CASE OF McILWRATH v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
6. The applicant was born in 1962 and lives in Sesto Fiorentino, Italy. 7. In 1997 in New York the applicant married M.G., who held joint American and Russian nationality. On 3 October 1997 M.G. gave birth to their son. 8. In 1998 the family moved to Italy, where three more children were born: a son on 7 February 2000, a daughter on 22 July 2002 and a son on 26 February 2006. All four children hold joint American and Russian nationality. 9. In September 2007 the applicant and M.G. separated. 10. On 18 June 2009 the applicant applied for a divorce. 11. While the divorce proceedings were ongoing, on 27 August 2011 M.G. took the children and left Italy for Russia. 12. Since the removal of the children the applicant has travelled to Russia on over fifty occasions, trying to bring them back to Italy and maintain contact with them, however, M. G. has prevented him from doing so. 13. The case file material indicates that the applicant saw the children on several occasions at their school between 15 October and 26 October 2012 when he taught English there on a voluntary basis. 14. He also saw the children in the short period which followed Dzerzhinskiy District Court’s decisions to grant his application for a temporary contact arrangement pending a decision in the proceedings in Russia to determine the children’s place of residence (see paragraphs 47-48 below). 15. On 27 November 2012 the applicant went to the children’s school to meet his younger son. The boy did not want to see him, he was pushing the applicant away and yelling. After failed attempts to calm the boy down, the applicant picked him up against his will, held him in both hands and carried him to an office allocated by the school administration for the applicant’s meetings with the children. The boy started screaming, crying and fighting the applicant off. In the meantime, the applicant’s daughter had telephoned M.G., who came to the school shortly afterwards and took the children home. 16. M.G. sought the institution of criminal proceedings against the applicant for having allegedly inflicted bodily harm on the children in the course of the above incident. On several occasions the Juvenile Division of the St Petersburg Central District Office of the Ministry of Internal Affairs refused to institute criminal proceedings against the applicant, owing to the absence of the constituent elements of a crime in his actions. The most recent decision was on 10 June 2013. The regional prosecutor’s office found the above decision lawful. 17. Following the incident of 27 November 2012, on 4 December 2012 the temporary contact arrangement for the applicant and his children was cancelled (see paragraph 49 below). 18. While exercising his contact rights in accordance with a judgment of 13 May 2014 (see paragraph 57 below), on 24 August 2014 the applicant took his second-born son and left Russia for Italy. He never returned the child to the mother and has not seen his other children since. 19. Since 2014 the applicant’s eldest son has been living in Israel. The applicant’s daughter and youngest son continue to live with their mother in Russia. 20. On 19 December 2009 the Florence District Court held that, while the divorce proceedings were ongoing, the four children should be placed in the care of social services, the children should reside with their mother, and the applicant should pay her child maintenance. The court further determined a schedule for the applicant’s contact sessions with the children. 21. On 6 December 2010 the Florence District Court varied the arrangements relating to residence and who had care of the children. Relying on an expert report by a psychologist and psychoanalyst, Dr C., and noting M.G.’s continued lack of income, it ordered that, while the divorce proceedings were ongoing, the applicant should have sole care of the four children and the children should reside with him. It further ordered that the three younger children were to spend weekends with their mother in the following manner: from Friday after school to Sunday afternoon, and every other weekend from Friday after school to Sunday evening. The eldest son, who had been diagnosed with autism spectrum disorder, was to go to a day centre for children with special needs after school, and he was free to choose which parent he wanted to stay with at night. The court also ordered that during the approaching Christmas holidays the children were to spend a week with their father and the following week with their mother. 22. On 7 December 2010 the Florence District Court entrusted Dr C. with carrying out a monitoring exercise in relation to compliance with the above court order. This exercise, carried out in the period between January and May 2011, showed that compliance with the court order of 6 December 2010 was rather good. After certain difficulties initially, the three younger children adapted quite well to their new schedule and accepted their new rhythm of life, which was more regular and settled. Dr C.’s report further mentioned that the children continued to experience psychological discomfort, partly owing to the difficult family situation (acute tensions and conflict between the parents), partly owing to their age (two children were approaching adolescence), and partly owing to M.G.’s actions (her continuing to “use” the children as “instruments” in her dispute with the applicant). Despite the remaining difficulties in the relationship between the children and their parents, the arrangement of the children’s life at that stage was assessed by the expert as being the best possible from a psychological and material point of view. The main problems which came to light during the monitoring exercise were: the situation of the applicant’s eldest son, who was not receiving therapy for his condition; the behaviour of M.G., who was unpredictable and eccentric and motivated by a paranoid delusion that she was a victim of plotting and persecution by the court and state institutions in general, and who gave the impression that she was suffering mentally; and M.G.’s relationship with the children, in particular, her attempts to involve the children in judicial proceedings and seek “allies” in them against the father, who she represented as cruel, dangerous and violent, all of which was harming the psychological well-being of the children. In the expert’s opinion, in order to prevent further psychological trauma being inflicted on the children by the mother’s behaviour, it was necessary not only to put a distance between her and the children, but also to have recourse to psychotherapy and improve the quality of the children’s psychological environment at their father’s home. 23. On 29 June 2011 the Florence District Court found that M.G. had not respected the previous court orders. In particular, it found that the eldest son had been living with her during the previous months. As he had refused to see his father, she had been the only parent who had had effective access to him. However, she had refused to bring him to the monitoring meetings with social services or ensure his attendance at the day centre for children with special needs, as ordered by the court. Moreover, she had sent the child to Venice in April without his father’s permission and without notifying social services. Given that M.G. had not respected the arrangements fixed by the court, it was necessary to modify them. Accordingly, the court confirmed the previous arrangements in respect of the younger children in relation to who had care of them, their place of residence and contact. It further confirmed that the applicant should have sole care of the eldest son, and that the eldest son should reside with him. The eldest son was no longer given the choice as to whether he wished to stay with his father or mother at night. The court further confirmed the order for the eldest son’s attendance at a day centre for children with special needs, and noted that if M.G. continued to not comply with that order, the matter would be reported to the Minors Court for the adoption of measures limiting parental authority. It also held that the children were not allowed to leave Italy without the consent of both parents. Lastly, it fixed the manner in which the children should spend the approaching summer holidays. In particular, it ordered that from 25 August to 1 September 2011 the four children were to stay with M.G. 24. On 27 August 2011 M.G. and the children left Italy for Russia. 25. On 18 September 2012 the Florence District Court pronounced the divorce of the applicant and M.G. with reference to section 170(1) of the New York Domestic Relations Law, which provides that an action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on the grounds of cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well-being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant. The Florence District Court further ordered that the applicant should pay child maintenance to M.G. As regards who should have care of the children and where they should live, the court noted that M.G. had taken the children to Russia in breach of a court order, and for over a year had thereby deprived the father of any possibility of seeing the children. M.G.’s having sole care of the children, as requested by her, was therefore excluded as an option. The court ordered that the applicant and M.G. should have joint care of the children and that the children should reside with their father. After the children’s return to Italy, M.G.’s contact rights would be fixed by social services so as to prevent the children being wrested once again from the environment in which they lived. Lastly, the court ordered that the applicant should bear all financial expenses in respect of the children, except medical expenses not covered by medical insurance, which should be divided between the parents. The judgment was “temporarily enforceable” (provvisoriamente esecutivo) pending a decision in appeal proceedings. 26. M.G. appealed against the judgment of 18 September 2012. 27. On 25 March 2014 the Florence Court of Appeal quashed the judgment of 18 September 2012 and dismissed the applicant’s petition for divorce under section 170 (1) of the New York Domestic Relations Law as not meeting the required conditions. The court further noted that it could not take measures in relation to the personal relationship between the applicant and M.G. or other issues concerning the children. 28. On 6 July 2015 the Florence Criminal Court convicted M.G. in absentia of abducting the children. She was given a three-year prison sentence with suspension of her parental authority. 29. On 19 November 2015 the Florence Minors Court dismissed an action by the applicant to strip M.G. of her parental authority in respect of the children. 30. The applicant applied to the St Petersburg City Court (“the City Court”) for recognition and enforcement of the Florence District Court’s decision of 6 December 2010. He relied on both the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the 1979 Bilateral Convention on Legal Assistance in Civil Matters between Italy and the Soviet Union (“the Bilateral Convention”). 31. On 19 January 2012 the City Court rejected the applicant’s application. It found that the decision of 6 December 2010 was an interim decision pending a final decision in divorce proceedings. It could be modified by the judge who had made it at any time, as indeed it had been modified on 29 June 2011, and could not be appealed against. That decision was therefore not a decision rendered in civil matters within the meaning of Article 409 of the Code of Civil Procedure, and accordingly was not enforceable in Russia. The court further held that enforcement of the decision of 6 December 2010 should be refused by reference to Article 412 of the Code of Civil Procedure and Article 13 of the Bilateral Convention. It found that the decision of 6 December 2010 was manifestly incompatible with Russian public order because it ordered that the father should have sole care of the children. Russian law did not provide for one parent to have sole care unless the other parent had been formally stripped of his or her parental authority. Given that M.G. had not been stripped of her parental authority, the decision to award sole care to the applicant was incompatible with Russian law. 32. The decision of 19 January 2012 mentioned that an appeal against it could be lodged with the Appellate Panel of the City Court within fifteen days. However, the applicant never availed himself of that remedy. 33. On 13 November 2012 the applicant applied to the City Court for enforcement of the Florence District Court’s judgment of 18 September 2012. He relied on the Bilateral Convention. 34. On 25 January 2013 the City Court rejected the applicant’s application. Referring to Article 412 of the Code of Civil Procedure and Article 13 of the Bilateral Convention, the City Court found that the judgment of 18 September 2012 was incompatible with the basic principles of Russian law and public order. The judgment read as follows: “Established case-law shows that public order in the Russian Federation is the basis of State and social organisation of the Russian Federation, [and] the violation of public order is the incompatibility with existing legal norms, social order and fundamental principles of law. Foreign court judgments violating the fundamental rights of a defendant, preventing him or her from defending his or her rights, as well as foreign court judgments whose enforcement may be in conflict with the national law of the State where they have to be enforced, are considered incompatible with public order. Reference to public order is possible when the application of a foreign law may lead to a result incompatible with Russian legal thinking. In the present case, the enforcement of a foreign court decision may be in conflict with Russian national law. In accordance with Article 163 of the Family Code of the Russian Federation, if parents and children do not have a joint place of residence their rights and obligations shall be determined in accordance with the law of the State where the children have citizenship. At a plaintiff’s request, child maintenance obligations and other relationships between parents and children may be determined in accordance with the law of the State where the children permanently reside. By the time the Florence District Court delivered its decision of 18 September 2012 the children had been permanently residing in Russia for over a year (since 27 August 2011), they are Russian nationals and have no Italian nationality. These circumstances are not disputed by the parties. [The proceedings concerning residence arrangements, child maintenance and parental authority in respect of the children are ongoing before the Dzerzhinskiy District Court of St Petersburg.] Under these circumstances, examination of the dispute by the Florence court is incompatible with Russian law. Besides, the relationship between parents and children is an ongoing process, objectively it can and does change over time. As was noted above, by the time the Florence court delivered its judgment the children had been living in Russia for a long time. During this time their relationship with their parents and their perception of the possibility of living with their father could have changed, which should have been taken into consideration by the [Italian] court. However, the judgment [of 18 September 2012] indicates that the [Italian court] did not take these circumstances into consideration, thereby violating the children’s fundamental rights under Article 12 of the United Nations Convention on the Rights of the Child ... The court also takes into account that the enforcement of the Florence court judgment might be incompatible with Russian law. In particular, enforcement of the foreign court decision in the present case would involve the return of the children to Italy, [a country] of which they are not nationals, with them being handed over to [the applicant], who also does not hold Italian nationality ... At the same time, under Article 61 of the Constitution of the Russian Federation a national of the Russian Federation may not be expelled from the territory of the Russian Federation. The applicant’s argument to the effect that he did not intend to bring the children back to Italy immediately and that he first wished to restore his relationship with them cannot serve as grounds for granting [his] application [for recognition and enforcement of the judgment of 18 September 2012]. The court proceeds on the understanding that enforcement of the Florence court judgment would be impossible without the children’s return to Italy ...” 35. On 7 February 2013 the applicant lodged a private complaint. Referring to Article 15 of the Constitution and Article 6 of the Family Code, he submitted that international treaties took precedence over national law. Under Article 24 of the Bilateral Convention the Italian courts had jurisdiction over the case, because at the time when the proceedings had been instituted he, M.G. and the children had all been permanently residing in Italy. The fact that M.G. had then abducted the children and taken them to Russia had no bearing on the jurisdiction of the Italian courts to proceed with the case. Further, referring to decisions by the Supreme Court (see paragraphs 74-75 below), the applicant argued that the City Court had not indicated what basic principles of the economic, social and legal organisation of Russian society had been infringed by the judgment of 18 September 2012. Moreover, the Russian courts had no competence in relation to verifying whether that judgment was lawful and justified. The applicant also submitted that the Florence District Court had taken into account the children’s wishes, and proof of this had been produced before the City Court. The applicant further argued that the prohibition on deporting Russian nationals was irrelevant to the present case, because the children were not to be deported or extradited from Russia. They were to be handed over to their legal guardian and would enjoy freedom of movement, including the freedom to leave Russia. Lastly, the applicant complained under Article 8 of the Convention that the refusal to enforce the judgment of 18 September 2012 violated his right to respect for his family life. 36. On 12 March 2013 the Appellate Panel of the City Court held an appeal hearing. The parties had not been notified about the date of the appeal hearing and were therefore absent. On the same day the court upheld the decision of 25 January 2013, finding that it was lawful, well reasoned and justified. It found, in particular, that the judgment of 18 September 2012 by the Florence District Court was incompatible with Russian public order because it was in conflict with Russian family law provisions and unacceptable in relation to Russian legal thinking. 37. The applicant lodged a cassation appeal with the Presidium of the City Court, repeating the argument set out in his appeal submissions. 38. On 8 May 2013 a judge of the City Court refused to refer the case for consideration by the Presidium of that court, finding no significant violations of substantive or procedural law which could influence the outcome of the proceedings. The first-instance and appeal courts had correctly applied domestic law. 39. On 30 September 2013 a judge of the Supreme Court of Russia refused to refer the case for consideration by the Civil Chamber of that Court. 40. On 9 December 2013 the Deputy President of the Supreme Court of Russia informed the applicant that there were no grounds to disagree with the decision of 30 September 2013, refusing to refer the case for consideration by the Civil Chamber of the Supreme Court. 41. On 10 January 2012 M.G. lodged an application with the Dzerzhinskiy District Court of St Petersburg. Claiming domestic violence and a lack of care and financial support, and referring to the children’s wish to live with her, she asked for an order stripping the applicant of his parental authority in respect of the children and determining that the children should reside with her. She also asked for child maintenance. 42. The applicant lodged a counterclaim, asking for an order that the children should reside with him. He submitted that M.G. had unlawfully abducted the children despite the decisions by the Florence District Court that they should reside with him. Their residence with M.G. was detrimental to their psychological health. In particular, by falsely accusing him of domestic violence, M.G. had caused the children to fear their father. Moreover, she had prevented him and his relatives from seeing the children or supporting them financially. She had not taken proper care of the eldest son, who suffered from a mental disorder and needed specialist care. 43. On 12 April 2012 the Dzerzhinskiy District Court of St Petersburg declared M.G.’s claims inadmissible. It noted that proceedings concerning the children’s residence arrangements and child maintenance were ongoing before the Florence District Court. Given that the proceedings in Italy had been initiated before the present proceedings, it was the Italian courts which had jurisdiction over the case, in accordance with Article 25 of the Bilateral Convention. Accordingly, the Russian courts had no competence to examine the case between the same parties, which was based on the same facts and had the same purpose. As regards the claim to strip the applicant of his parental authority, that claim was not part of the proceedings before the Italian courts. However, given that the applicant was a national of the United States of America and permanently living in Italy, the Russian courts had no competence to examine the claims against him. M.G. should therefore submit her claims to the court with territorial jurisdiction over the applicant’s place of residence. 44. On 6 June 2012 the City Court quashed the decision of 12 April 2012 and remitted the case for fresh consideration before the Dzerzhinskiy District Court. It found that the present proceedings were not identical to the proceedings ongoing in Italy. In particular, the claim to strip the applicant of his parental authority had only been made in the present proceedings. M.G. was entitled to lodge her claim with a court with territorial jurisdiction over her place of residence. Given that she lived in the Dzerzhinskiy District of St Petersburg, the Dzerzhinskiy District Court had competence to examine the case. 45. On 11 September 2012, having questioned the applicant’s three older children aged 15, 13 and 10, who had all expressed their wish to live with their mother and refused to have any contact with their father, the Dzerzhinskiy District Court decided that, pending the resolution of the proceedings, the children should reside with their mother. 46. On the same date the applicant asked the court to determine a temporary contact arrangement for him and the children. 47. Following the applicant’s application, on 30 October 2012 the Dzerzhinskiy District Court decided that, pending the resolution of the proceedings, the applicant should be able to have contact with the children at the schools they attended, in the presence of and with the active involvement of a psychologist, for one hour a week with each child: on Wednesdays after classes from 3 p.m. to 4 p.m. with the elder son; on Fridays after classes from 3 p.m. to 4 p.m. with the second son; on Mondays after classes from 2 p.m. to 3 p.m. with the daughter; and on Tuesdays after classes from 1 p.m. to 2 p.m. with the younger son. 48. Following an application by the applicant, on 21 November 2012 the Dzerzhinskiy District Court modified the interim contact arrangement between him and the children. In particular, in addition to the previously established contact hours, the applicant was allowed to: take his second son for a walk on Saturdays from noon to 1 p.m.; pick up his daughter from extracurricular activities on Sundays at 1 p.m., have lunch with her afterwards and return her to the mother by 2.30 p.m.; and take his younger son to theatres, museums and for other extracurricular activities for children every other Saturday, for a maximum of four hours starting from 10 a.m. The applicant was also allowed to accompany the three older children to and from school if the children agreed. 49. However, on 4 December 2012 the Dzerzhinskiy District Court cancelled the above interim contact arrangement on the grounds that it was not in the best interests of the children. In taking that decision, the district court relied on a letter from the Children’s Psychiatry Centre for Recovery Treatment of 29 November 2012 to the effect that, in circumstances where there was bitter parental conflict, meetings between children and the parent from whom they were living apart were psychologically highly traumatic for the children. The court also took into consideration the fact that the school principal firmly objected to having the meetings between the applicant and the children take place on the school premises. Reference was made to the incident of 27 November 2012 (see paragraphs 15-16 above). 50. On 23 July 2013 the Dzerzhinskiy District Court rejected both M.G.’s and the applicant’s claims in full. It found no evidence of domestic violence in respect of M.G. or the children. It further found it established that, despite the applicant’s wish to take care of the children and support them financially, he was being prevented from doing so by M.G. There were therefore no reasons to strip him of his parental authority in respect of the children. As regards residence arrangements, the court noted that the Florence District Court had already examined similar claims and had ordered by its judgment of 18 September 2012 that the children were to live with the applicant. That judgment was final and enforceable and the procedure for its enforcement in Russia was established by the Bilateral Convention and Article 409 of the Code of Civil Procedure. All the arguments raised by the parties in the present proceedings had already been examined by the Florence District Court. The parties had not produced any new evidence which could warrant changing the residence arrangements determined by the Florence District Court. Moreover, the court had been hampered in its examination of the issue by M.G.’s refusal to have the children examined by court-appointed experts. In the absence of a psychological expert report it was impossible to ascertain effectively the children’s attachment to each of the parents, the parents’ moral character and other relevant qualities, and the relationships between the children and each of the parents. Lastly, the court rejected M.G.’s claim for child maintenance. The parties appealed. 51. On 19 November 2013 the City Court considered it necessary, among other things, to question the three older children who had reached the age of 10 about their attitude towards each of the parents and the prospect of their living with them, and to obtain the opinion of the youngest child with the involvement of a psychologist. The hearing of 19 November 2013 was adjourned until 10 December 2013. 52. On 6 December 2013 an inspection of the children’s living conditions with their mother was carried out, and there was also a discussion with the applicant’s youngest child. 53. On 10 December 2013 the City Court ordered that an expert examination should be carried out so as to determine which parent the children would be most comfortable living with from an emotional perspective, with regard to the individual psychological features of the children and the parents, the relationships between them and the existing circumstances. The examination was also to determine whether it would be possible for the children to live apart from each other with one of the parents, taking into account their psychological attachment to each other. The proceedings were adjourned pending the results of the expert examination. 54. On 14 January 2014 the City Court ordered that the forensic psychological examination should be carried out by the St Petersburg State Institution for the Social Assistance of Families and Children “The Regional Family Centre”. 55. On 19 March 2014 the report of the forensic psychological examination was drawn up. It was based on an examination of the applicant and an analysis of the case file material, since M.G. had refused to take part in the examination and had not let the children be examined either. The experts’ conclusion was that the applicant was polite, communicative, sincere, easy-going, in control of his emotions, sentimental, sensitive to emotional nuances, and that he wanted friendly harmonious relationships. He had broad interests. Rudeness, hostility and a dominating attitude were not part of his character. He could easily adapt to different environments. The experts did not have sufficient material to fully assess the individual psychological features of M.G. and the children. However, on the basis of an analysis of M.G.’s behaviour and the reports by the Italian specialists, and taking into account the ongoing conflict and the children’s being in a psychotraumatic situation for a very long time, the experts recommended that M.G. underwent a comprehensive psychological and psychiatric expert examination. The experts further noted that, owing to the mother’s behaviour, the children had a negative image of their father, which created a substantial risk for their normal mental development. In such a situation, determining the children’s place of residence in accordance with their wishes could contradict their true interests. 56. On 20 March 2014 the proceedings were resumed. The City Court considered it necessary that the applicant’s two older sons, aged 16 and 14, join the proceedings as third parties. 57. On 13 May 2014 the City Court quashed the decision of 23 July 2013. It took note of the fact that on 25 March 2014 the judgment of the Florence District Court of 18 September 2012 had been quashed on appeal. The City Court granted M.G.’s claims in part by ordering that the children were to live with her and that the applicant was to pay her child maintenance, and granted the applicant’s claims in part by determining his contact rights in respect of the children. In particular, the applicant was allowed to spend time with the children on the second and last weekend of the month from 10 a.m. on a Saturday to 8 p.m. on a Sunday, for at least four hours on the dates of the children’s birthdays, during half of the public and school holidays, and for at least thirty calendar days during the summer holidays. During public holidays and school holidays the applicant was allowed to travel with the children both in Russia and abroad. The remaining claims by the applicant and M.G. were dismissed. In taking that decision the City Court took into consideration that: the children had been living with their mother for a long time, and they had been cared for and raised by her during this time; while living in St Petersburg they had acquired a circle of friends and teachers; the material in the case file proved M.G.’s conscientious attitude towards her parental obligations; and the children, questioned by both the court and the childcare authority, had expressed their wish to live with their mother. 58. Between June and October 2011 a number of internet news sites published M.G.’s account of her relationship with the applicant, their divorce and their dispute over the children. In particular, the news sites reproduced M.G.’s accusations against the applicant, describing his alleged acts of violence against her and the children. 59. The applicant sued the news sites and M.G. for defamation. 60. On 13 August 2012 the Petrogradskiy District Court of St Petersburg allowed the applicant’s claims against one of the news sites. On 20 August 2012 the Dzerzhinskiy District Court of St Petersburg allowed his claims against M.G. On 30 May 2013 the Golovinskiy District Court of Moscow allowed his claims against another news site. All the district courts found that M.G. and the news sites had not proved the truth of their allegations against the applicant. They noted that the Italian authorities had conducted an inquiry into M.G.’s allegations against the applicant and had found no evidence of domestic violence. The St Petersburg police had also conducted an inquiry which had not revealed any evidence of violent acts by the applicant against M.G. or the children. No such evidence had been produced in the present proceedings either.