00e9ter Paczolay, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 30 October 2013,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Ivan Mykolayovych Khalanchuk, is a Ukrainian national who was born in 1975 and lives in Slavuta.<\/p>\n 2.\u00a0\u00a0The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, most recently Mr I. Lishchyna.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0In 1994 the applicant married L., with whom he had two daughters, V., born in 1995, and D., born in 2007.<\/p>\n 5.\u00a0\u00a0On 15 November 2010 the Rivne District Court dissolved the applicant\u2019s marriage, finding that it was contrary to the interests of the couple and those of their children. The court further noted that the children lived with L. and granted custody of the children to L., ordering the applicant to pay maintenance for their upbringing.<\/p>\n 6.\u00a0\u00a0On 3 January 2012 the applicant lodged a claim under Article 159 of the Family Code of 2002 with the Rivne District Court, stating that his former wife had hindered his contact with D., the younger daughter, and requesting that the court order specific arrangements for such contact. He sought authorisation to, inter alia: have contact with her on a fortnightly basis between 4 p.m. on Friday and 9 a.m. on Monday, with D. staying overnight at his home; have contact with her between 12 noon and 8 p.m. on his birthday and on that of his father and grandmother; have her spend half of her school holidays with him at his home; and travel abroad with her for leisure purposes without his former wife\u2019s permission.<\/p>\n 7.\u00a0\u00a0On 27 February 2012 the court started proceedings in respect of the applicant\u2019s claim. The court heard both parents in person and ordered the Childcare Service to give an opinion as regards possible arrangements for the applicant\u2019s contact with D.<\/p>\n 8.\u00a0\u00a0On 16 July 2013 the Childcare Service submitted its opinion, in which it considered that the applicant should be allowed to meet D. once a month between 12 noon and 5\u00a0p.m., with L.\u2019s agreement and in her presence. During the court hearing the representative of the childcare authority explained that D. was to attend primary school from September 2013 and would therefore need time to prepare for her lessons. As regards the applicant\u2019s behaviour, according to the information provided by the police, criminal cases had been opened against him and he had been convicted of a crime (for a violation of traffic safety regulations resulting in injuries or death) and an administrative offence (for malicious disobedience to a lawful order or demand by a police officer).<\/p>\n 9.\u00a0\u00a0On 17 July 2013 the Rivne District Court delivered a judgment obliging D.\u2019s mother not to prevent the applicant from meeting with D. and participating in her upbringing. The court ordered that: the applicant should be granted contact with D. once a month on Saturday or Sunday between noon and 5\u00a0p.m., with L.\u2019s agreement and in her presence; another contact session should be granted on the applicant\u2019s birthday between 2\u00a0p.m. and 6\u00a0p.m. at his place of residence; the applicant should be allowed to take D. on holiday for a period not exceeding one month, with D.\u2019s mother\u2019s agreement; and the holidays could be split into two parts. The court further ordered that the parents should respect moral principles and act in the best interests of the child. As regards the applicant travelling abroad with the child, the court considered that he could follow the available procedure for obtaining the other parent\u2019s permission, permission which had to be certified by a notary.<\/p>\n 10.\u00a0\u00a0In its reasoning, the court mentioned that the applicant met D. at her nursery quite often and took her for walks. The court stated that the monthly meetings with the child proposed by the Childcare Service were sufficient and were in the best interests of the child, given that D. would have to attend school and do homework and would therefore need more attention from her mother. In determining the scope of the applicant\u2019s contact rights, the court also took into account the applicant\u2019s personality, having regard in particular to the information provided by the police concerning criminal and administrative cases against the applicant.<\/p>\n 11.\u00a0\u00a0The applicant appealed, arguing that the first-instance court had failed to thoroughly examine the circumstances of the case and ensure fairness in the proceedings. In particular, he challenged the Childcare Service\u2019s opinion and argued that L. would not consent to his taking D. abroad. He also contended that it would be detrimental to his relationship with D. and to her mental well-being if he had to meet her in the presence of L., as the latter would cause conflicts and disputes during such meetings, as she had done in the past. The applicant further argued that the information provided by the police had not been precise, because it was important to specify that he had been amnestied for the crime he had been convicted of, and the administrative-offence case had been closed for lack of elements of an offence. Even though there were two other sets of criminal proceedings against him regarding intentional infliction of minor bodily injuries and a theft, those cases were pending and no decision on the merits had been taken.<\/p>\n 12.\u00a0\u00a0On 4 September 2013 the Rivne Court of Appeal rejected the applicant\u2019s appeal, finding that the arrangements approved by the first\u2011instance court for his contact with D. were in accordance with the law and in the best interests of the child, given her age and the personality of the applicant, including the information about the criminal and administrative proceedings against the applicant. In particular, the Court of Appeal stated that the applicant\u2019s former wife had objected to leaving the daughter with the applicant alone in view of the girl\u2019s minor age and the applicant\u2019s negative character. Having examined all the evidence, the Court of Appeal concluded that that the findings of the first-instance court were reasonable.<\/p>\n 13.\u00a0\u00a0The applicant lodged a cassation appeal, relying on the same arguments as those submitted before the court of appeal. On 1 October 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant\u2019s cassation appeal, finding that it contained no arguments demonstrating that the lower courts had violated procedural or substantive law.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 14.\u00a0\u00a0Under Article 51 of the Constitution and Article 5 of the Family Code, the family, childhood, motherhood and fatherhood all fall under the protection of the State. In particular, the State must promote and encourage motherhood and fatherhood and ensure that children are brought up in a family (paragraphs 2 and 3 of Article 5 of the Family Code). Where the State puts in place regulations concerning family matters, it must take into account the interests of the child to the greatest extent possible.<\/p>\n 15.\u00a0\u00a0Articles 151 and 163 of the Family Code provide that children who are minors should, as a priority, be \u201cbrought up personally\u201d by their parents and live with them. The rights of parents \u2013 including those living separately from the child \u2013 to bring up a child who is a minor and to communicate with him or her can only be restricted by law (Articles 153 and 157). A parent who has custody of the child must not hinder the other parent\u2019s communication with a child or his or her participation in the child\u2019s upbringing, provided this does not impair the child\u2019s normal development. A parent living separately from a child may seek the assistance of the Childcare Service or the courts to enforce his or her parental rights in cases where no agreement has been reached on that matter with the parent who has custody of the child, or where that parent hinders the exercise of the other parent\u2019s parental rights. When deciding on arrangements for a parent\u2019s contact with a child and his or her participation in the child\u2019s upbringing, the childcare authorities and the courts should take into account the parent\u2019s \u201cattitude towards his or her parental obligations\u201d; the child\u2019s affection towards any of the parents; the child\u2019s age and state of health; the parent\u2019s state of health and living conditions; and any \u201cother important circumstances\u201d. Where it is in the best interests of a child, the courts may require the presence of another person during a parent\u2019s meetings with the child (Articles 157-159).<\/p>\n 16.\u00a0\u00a0Similar provisions concerning the upbringing of children and contact with their parents are contained in sections 11, 12 and 15 of the Act on the Protection of Childhood of 26 April 2001.<\/p>\n