Ushakov vs Russia, Case # 15122/17

Communicated on 16 June 2017

THIRD SECTION

Application no. 15122/17

Vladimir Nikolayevich USHAKOV

against Russia

lodged on 4 February 2017

STATEMENT OF FACTS

The applicant, Mr Vladimir Nikolayevich Ushakov, is a Russian national who was born in 1977 and lives in Vantaa, Finland. He is represented before the Court by lawyer practising in St Petersburg.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant has been living and working in Finland since 1999 on the basis of a permanent residence permit.

In 2009 in Helsinki he married I.K., a Russian national who moved to Finland after their marriage. The couple settled in Vantaa and lived in a flat owned by the applicant.

On 24 December 2012 I.K. gave birth to their daughter, V.

In January 2013 I.K. suffered two strokes and was partially paralysed. She was hospitalised.

The applicant took parental leave to take care of V. I.K.’s parents (most often her father) often visited from Russia to help with V. while I.K. was undergoing medical treatment.

In April 2013 I.K. was discharged from hospital. She had not, however, fully recovered mobility in one hand and one leg.

Relations between the applicant and I.K. apparently deteriorated, and in June 2013 I.K. travelled to Russia, accompanied by her father, for further medical treatment and physical rehabilitation. V. remained with the applicant.

Since the applicant had to return to work, in July 2013 he took V. to his parents in Norway, where V. was taken care of by her paternal grandmother and aunt.

Following her return to Finland in August 2013, I.K. instituted proceedings with a view to having the child returned to Finland under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

In October 2013 the applicant brought V. back to Finland, and the proceedings for the return of the child were discontinued.

1. The proceedings in Finland

Meanwhile, in August 2013 I.K. initiated divorce proceedings, asking the court to grant her sole custody of V. and to determine V.’s place of residence as being with her.

Between November 2013 and March 2014 five interim decisions were issued by Vantaa District Court (“the District Court”) determining that, pending resolution of the proceedings, the applicant and I.K. should have joint custody of V. and that the latter should reside with the applicant.

On 14 November 2013 the District Court addressed the applicant’s concern that there was a risk of I.K.’s taking V. to Russia without his consent and ordered that V.’s passport should be handed in to the police.

On 23 December 2013 the District Court noted that there was no risk of the child’s being taken outside Finland as her passport had been handed in to the police.

On 11 April 2014 the District Court dissolved the marriage between the applicant and I.K.

On 23 December 2014 the District Court held that the applicant and I.K. should have joint custody of V. and that V. was to reside with the applicant. The court also established a detailed schedule setting out I.K.’s contact with V. up until 2019. The judgment was enforceable pending a decision in appeal proceedings.

I.K. appealed against the above judgment.

On 20 November 2015 the Helsinki Court of Appeal rejected I.K.’s appeal and upheld the judgment of 23 December 2014.

I.K. further appealed to the Supreme Court of Finland.

On 26 February 2016 the Supreme Court refused I.K. leave to appeal.

In the meantime, while the appeal proceedings were pending, on 5 February 2015 I.K. took V. to Russia without the applicant’s consent. She informed him by email that she did not intend to come back to Finland.

On 20 February 2015 the applicant lodged an application with the Finnish Ministry of Justice in order to have the child returned to Finland under the Hague Convention.

The Finnish Ministry of Justice sent an enquiry to the Ministry of Science and Education of the Russian Federation, which confirmed that the child was residing with I.K. in St Petersburg.

2. The proceedings in Russia

On 6 August 2015, after failed attempts to come to an agreement with I.K. as regards V.’s return to Finland, the applicant lodged an application with the Dzerzhinskiy District Court of St Petersburg seeking the child’s return to Finland on the basis of the Hague Convention.

I.K. objected to V.’s return to Finland. Relying on Article 13 § 1 (b) of the Hague Convention, I.K. claimed that V. was already settled in her new environment in Russia and that her return to Finland would be psychologically traumatic for her. She further indicated that V. spoke only Russian and that her being removed to Russia had been necessary so that she could be provided with the medical assistance she needed.

The childcare authority involved in the proceedings considered that the child’s interests would be best met if she continued to reside with her mother I.K.

The Ombudsman for Children in St Petersburg considered that V.’s removal from Finland to Russia had not been unlawful since the applicant and I.K. had joint custody of the child and the child’s removal to Russia did not diminish the applicant’s rights on the territory of the Russian Federation; besides, V. had a number of health conditions which could expose her to a risk of physical harm in the event of her return to Finland.

By a judgment of 2 December 2015, the Dzerzhinskiy District Court granted the applicant’s request and ordered that the child be returned to Finland immediately. The court found, and it was common ground between the parties, that V.’s place of habitual residence was Finland and that her removal from Finland had taken place without the applicant’s consent. It concluded, therefore, that the child’s removal had been in breach of the applicant’s custody rights. It furthermore found that there were no grounds for granting an exception to the child’s immediate return pursuant to Article 13 § 1 (b) of the Hague Convention. In particular, I.K. had not provided evidence to the effect that the medical assistance necessitated by V.’s health condition could not been provided to the latter in Finland.

However, on 3 February 2016 the St Petersburg City Court (“the City Court”) quashed the above judgment on appeal and rejected the applicant’s request for V.’s return to Finland. The City Court held that since the judgment of Vantaa District Court of 23 December 2014 ‒ which had determined V.’s residence as being with the applicant in Finland ‒ had not yet entered into force, I.K.’s actions in bringing V. to Russia had not been unlawful. The circumstances of the removal of the child, a national of the Russian Federation, to Russia, had not violated the applicant’s parental rights. The City Court noted that at the moment of the child’s removal, as well as the time of the examination of the appeal, she had not had a valid Finnish residence permit. The City Court furthermore took into account the following facts: that since February 2015 V. had been permanently resident in St Petersburg ‒ at the address where I.K. was registered ‒ where suitable conditions had been created for her life and development; that both parties had registered places of residence in Russia; that at the moment of her removal V. was aged two years and a month, of which she had spent several months (from July to October 2013) in Norway, where she had been taken by the applicant without I.K.’s consent; and finally that V. did not speak Finnish and since February 2015 had been attending various medical and child-rearing facilities in Russia. In view of the foregoing, the City Court came to the conclusion that Finland was not the State in which V. was habitually resident. Since February 2015 V. had integrated well into the Russian social and family environment and her retention in Russia had therefore not been unlawful within the meaning of Article 3 of the Hague Convention. V.’s attendance at a kindergarten in Finland for a short period of time between November 2014 and January 2015 had not constituted sufficient proof of integration into the social environment in Finland such that Finland could be considered as the child’s habitual place of residence. Lastly, the City Court noted the report of the Ombudsman for Children in St Petersburg which stated that both parents had parental authority in respect of V., that the applicant’s rights were not diminished on the territory of the Russian Federation, and that the removal of the child from her mother in Russia to her father in Finland for the purposes of permanent residence in Finland could, due to her numerous health conditions, cause her physical damage. The City Court further noted that medical documents contained in the case file confirmed that the child had a number of health conditions. The City Court concluded that this circumstance ‒ which under Article 13 § 1 (b) of the Hague Convention constituted an exception to immediate return ‒ also led to the conclusion that there were no grounds for granting the applicant’s request.

The applicant lodged an appeal on points of law with the Presidium of the City Court.

On 12 May 2016 a judge of the St Petersburg City Court refused to refer the case for consideration by the Presidium of that Court.

On 4 August 2016 a judge of the Supreme Court of Russia refused to refer the case for consideration by the Civil Chamber of that Court.

B. Relevant international and domestic law

1. The 1980 Hague Convention on the Civil Aspects of International Child Abduction

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Finland on 1 January 2013. For the relevant provisions of the Hague Convention see X v. Latvia [GC], no. 27853/09, § 34, ECHR 2013.

In the present context reference is made to the following provisions of the Hague Convention:

“The States signatory to the present Convention,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions –

...”

Article 1

“The objects of the present Convention are –

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

...”

Article 3

“The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

Article 12

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

...”

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 –

...

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.

...”

2. Code of Civil Procedure of the Russian Federation

The procedure for the examination of requests for the return of children unlawfully removed to, or retained in, the Russian Federation, and for securing protection for rights of access in respect of such children in accordance with the international treaty of the Russian Federation, is governed by Chapter 22.2 of the Code.

The Code provides that the return request is to be submitted to a court by a parent or other individual who believes that his/her custody or access rights have been violated, or by a prosecutor (Section 244.11).

The return request must be examined by the court, with the mandatory participation of a prosecutor and the childcare authority, within forty-two days of its receipt, including the time for the preparation of the hearing and the drawing up of the judgment (Section 244.15).

The judgment handed down in a case concerning the return of a child unlawfully removed to, or retained in, Russia must contain the reasons why the child must be returned to the State of his/her habitual residence ‒ in accordance with the international treaty of the Russian Federation ‒ or the reasons for refusing the request for return in accordance with the international treaty of the Russian Federation (Section 244.16).

An appeal may be lodged against the judgment within ten days. The appeal must be examined within one month of its receipt by the appeal court (Section 244.17).

COMPLAINTS

The applicant complains that the refusal of his application for the return of his daughter to Finland amounted to a violation of his right to respect for his family life under Article 8 of the Convention. He claims, in particular, that in interpreting and applying basic concepts of the Hague Convention, such as “the child’s habitual residence”, “wrongful removal of the child”, “rights of custody” and “exceptions to the child’s immediate return”, the St Petersburg City Court disregarded approaches developed in international legal practice on the application of the Hague Convention and came to conclusions which contradicted the letter and the spirit of the Hague Convention.

QUESTIONS TO THE PARTIES

1. Did the judgment of the St Petersburg City Court of 3 February 2016 refusing the applicant’s request for his daughter’s return to Finland amount to an interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference “in accordance with the law” and “necessary” within the meaning of Article 8 § 2 of the Convention?

2. Was the St Petersburg City Court’s interpretation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction consistent with the meaning of the Hague Convention, which ensues from the text itself, its Explanatory Report, and recognised common practice (see R.S. v. Poland, no. 63777/09, §§ 53-73, 21 July 2015; Carlson v. Switzerland, no. 49492/06, §73, 6 November 2008; and Monory v. Romania and Hungary, no. 71099/01, § 81, 5 April 2005)?