CASE OF VILENCHIK v. UKRAINE
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani
5. The applicant was born in 1978 and lives in Minneapolis, Minnesota, USA. 6. On 24 July 2009 the applicant and S. (a Ukrainian national) were married in Minneapolis. 7. On 28 August 2009 their son, M., was born there. The family lived in Minneapolis. A US passport was issued in M.’s name. 8. On 10 May 2010 S. obtained permanent resident status in the USA. 9. In June 2011 the family arrived in Ukraine for a holiday and to visit S.’s relatives. 10. On 13 July 2011 the applicant returned alone to the USA. The child stayed with S. in Ukraine. 11. In May 2012 S.’s US permanent resident card expired. 12. In June 2012 the applicant instituted proceedings before the Minnesota 4th Judicial District Family Court (“the Minnesota District Court”), seeking dissolution of the marriage and sole custody of M. In the course of the proceedings S. agreed to the dissolution of marriage. She argued, however, that the Minnesota District Court did not have jurisdiction with regard to the issue of M.’s custody pursuant to the Minnesota Statutes §518D.201 because the child had been in Ukraine for a period of more than six consecutive months. 13. In July 2012 the applicant spent a holiday in Ukraine with S. and M. 14. On 14 August 2012 the applicant asked the Ministry of Justice of Ukraine to order the return of M. from Ukraine to the USA in accordance with the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention” – see paragraph 37 below). 15. On 24 September 2012 the Minnesota District Court dissolved the marriage between the applicant and S. The court reserved the issue of M.’s custody, finding that it did not have jurisdiction over that issue pursuant to Minnesota Statutes §518D.201. 16. On 19 March 2013 the Chernihiv Regional Department of the State Migration Service of Ukraine issued a certificate declaring M.’s citizenship of Ukraine pursuant to section 7 § 1 of the Citizenship Act 2001. 17. On 10 April 2013 the Chernihiv Regional Chief Department of Justice, acting in the applicant’s interests, lodged a claim with the Desnyansky District Court of Chernihiv (“the Desnyansky District Court”), asserting that M. had been wrongfully retained in Ukraine and must be returned to the USA in accordance with the Hague Convention. 18. The applicant submitted that he had expected S. and M. to return from Ukraine to the USA on 16 August 2011; however, S. changed her plans and decided to stay on with M. in Ukraine after that date. During the hearings the applicant stated that he was prepared to cover travel expenses for both the child and the mother if the latter were to be ordered to accompany the child to the USA. 19. S. objected and submitted that it was the applicant who had asked her to stay in Ukraine with the child beyond 16 August 2011. In that regard S. stated that on 9 August 2011 the applicant had sent her four parcels from Minneapolis containing all her and M.’s personal belongings, including toys and clothes. The applicant also sent her M.’s vaccination certificate for his admission to a child-care centre in Ukraine. In July 2012, despite the divorce action initiated by the applicant in the USA, S. agreed to spend a holiday with him and their son in Ukraine, trying to restore good relations. She further submitted that the applicant had arrived in Ukraine in 2013 and stayed for a considerable period of time but had not attempted to meet up with the child. S. therefore alleged that there was no factual child abduction or unlawful retention which would necessitate a return order under the Hague Convention. 20. On 19 June 2013 the Desnyansky District Court found that M. had arrived in Ukraine with both parents’ agreement, but that later the mother had retained the child in Ukraine without the father’s consent. The court found that such retention was wrongful within the meaning of the Hague Convention and that the child should be returned to the country of his habitual residence, the USA. No exceptions under the Hague Convention applied. Given the applicant’s verbal assurances, the court considered that there were no objective obstacles to the mother’s accompanying the child to the USA and resolving the custody dispute before the courts of that country. In the operative part of the decision, the court ordered that M. should be returned to the USA ‒ to the father’s home address in Minneapolis ‒ specifying that the child should be accompanied on the journey by both parents. 21. On 2 July 2013 the Desnyansky District Court issued an additional decision stating that if the child were not returned voluntarily, S. would be ordered to transfer the child to the applicant at his home address in Minneapolis. 22. S. appealed against those decisions, maintaining that there was no abduction or unlawful retention of the child and that, in any event, there were grounds to apply the exception provided by Article 13 (b) of the Hague Convention (see paragraph 37 below) as regarded the risk of psychological harm to the child and his being placed in an intolerable situation. 23. On 13 August 2013 the Municipal Centre of Social Services for Family, Children and Youth of Chernihiv issued a certificate stating their psychiatrist’s opinion that M. was “well settled in Ukraine and, having regard to the strong bond between the child and the mother and the need to avoid causing the child psychological trauma, it would be inappropriate to remove the child to the other place of residence”. 24. On 14 August 2013 the Chernihiv Regional Court of Appeal (“the Court of Appeal”) quashed the decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above) and dismissed the applicant’s claim as unsubstantiated. The court considered there was a grave risk that M.’s return to the USA would expose him to psychological harm or would otherwise place him in an intolerable situation, as provided in Article 13 (b) of the Hague Convention. In that regard the Court of Appeal stated that M. was completely settled in his new environment, as he had been living in Ukraine since June 2011. M. had always lived with the mother and there were close ties between them. There was no realistic possibility for the mother to accompany M. to the USA and stay near him in that country. In addition, the Court of Appeal noted that the applicant had not provided any information regarding his actual place of residence in the USA, his current living conditions, or his level of income. 25. On 20 November 2013 the Higher Specialised Court of Ukraine for Civil and Criminal Matters (“the Cassation Court”) quashed the decision of 14 August 2013 (see paragraph 24 above) and upheld the Desnyansky District Court’s decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above), noting that they were well substantiated and had been adopted in compliance with the requirements of the Hague Convention. It found the submissions concerning the risk of exposing M. to psychological harm unconvincing. 26. On 26 November 2013 the Desnyanskyy District Court issued a writ of execution in respect of its decisions of 19 June and 2 July 2013. On the same date S.’s lawyer contacted the USA Embassy in Kyiv and enquired about applying for a USA visa in the specific circumstances. 27. On 27 November 2013 the Desnyanskyy District Department of State Bailiffs Service instituted enforcement proceedings, resulting in the imposition of fines on S. for failure to comply with the return order. 28. In February 2014 S. submitted a request to the Supreme Court for review of the case on the grounds that the Hague Convention had been applied divergently in the cassation proceedings, resulting in inconsistent judicial practice. On 28 April 2014 the Cassation Court declared the request admissible and referred the case to the Supreme Court. 29. On 18 June 2014 the Supreme Court considered S.’s request for review of the Cassation Court’s decision of 20 November 2013 (see paragraph 25 above) on the grounds of divergent application of the law by the cassation courts. Having examined the domestic judicial practice, the Supreme Court found that Articles 3, 12 and 13 of the Hague Convention (see paragraph 37 below) had been applied divergently. It set out the principles which had to be followed when interpreting and applying those provisions. As regards the present case, the Supreme Court found that the domestic courts had failed to apply the provisions properly. In particular, there had been no clear stance on the question of whether or not the removal or retention of the child had been wrongful, and ‒ if that were the case ‒ at what moment it started to be wrongful, nor as to whether or not the father had consented to or subsequently acquiesced as regards the child’s retention, nor whether facts existed demonstrating that the child was settled in his current environment. The Supreme Court quashed the decision of 20 November 2013 and remitted the case to the Cassation Court for fresh consideration. 30. On 30 July 2014 the Cassation Court quashed the Court of Appeal’s decision of 14 August 2013 (see paragraph 24 above), on the grounds that the Court of Appeal had breached procedural rules and had failed to establish all the relevant facts. The case was remitted to the Court of Appeal. 31. On 5 September 2014 the Court of Appeal found that there was no dispute regarding removal of the child because the father had only complained about the wrongful retention of the child in Ukraine. The Court of Appeal then considered the applicant’s updated submissions, in which he no longer argued that the retention of the child had been wrongful as from 16 August 2011 but rather as from 20 June 2012, which was the date when he had first expressed his disagreement with the child’s retention in Ukraine. It was also established that in August 2011 the applicant had sent parcels to Ukraine containing the child’s belongings. 32. As regards the period commencing on 20 June 2012, the Court of Appeal considered that the applicant had continued to consent to the child’s retention in Ukraine as there was no express objection on that point before the request was made under the Hague Convention. The Court of Appeal found that on 20 June 2012 the applicant’s divorce claim was delivered to S.’s representative. In that claim the applicant also sought to establish sole custody of the child; however, that claim did not mean that the applicant disagreed with the child’s ongoing stay in Ukraine. Moreover, in July 2012, the applicant had spent a holiday with S. and M. in Ukraine and in August 2012, after his return to the USA, he had sent M.’s vaccination certificate in order to facilitate M.’s admission to a child-care centre in Ukraine. The Court of Appeal concluded that in these circumstances the applicant enjoyed custody rights in relation to M. and that he had failed to demonstrate that those rights had been violated. For those reasons the child’s retention in that period could not be considered wrongful within the meaning of the Hague Convention. 33. The Court of Appeal next stated that, even assuming that there had been a wrongful retention of the child, the return request could be rejected under the provisions of Articles 12, 13 and 20 of the Hague Convention (see paragraph 37 below). The Court of Appeal examined the evidence relating to the child’s place of residence in Ukraine, and the social and medical care provided to him in Ukraine, and found that M. was assured of all the conditions necessary for his proper development. Based on the evidence presented and having regard to the overall period during which the child had lived in Ukraine, the Court of Appeal found that M. was entirely settled in his current environment. It also considered that M.’s return to the USA without his mother – who no longer had legal basis for entering and living in the USA – would not be in the best interests of the child. The Court of Appeal therefore quashed the Desnyansky District Court’s decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above) and dismissed the applicant’s claim as unsubstantiated. 34. On 4 December 2014 the Cassation Court dismissed appeals on points of law brought by the applicant and the Ministry of Justice and upheld the decision of 5 September 2014 (see paragraphs 31–33 above).