European Court of Human Rights

 

 

FIFTH SECTION

CASE OF SATANOVSKA AND RODGERS v. UKRAINE

(Application no. 12354/19)

 

 

 

 

JUDGMENT

STRASBOURG

28 January 2021

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Satanovska and Rodgers v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Arnfinn Bårdsen, President,
          Ganna Yudkivska,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 12354/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian national, Ms Mariya Oleksandrivna Satanovska (“the first applicant”) and her son Alexander George Rodgers (“the second applicant”), on 27 February 2019;

the decision to give notice of the application to the Ukrainian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 17 December 2020,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The present case concerns allegations under Article 8 of the Convention that the Ukrainian authorities, in the absence of sufficient grounds, ordered the return of the second applicant to the United Kingdom in proceedings under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

THE FACTS

2.  The applicants were born in 1977 and 2011 respectively and live in Kyiv. They were represented by Mr O.V. Zarutskyy, a lawyer practising in Kyiv.

3.  The Government were represented by their Agent, Mr I. Lishchyna.

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

5.  In 2010 the first applicant married R., a British national. In 2013 they divorced.

6.  On 25 September 2011 their son, the second applicant, was born in the United Kingdom, where the family resided.

7.  On 11 April 2012 the applicants and R. went to Ukraine. On 14 April 2012 R. returned to the United Kingdom; the applicants were to return on 22 April 2012.

8.  As the applicants did not return on the date agreed, in July 2012 R. instituted proceedings under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”) for the return of the second applicant to the United Kingdom, arguing that his son had been wrongfully retained in Ukraine.

9.  In December 2012 the Kyiv City Department of Justice, acting on behalf of R., lodged a claim with the Pechersk District Court of Kyiv (“the District Court”) for the return of the second applicant to the United Kingdom.

10.  On 5 June 2013 the District Court dismissed the claim, considering that the father of the child had agreed to the child’s retention in Ukraine, and that the child would be exposed to a risk of physical or psychological harm in the event of his return to the United Kingdom. The court noted that the child’s mother was not in a position to travel to the United Kingdom, in view of her health issues. On 3 September 2013 the Kyiv City Court of Appeal quashed that decision after finding that no exception under the Hague Convention had been substantiated by convincing evidence. The appellate court therefore ordered the return of the second applicant to the United Kingdom. The first applicant appealed on points of law.

11.  On 23 October 2013 the Higher Specialised Court on Civil and Criminal Matters (“the Higher Specialised Court”) dismissed the first applicant’s appeal on points of law as unfounded. On 2 July 2014 the Supreme Court, having examined an application by the first applicant for review of the case, quashed the decision of 23 October 2013 and remitted the case to the Higher Specialised Court for a fresh hearing. On 10 September 2014 the Higher Specialised Court quashed the Kyiv City Court of Appeal’s decision of 3 September 2013, considering that the facts regarding possible exceptions under the Hague Convention had not been properly examined, notably the issue of whether there was a risk of the child being exposed to physical or psychological harm in the event of his return to the United Kingdom.

12.  On 3 December 2014 the Kyiv City Court of Appeal upheld the District Court’s decision of 5 June 2013 refusing the application for the child’s return, after finding that the father had agreed to the child’s retention in Ukraine, that there was a risk of physical or psychological harm to the child in the event of his return, and that the child had adapted to a new environment. On 1 April 2015, considering that the relevant facts had not been sufficiently examined, the Higher Specialised Court quashed the decisions of 5 June 2013 and 3 December 2014 and remitted the case to the first-instance court for a fresh hearing.

13.  On 27 May 2016 the District Court dismissed the claim for the return of the child to the United Kingdom; that decision was upheld by the Kyiv City Court of Appeal on 21 September 2016. R. did not appear in person at the hearings before those courts. The hearings were held in the presence of R.’s legal representative, the first applicant and her legal representative. The representative of the local childcare authority attended the hearing before the first-instance court. On the basis of documents submitted by the first applicant, the courts stated that her son had settled well into his new social environment and had fitted well into his mother’s family; the second applicant lived in the apartment belonging to his mother, went to an educational institution corresponding to his age, received appropriate medical treatment, and the material conditions of his environment were appropriate. The courts further found that there was no evidence that R. had actually exercised custody rights in respect of the child at the time when they had lived in the United Kingdom.

14.  The courts then referred to three reports on psychological examinations of the second applicant which had been prepared in 2013 and 2015 at the request of the first applicant. The first report of 12 February 2013 stated that the child was attached to his mother and that their relationship was the basis for the child’s further successful development. According to the second report of 30 December 2013, removing the child to the country of origin would go against his need for security; it would endanger his speech development, and separating him from his mother would result in profound psychological trauma with long-term consequences. The third report of 28 July 2015 stated that the second applicant lived in a stable environment and perceived his place of residence in Ukraine as a permanent and comfortable place for himself and his family; returning the child to the country of origin would expose him to a serious risk of psychological and physical harm because of the inevitable disruption of his close relationship with his mother, the necessity for him to adapt to a new environment, and the stress arising from the change in social and material conditions. The psychologist who had examined the child appeared before the District Court and gave oral evidence confirming the information contained in the reports. Having assessed that evidence, the courts found under Article 13 § 1 (b) of the Hague Convention that there was a grave risk that returning the second applicant to the United Kingdom would expose him to psychological harm.

15.  R. lodged an appeal on points of law, arguing that the courts had failed to decide the case within the limits of the Hague Convention and that the proceedings in question could not turn into a dispute over custody rights. He insisted that he had not agreed to the second applicant staying in Ukraine and retention of the child there was wrongful, and the courts had an obligation to order the child’s return to the United Kingdom.

16.  The first applicant lodged an objection to the appeal on points of law, contending that R. had not actually exercised custody rights in respect of the child, and that there were psychological reports showing that the child would be exposed to psychological and physical harm in the event of his return to the United Kingdom. Moreover, she argued that she could not travel to the United Kingdom, owing to health and financial issues and the fact that her UK entry visa had expired in November 2012.

17.  On 29 August 2018 the Supreme Court quashed the above decisions and ordered that the child should be returned to the United Kingdom. The hearing was held in the presence of R.’s legal representative, the first applicant and her lawyer as well as the representative of the local childcare authority. The Supreme Court held that the lower courts had examined circumstances which were not the subject-matter of the Hague Convention proceedings, in particular: the parents’ dwellings; the possibility of ensuring appropriate living conditions for the child; the child’s psychological attitude towards each parent; and the mother’s role in caring for and raising the child in Ukraine and providing him with material support. The Supreme Court then noted that R. had initiated the return proceedings within the one-year time-limit, and the child’s adaptation to his living environment in Ukraine could not therefore justify the decision to refuse the application for his return, as provided for by Article 12 § 2 of the Hague Convention.

18.  As regards the application of Article 13 § 1 (b) of the Hague Convention which concerns the grave risk of the child being exposed to physical or psychological harm in the event of his return, the Supreme Court overturned the lower courts’ findings in the following way:

“No convincing evidence was adduced within the proceedings to prove that the return of the child to the country of his permanent residence, the child’s communication with his relatives, or his studying in the culture and language of the country of origin would expose him to a risk of physical or psychological harm.

Accordingly, the findings of the lower courts as to the existence of a real and serious risk that the child would be placed in an intolerable situation by the claimant in the receiving country are based on assumptions”.

19.  The Supreme Court lastly found that there had been no grounds to conclude that R. had not actually exercised custody rights or that he had acquiesced in the retention of the child in Ukraine. Overall, the case presented no exception provided for by the Hague Convention, and the child had to be returned to the United Kingdom as requested by his father.

20.  On 27 February 2019 the applicants lodged their application with the Court and requested, as an interim measure under Rule 39 of the Rules of Court, that the enforcement of the Supreme Court’s decision of 29 August 2018 be suspended.

21.  On 27 March 2019, having received additional information from the parties, the Court decided to refuse the interim measure on the basis that it was premature, since there was no imminent risk of the second applicant returning to the United Kingdom in the absence of an application for enforcement by his father and a writ of execution.

22.  The Court has not been informed of any further developments as regards the enforcement of the return order.

RELEVANT LEGAL FRAMEWORK

23.  The relevant provisions of the Hague Convention (which entered into force in respect of Ukraine on 1 September 2006), state as follows:

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.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”

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 -

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(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.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

...”.

THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

24.  The applicants complained that the Supreme Court had wrongly ordered the return of the second applicant to the United Kingdom, in violation of their family rights under Article 8 of the Convention.

25.  Article 8 provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A.    Admissibility

26.  The Court notes that the Supreme Court’s decision of 29 August 2018 ordering the second applicant’s return to the United Kingdom is final and, in principle, enforceable; therefore, it is common ground that Article 8 is applicable to the present case and the applicants can claim to be victims of an alleged violation of that provision of the Convention (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 90, ECHR 2010).

27.  The Court further notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

1.    The parties’ submissions

28.  The applicants contended the Supreme Court had not examined the case in the light of the child’s best interests, and that it had failed to investigate the exceptions - including the existence of a grave risk to the child’s psychological integrity - allowing the domestic courts to refuse the application for the return of the child to the United Kingdom.

29.  The Government submitted that the domestic courts had complied with their duties in examining the application for the child’s return, and that the Supreme Court had provided sufficient reasons for the return order. The Government insisted that the risk of physical or psychological harm had not been substantiated by the first applicant, who moreover had been free to accompany the child to the United Kingdom. In their opinion, the findings of the Supreme Court were neither arbitrary nor manifestly unreasonable.

2.    The Court’s assessment

30.  The general principles regarding the relationship between the Convention and the Hague Convention, the scope of the Court’s examination of international child abduction applications, the best interests of the child and the procedural obligations of the States, are laid down in the Court’s judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 93-108, ECHR 2013), as well as in a number of other judgments concerning proceedings for the return of children under the Hague Convention (see Maumousseau and Washington v. France, no.  39388/05, § 68, 6 December 2007; Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000‑I; Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006; Shaw v. Hungary, no. 6457/09, § 70, 26 July 2011; and Adžić v. Croatia, no. 22643/14, §§ 93-95, 12 March 2015).

31.  In this regard, the Court reiterates that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in the context of Hague Convention proceedings: when assessing an application for a child’s return, the courts must not only consider arguable allegations of a “grave risk” for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly, is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it (see X. v. Latvia, cited above, § 107).

32.  In the present case, the first-instance court, having examined the circumstances of the case in a full trial, decided to refuse the application for the child’s return, in view of the exceptions provided for by the Hague Convention. In particular, relying on the three psychological reports and the oral evidence of the psychologist during the trial, the first-instance court considered that the return of the second applicant to the United Kingdom would expose him to psychological harm within the meaning of Article 13 § 1 (b) of the Hague Convention. Reviewing the case on appeal, the appellate court upheld the decision of the first-instance court. The findings of the lower courts were subsequently overturned by the Supreme Court, which came to the opposite conclusion that there had been no risk of psychological harm in the event of the child’s return to the United Kingdom.

33.  The principal issue in the present case is therefore whether the Supreme Court, in quashing the decisions of the lower courts and ordering the return of the child, complied with its procedural obligation under Article 8 of the Convention to give specific and detailed reasoning in the light of the exceptions set out by the Hague Convention. In this connection, the Court notes that it is the parent who opposes return who must, in the first place, adduce sufficient evidence in this regard. The first applicant fulfilled her obligation by submitting psychological reports which were relevant to the assessment of whether there was a grave risk that the return of the second applicant would expose him to physical or psychological harm (see paragraph 14 above). Those reports were examined by the first-instance court, which verified them by directly examining the psychologist during the trial. In this way, the first-instance court also provided an opportunity for the parties to cross-examine the psychologist, thereby ensuring the adversarial nature of the reports (compare X. v. Latvia, cited above, § 117). Accordingly, this evidence constituted an essential part of the case, and could not be tacitly rejected later as irrelevant or insignificant.

34.  Against this background, the Court observes that the Supreme Court issued a return order after a review of the case on points of law which was limited in its scope and based on the same file. In dismissing the objection under Article 13 § 1 (b) of the Hague Convention, the Supreme Court did not formally exclude the psychologist’s reports from the evidence in the case (see paragraph 18 above). This makes the present case distinct from X. v. Latvia, in which the courts expressly refused to treat a certificate relating to a psychological assessment as evidence (see X. v. Latvia, cited above, §§ 26 and 117).

35.  However, in its succinct reasoning, the Supreme Court did not address at all the question of whether the psychological reports and the oral evidence given by the psychologist were relevant and reliable, or give any reasons for not taking them into account. While national courts’ duties in such cases (see paragraph 30 above) cannot be seen as requiring a detailed answer to each and every point raised by a party to proceedings, in the present case, the Supreme Court failed to address key pieces of evidence which were relevant and explain the value it attached to them and the conclusions to be drawn. Similarly, no analysis was provided by the Supreme Court with regard to the first applicant’s contentions that she could not follow her son to the United Kingdom because of health, financial and entry visa issues (see paragraph 16 above, and compare X. v. Latvia, cited above, § 117), despite the fact that the issue of possible harm to the child in the event of his return was linked to the applicants being separated. In sum, in the Court’s view, the reasoning was so general and stereotyped that, in the circumstances of the instant case, it could not amount to an effective examination of the objection to the return application.

36.  In the light of the above considerations, the Court concludes that the applicants suffered a disproportionate interference with their right to respect for family life, in that the decision-making process under domestic law did not satisfy the procedural requirements inherent in Article 8 of the Convention, as the Supreme Court failed to carry out an effective examination of the first applicant’s objection based on Article 13 § 1 (b) of the Hague Convention.

37.  There has accordingly been a violation of Article 8 of the Convention.

II.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

38.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

39.  The applicants claimed 60,000 euros (EUR) in respect of non-pecuniary damage.

40.  The Government submitted that the claim was unsubstantiated.

41.  The Court considers that the applicants must have suffered anguish and distress on account of the violation found in the present case. Ruling on an equitable basis, the Court awards the applicants the sum of EUR 1,200 jointly in respect of non-pecuniary damage.

B.     Costs and expenses

42.  The applicants also claimed EUR 5,413.58 for the costs and expenses incurred before the domestic courts and the Court.

43.  The Government submitted that the claim was unfounded.

44.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, in respect of the proceedings before the Court, the Court considers it reasonable to award the sum of EUR 1,500 for legal fees and EUR 30 for postal expenses, plus any tax that may be chargeable to the applicants.

45.  Having regard to the applicants’ request, the amount awarded under this head in respect of legal fees should be paid directly into the bank account of the applicants’ lawyer, Mr O. Zarutskyy (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

C.    Default interest

46.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

 

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)   that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of legal fees incurred in the proceedings before the Court, this amount to be paid into the bank account of Mr. O. Zarutskyy;

(iii) EUR 30 (thirty euros) plus any tax that may be chargeable to the applicants, in respect of postal expenses incurred in the proceedings before the Court;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 28 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Martina Keller                                                                   Arnfinn Bårdsen
Deputy Registrar                                                                       President