Communicated on 22 October 2018
THIRD SECTION
Application no. 34176/18
E.D.
against Russia
lodged on 28 June 2018
STATEMENT OF FACTS
The applicant, Mr E.D., is a national of Israel and Russia, who was born in 1987 and lives in Haifa, Israel.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background of the case
On 1 October 2010 in Moscow the applicant married Ms M.K.
On 2 November 2011 their son S. was born.
On 4 June 2013 the applicant and M.K. moved from Moscow to Haifa.
On 29 July 2013 their second son, B.I., was born.
All members of the applicant’s family are nationals of Russia and Israel.
In January 2015 the applicant and M.K. separated.
Following the applicant’s request, in March 2015 a court in Israel ordered that the children’s travel outside Israel could only take place if authorised by it.
On 7 June 2015 the applicant and M.K. divorced. A temporary child rearing and contact arrangement provided that the children were to stay with the applicant every Tuesday until 7 p.m., every Wednesday until Thursday morning, every second weekend from Friday morning to Sunday morning, and half of all public holidays. The parties fully complied with this interim arrangement.
On several occasions M.K. sought and received from the court permission to travel outside Israel with the children. On each occasion M.K.’s parents, also residing in Israel, guaranteed the children’s return by an obligation to pay 30,000 US dollars for non-return of each child.
In July 2016 M.K. informed the applicant that she wished to travel to Moscow with their younger son in August 2016. The applicant did not object, since the older son remained with him in Israel. M.K signed a notarised declaration in which she undertook to travel with B.I. outside Israel from 2 August to 31 August 2016 and return the child to Israel on the latter date. She confirmed to have been aware of the fact that the non-return of the child on the mentioned date would amount to abduction contrary to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”).
However, M.K. did not bring B.I. back on the agreed date. She stayed in Russia.
2. The proceedings pursued by the applicant to obtain his younger son’s return to Israel
In September 2016 the applicant applied to the Russian Ministry of Education and Science, through the Israeli State Attorney’s Office, with a request to have B.I. returned to Israel, in accordance with the Hague Convention, to which both Russia and Israel are parties.
In March 2017 the applicant lodged an application with the Tverskoy District Court of Moscow (“the District Court”), seeking the child’s return to Israel on the basis of the 1980 Hague Convention.
M.K. objected. She argued that the child suffered from retarded speech development and emotional problems and that his return to Israel would expose him to a grave risk of psychological harm. M.K. supported her objections with reports by medical specialists confirming the child’s condition and showing its positive dynamics between August 2016 and March 2017 as a result of the treatment underway in Russia. The child was attending a centre of medical pedagogy since October 2016 and a Montessori kindergarten since December 2016, where he was monitored by a speech therapist. The latter considered that a change in the child’s language environment would affect the rhythm of his speech development and his overall psycho-emotional state. Pursuant to the conclusion of a psychologist (April 2017), any change in the child’s environment, separation from significant close people, first of all the mother, any rough change in the child’s routine, alteration of cultural or educational environment could affect the child’s emotional state. The psychologist therefore recommended to preserve the stability of the child’s usual environment and, in particular, considered that the child should continue living in the family of his mother, M.K. with whom the child had close emotional bonds.
In March 2017 the childcare authority assessed M.K.’s living conditions and found them suitable for raising a child.
In April 2017 the childcare authority considered that it was opportune to refuse the applicant’s claim for the child’s return to Israel.
On 24 April 2017 the District Court noted that the child had Russian nationality, that his removal from Israel and retention in Russia had not been wrongful, that the applicant agreed to the child’s departure to Russia, that M.K. had created all the necessary conditions for the child’s life and development in Russia, and that the child was undergoing treatment in Russia and, with reference to Article 13 of the 1980 Hague Convention, rejected the applicant’s claim for the child’s return to Israel.
On 12 July 2017 the Moscow City Court (“the City Court”) upheld the above judgment on appeal. The City Court agreed with the District Court’s conclusion that, in the absence of a judicial act limiting M.K.’s right to leave Israel with the child or determining the child’s residence as being with the applicant and requiring the latter’s consent for the child’s leaving the territory of Israel, there had been no grounds to believe that the child’s removal from Israel had been wrongful.
On 25 September 2017 and 28 February 2018 the applicant’s cassation appeals were rejected by a judge of the City Court and a judge of the Supreme Court of the Russian Federation (“the Supreme Court”), respectively.
3. The proceedings for determination of the children’s residence
On an unspecified date M.K. instituted proceedings seeking that the children’s residence be determined as being with her and that child maintenance be recovered from the applicant. The applicant brought a counter claim.
On 17 July 2017 the Odintsovo Town Court of the Moscow Region granted M.K.’s claims and rejected the applicant’s claims.
The case file contains no further documents relating to these proceedings.
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 Israel on 1 March 2012. 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:
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 –
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.
...”
Article 19
“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”
Article 20
“The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
...”
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 under Article 8 of the Convention that the refusal of his application for the return of his son to Israel amounted to a violation of his right to respect for his family life under Article 8 of the Convention.
He further complains under Article 13 of the Convention of the absence of an effective remedy in Russia against the alleged violation.
QUESTIONS TO THE PARTIES
1. Did the judgment of the Tverskoy District Court of Moscow of 24 April 2017, upheld on appeal by the Moscow City Court on 12 July 2017, refusing the applicant’s request for his son’s return to Israel 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 due consideration given to the following circumstances essential for the determination of the issue of the child’s return pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction:
(a) What was the country of the child’s habitual residence immediately before his removal?
(b) How was the child custody issue determined after the applicant’s and M.K’s divorce? Was there an agreement between the applicant and M.K., an administrative or a judicial decision in this regard? The parties are requested to submit a copy of the relevant document.
(c) Did the applicant actually exercise his custody rights at the time of the child’s removal? Would he still exercise those rights had the child not been retained in Russia?
(d) Has the child’s retention in Russia by his mother M.K. been wrongful?
(e) Have the proceedings for the return of the child been commenced within a period of less than one year from the date of the child’s retention?
(f) Has the applicant consented to or subsequently acquiesced in the child’s retention in Russia?
(g) Has there been a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation? Could the child’s speech development and behavioral difficulties qualify as a factor capable of constituting an exception to his immediate return in application of Article 13 of the Hague Convention? In what exactly consisted the treatment pursued by the child in Russia? Was there an equivalent therapy available to him in Israel?
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