The failure of the state to secure the father’s reunification with his minor daughter, which her mother brought her to another country, violated the right to respect for family life.

JUDGMENT 

Vladimir Ushakov v. Russia 18.06.2019 (no. 15122/17)

see here 

SUMMARY

Right to reunite father with a minor daughter. State obligation to develop their ties.

The applicant, a Russian national, was resident in Finland. He had a daughter with his wife. At the time of their divorce, the former spouse settled with her daughter in Russia, although she was a resident of Finland, without the consent of the applicant and in breach of the court judgment recognized, the joint custody of their daughter . The domestic courts did not acknowledge any violation, with the result that the applicant was deprived of communication with his daughter.

The ECtHR ruled that there was a violation of the right to respect for the family because the refusal of the responsible state to protect this right, coupled with the absence of measures to reunite her daughter with her father, which is also a positive duty of the state, was not necessary in a democratic society.

PROVISION 

Article 8

PRINCIPAL FACTS 

The applicant, Vladimir Nikolayevich Ushakov, is a Russian national who was born in 1977 and lives
in Vantaa (Finland).

The case concerned proceedings over international child abduction.

While living in Finland, Mr Ushakov married I.K., a Russian national, and together they had a
daughter, V., in 2012. Soon after V.’s birth, I.K. suffered two strokes, leaving the applicant to take
care of V. The couple’s relationship deteriorated and in June 2013 I.K. went to Russia for treatment.
She returned to Finland in August 2013.

After divorce proceedings brought in August 2013, the District Court ruled that the couple should
have joint custody of V., who was to reside with the applicant. The Helsinki Court of Appeal and the
Supreme Court dismissed appeals by I.K. However, before the Supreme Court’s judgment I.K. took
the child to Russia in February 2015 without the applicant’s consent and told him that V. would not
be returning.

Mr Ushakov lodged a request for the return of his daughter under the Hague Convention on the Civil
Aspects of International Child Abduction. The St. Petersburg City Court ultimately found that V. was
not habitually resident in Finland, that her removal from Finland and retention in Russia were not
unlawful within the meaning of Article 3 of the Hague Convention and that V.’s medical conditions
fell within the exception to immediate return under Article 13 (b) of the Hague Convention.

Mr Ushakov lodged a cassation appeal but judges at both the City Court and the Supreme Court
refused to refer the above judgment for review under the cassation procedure.

The applicant complained under Article 8 (right to respect for family life) of the European
Convention on Human Rights about the Russian courts’ refusal of his application for the return of his
daughter to Finland.

THE DECISION OF THE COURT…

The Court notes that a parent and child’s mutual enjoyment of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, most recently, Edina Tóth v. Hungary, no. 51323/14, § 49, 30 January 2018). Consequently, the relationship between the applicant and his daughter falls within the sphere of family life under Article 8 of the Convention. That being so, the Court must determine whether there has been a failure to respect the applicant’s family life. “Respect” for family life implies an obligation for a State to act in a manner calculated to allow these ties to develop normally .

The Court observes that in February 2015, while the couple in the instant case was in the middle of divorce and custody proceedings in Finland, the child’s mother took the child, aged two years and one month at the material time, to Russia and never returned to Finland. The primary interference with the applicant’s right to respect for his family life may not therefore be attributed to an action or omission by the respondent State, but rather to the actions of a private individual.

That action nevertheless placed the respondent State under positive obligations to secure for the applicant his right to respect for his family life, which included taking measures under the Hague Convention with a view to ensuring his prompt reunification with his child .

The Court observes that by the final decision of 3 February 2016 the City Court refused the applicant’s request for V.’s return to Finland, which amounted to an interference with his right to respect for his family life.

The Court must therefore determine whether the interference in question was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, interpreted in the light of the relevant international instruments, and whether when striking a balance between the competing interests at stake, appropriate weight was given to the child’s best interests, within the margin of appreciation afforded to the State in such matters. In order to do so, the Court will have regard to the reasoning advanced by the City Court for its decision.

The Court observes that in the present case the City Court held that Finland had not been the State of V.’s habitual residence against the background of the following circumstances: the parties and the child were Russian nationals and had their registered residence in Russia

The Court notes, first of all, that the City Court’s refusal to acknowledge Finland as the State of V.’s habitual residence does not sit well with the facts of the present case. The Court notes, in particular, that the applicant’s daughter was born in December 2012 in Finland, where she had lived all her life prior to her removal to Russia in February 2015. By temporarily staying with her paternal grandmother in Norway between July and October 2013, she had not ceased to be habitually resident in Finland.

The Court further observes that the City Court’s conclusion to the effect that the child’s removal to and retention in Russia had not been wrongful in the absence of a final decision by the Finnish courts determining V.’s residence as being with the applicant in Finland contradicts the obvious meaning of Article 3 of the Hague Convention which transpires from the text, the Explanatory Report and the recognised common practice . The Court observes in this connection that even in the absence of a final decision by the Finnish courts determining the issues of custody and residence of the child, under Finnish law the applicant and I.K. had joint custody of the child, which both of them were actually exercising .  It further observes that the child’s removal to and retention in Russia by I.K. had taken place unbeknownst to the applicant and without his consent, which breached his rights protected by law and interfered with their normal exercise. Therefore, it appears that the provisions of the applicable law were in the present case interpreted and applied in such a way as to render meaningless the applicant’s lack of consent for V.’s departure to Russia and subsequent stay there for permanent residence .

The Court considers in this regard that whereas circumstances that could have justified applying the exception under Article 13 (b) of the Hague Convention to the general rule of the child’s prompt return may have existed but were not mentioned in the domestic decisions, it is not the Court’s task to take the place of the national authorities and to establish them.

In the light of the foregoing, the Court considers that the City Court failed to genuinely consider and give a sufficiently reasoned decision on whether V.’s state of health, or any other circumstances advanced by I.K., indeed constituted an exception to her immediate return in application of Article 13 (b) of the Hague Convention and to evaluate it in the light of Article 8 of the Convention.

Having regard to the circumstances of the case seen as a whole, the Court concludes that the interpretation and application of the provisions of the Hague Convention by the City Court failed to secure the guarantees of Article 8 of the Convention, that the interference with the applicant’s right to respect for his family life had not been “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention, and that the respondent State failed to comply with its positive obligations under Article 8 of the Convention to secure to the applicant the right to respect for his family life.

FOR THESE REASONS, THE COURT

  1. Declares, unanimously, the application admissible;

Holds, by six votes to one,

that the respondent State is to pay the applicant

  • (i)  EUR 16,250 (sixteen thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
  • (ii)  EUR 6,800 (six thousand eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses (echrcaselaw.com).

ECHRCaseLaw

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