FIFTH SECTION
DECISION
Application no. 19954/20
Lidiya SHAGALOVA and Timofey SHAGALOV
against Norway
The European Court of Human Rights (Fifth Section), sitting on 10 December 2020 as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Jovan Ilievski,
Arnfinn Bårdsen, judges,
and Martina Keller, Deputy Section Registrar
Having regard to the above application lodged on 7 May 2020,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant is Ms Lidiya Shagalova, a Ukrainian national who was born in 1981. She applied to the Court on behalf of herself and her son Timofey, the second applicant, who was born in 2009. At the time when they lodged the application with the Court, they resided in Ukraine. They were represented before the Court by Mr Y.L. Boychenko, a lawyer practising in Strasbourg.The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. In 2004-2005 the first applicant went to Norway to study. In 2007 she met A, and the two married the following year. On 20 December 2009 the first applicant gave birth to their son, the second applicant.
4. The family thereafter lived in Norway. The parents’ relationship, however, came to an end and in 2011 they received the official permit for separation. On 21 March 2011 A gave formal consent to the first applicant being allowed to travel abroad with the second applicant.
5. In 2013 the first applicant and A, in the course of custody proceedings, made an in-court settlement according to which the second applicant was to reside with the first applicant, while A was to have contact rights. It also followed from the settlement that the first applicant could take the second applicant abroad on holiday without first obtaining A’s consent.
6. On 8 January 2018 the first applicant and A divorced.
7. On 16 May 2018 A instituted proceedings against the first applicant concerning custody, parental authority and contact rights in respect of the second applicant. He requested an interim decision while awaiting the outcome of the proceedings.
8. On 26 August 2018 the Oslo City Court (tingrett) gave an interim decision according to which A was given custody of the second applicant and parental authority was transferred to A alone.
9. In its decision, the City Court observed that the first applicant, since the month of April or May 2017, had refused A contact with the second applicant and that she had been fined for this by a decision of 26 September 2017. It also observed that A and the second applicant’s schools had sent notifications of concern to the child welfare services. Moreover, it observed that the first applicant had been registered as entering Ukraine on 22 November 2017 and that A had reported her to the police for child abduction. On 7 March 2018 an international missing person report in respect of the second applicant had been issued (etterlyst) and on the following day, the first applicant had been charged with child abduction. An arrest warrant for her had been issued on 13 March 2018.
10. Moreover, the City Court took note that the first applicant had taken the second applicant out of the country, prevented A from having contact with him and prevented him from continuing his schooling. The first applicant had also made herself unavailable to the child welfare and schools services. In the City Court’s view it was in the second applicant’s best interests to return to his school and usual surroundings and that the first applicant, in the light of her reprehensible behaviour, be deprived of her share of parental authority.
11. The City Court held a hearing on 17 and 18 December 2018. The applicants did not attend. A attended and gave evidence. Eleven witnesses, inter alia, from the police, child welfare services and the second applicant’s school, also gave evidence.
12. In its judgment of 4 January 2019 the City Court first found that A’s writ of summons had been lawfully served on the first applicant. The case file had also been sent by registered post to the first applicant’s presumed address via the Norwegian Embassy in Kiev, but she had not acknowledged receipt. Noting, moreover, that the case had been extensively elucidated through witnesses and documentary evidence, the City Court concluded that it had sufficient information to render judgment.
13. As to the merits, the City Court deemed that the second applicant had initially had a good relationship with both his parents, who had both apparently respected the in-court settlement of 2013 (see paragraph 5 above) until 2016-2017. The first applicant had alleged that A was violent, but her allegations to that effect had no objective support in other evidence. Furthermore, she had alleged that the second applicant had shown strong reactions to contact with A, which the City Court also found unsupported by other evidence. On the contrary, representatives from the second applicant’s schools, as well as the child welfare services, had stated that the second applicant had repeatedly expressed a strong wish to meet his father and have more extensive contact with him.
14. Furthermore, representatives from the second applicant’s school had reported that he had been very happy to see his father when A had arrived there (stor gjensynsglede) and had not understood why the first applicant had kept him at home for allegedly being sick on the days when he had been scheduled to meet A.
15. In contrast, the City Court was concerned about the first applicant’s ability to care for the second applicant. It considered that her behaviour during the last year and a half before its judgment indicated that she put her own needs first. Reference was made to her having stopped the second applicant’s contact with A; she had also otherwise involved him in her conflict with A. Furthermore, reference was in particular made to an incident where the first applicant had equipped the second applicant with a sound monitoring device disguised as a memory stick in order to listen to the second applicant’s conversations with the child welfare services. The City Court also took into account that the first applicant had chosen to remove the second applicant to a country of which he did not know the language and to deprive him of contact with his father, family, friends and supporting services. In the City Court’s assessment there was no evidence to indicate that there had been any risk to the second applicant so that the first applicant’s removal of him could therefore be considered lawful.
16. In so far as the general aim that the second applicant should have the best possible contact with both his parents could at all be attended to in the instant case, that aim also suggested that A should be given custody over him, as giving the first applicant custody had not worked.
17. Based on an overall assessment, the City Court concluded that it would be best for the second applicant to live with his father. It also found that the first applicant, in particular in the light of the fact that she had abducted the second applicant, should not have legal contact rights in his respect. Moreover, it considered that A alone should have parental authority over the second applicant as the first applicant, until then, had managed her share of parental authority neither rightfully nor in the second applicant’s best interests. There would also be a risk of her abducting him again.
18. The first applicant appealed against the City Court’s judgment to the Borgarting High Court (lagmannsrett). Represented by counsel, she maintained, among other things, that the City Court’s judgment had not been lawfully served on her and that the City Court should have dismissed the case as it had not been the correct court.
19. In its decision of 18 June 2019 the Borgarting High Court found that the first applicant had lodged the appeal too late, but that the appeal should nonetheless not be declared inadmissible for that reason, in particular as it would be in the second applicant’s best interests that he and the first applicant give evidence in the case, which they had not done before the City Court. As to whether the City Court should have dismissed the case, the High Court noted that that question depended on the assessment of whether there had been a child abduction or whether A had consented to the first applicant taking the second applicant abroad, which were matters that should rather be examined in an oral hearing and in conjunction with the other matters in the case.
20. The High Court, whose bench was composed of three professional judges, held a hearing on 10 and 11 October 2019. The first applicant’s counsel attended the hearing in person, whereas the first applicant followed the hearing and gave evidence via Skype. A psychologist had been appointed by the court as an expert and had spoken with the second applicant via Skype. The expert, alongside seven witnesses, gave evidence during the hearing.
21. In its judgment of 13 November 2019 the High Court first examined whether the case was inadmissible either because the question of custody over the second applicant was litis pendent owing to the first applicant having instituted custody proceedings in Ukraine or because A had applied to the wrong court.
22. The High Court concluded in the negative on both points. In respect of the choice of court, it considered it decisive that the evidence had shown that the first applicant had unlawfully abducted the second applicant to Ukraine. According to Article 7 no. 1 (b) of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (see paragraph 34 below) A had therefore been right to institute proceedings before the Oslo City Court. On the question of litis pendens the High Court found that the second applicant had been resident in Norway when A had instituted the proceedings and it followed from the rules governing child abduction that Ukrainian courts would not thereafter be able to render any judgments that would be binding and enforceable (ha rettskraftvirkning) in Norway.
23. Proceeding to the custody issue, the High Court conceded to the reasons given by the City Court. It found that, while the first applicant had only given evidence before the High Court, her evidence had not given grounds for any different conclusions on the evidentiary matters of the case than those drawn by the City Court. It considered that the first applicant was capable of providing the second applicant with satisfactory material care, but that, on the basis of the evidence presented to it, it had to be concluded that there were serious deficiencies in her emotional care for him. She was incapable of cooperating with his father or the public services, she had changed the second applicant’s school, moved him to Ukraine and involved him in her conflict with A. During the hearing she had shown little capacity to reflect on how her choices affected the second applicant.
24. The first applicant had argued that she had refused contact between the second applicant and A and moved to Ukraine with the second applicant because she had reason to believe that there were serious deficiencies in A’s material and emotional care for the second applicant. Based on the evidence presented to it, the High Court did not find any grounds for her asserted fears. The first applicant had presented a friend of hers as a witness, as well as statements from Ukrainian psychologists, but it was unclear to the High Court on what they had based themselves and no decisive importance could be attached to them.
25. Returning the second applicant to A would entail anew a change in his environment, school, friends and leisure activities, and the court‑appointed expert had emphasised that this would very likely be a challenge to him. At the same time, the High Court considered it to be a paradox that maintaining the status quo would entail that the second applicant would continue to be deprived of contact with his father as well as the opportunity to form his own opinion of him and relationship to him. Moreover, the High Court considered that, while the first applicant should not be granted legal contact rights for the time being, giving custody of the second applicant to A would ensure that the second applicant, in the longer term, be given the best possible contact with both his parents.
26. In his conversation with the court-appointed psychologist the second applicant had only stated positive things about the first applicant and only negative things about A. He had stated that he wanted to live where he was, with the first applicant. In the court-appointed expert psychologist’s view, the second applicant had an unnuanced opinion about his father, a matter which had changed since the custody proceedings in 2012/2013 (see paragraph 5 above), in which the psychologist had also been involved. Based on an assessment of the complete evidentiary picture, the High Court concluded that, while the second applicant’s opinions as they were at the time should be taken into account, it would not be correct towards him to let them be decisive.
27. On the basis of an overall assessment, the High Court concluded that it would be in the second applicant’s best interests to live with A.
28. As to contact rights, the High Court conceded to the reasons provided by the City Court and found that the second applicant would need quiet in order to settle down to living with A. The conflict between his parents was considerable and he should be shielded from it. Moreover, there was a clear risk that the first applicant would again abduct him and she had not been willing to confirm before the High Court that she would respect a decision that was not in her favour.
29. As regards parental authority for the second applicant, the High Court, like the City Court, found that the first applicant had not used her share of that authority either lawfully or in the child’s best interests. Her behaviour strongly indicated that she had not followed up, and would not, on the duties included in parental authority. In addition, the High Court pointed to the considerable issues in cooperation between the parents and the risk of the second applicant again being abducted. In conclusion, it was in the second applicant’s best interests that A alone be given parental authority.
30. On 15 January 2020 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg) refused the first applicant leave to appeal against the High Court’s judgment.Relevant domestic and international law
31. The Children Act of 8 April 1981 (barneloven) contains provisions on decisions relating to parental authority, custody and contact rights in its sections 30, 36, 42 and 46. According to the first paragraph of section 48, decisions on parental authority, custody and contact, and procedure in such matters, shall first and foremost have regard for the best interests of the child. Section 82 reads as follows:
Section 82. When cases regarding parental responsibility, international relocation with the child, custody or access may be dealt with in Norway
“Cases regarding parental responsibility, international relocation with the child, custody or access may be dealt with by a Norwegian court if the child is habitually resident in Norway. ...
A case regarding an interim decision may be dealt with by a Norwegian court in all cases where the child is present in Norway.
The provisions of the first and second paragraphs shall not apply unless otherwise provided by a treaty with another state.”
32. Both Norway and Ukraine are parties to the 20 May 1980 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children. In connection with that Convention, the Act relating to the recognition and enforcement of foreign decisions concerning custody of children and so on, and on the return of children, of 7 June 1989 (barnebortføringsloven) includes the following provisions:
Section 6
“(1) A decision concerning the custody of a child or the right of access that is given in a State that has joined the European Convention shall apply in Norway. If the decision is enforceable in the State in which it was given (the State of origin), it may also be enforced in Norway.
(2) If, at the time of the removal of a child across an international border, there is no decision as mentioned in paragraph 1 capable of enforcement in the State of origin, any subsequent decision given in a convention State that declares the removal to be unlawful shall have the same effect as such decision as is mentioned in paragraph 1.”
Section 7
“Such decision as mentioned in section 6 shall not be recognised and enforced if: ...
(d) the child, at the time that proceedings were instituted before a court or the matter was taken up by an administrative body in the State of origin, was a national both of Norway and of the State of origin and was habitually resident in Norway.”
33. The first subsection of section 30-4 of the Dispute Act (tvisteloven) of 17 June 2005 sets out that judgments cannot be appealed against to the Supreme Court without leave, and that leave can only be granted if the appeal concerns issues that are of significance beyond the scope of the current case or if it is important for other reasons that the case be decided by the Supreme Court. Section 18-1 of the Dispute Act reads as follows:
Section 18-1. Actions that preclude the institution of a new action (litispendence)
“The court shall reject a new action brought between the same parties to a claim that is already the subject matter of a dispute in a pending case. This also applies to actions before foreign courts if the ruling of the foreign court will be final and enforceable in Norway pursuant to Section 19-16.”
34. Article 7 of the 19 October 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, ratified by both Norway and Ukraine, reads as follows:
Article 7
“(1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and
a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.
(2) 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.
(3) So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.”
COMPLAINT
35. The applicants complained under Article 8 in conjunction with Article 6 of the Convention about the custody proceedings in respect of the second applicant.
THE LAW
36. The applicants maintained that the custody proceedings had entailed a violation of Article 8 in conjunction with Article 6 of the Convention. The former provision reads 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.”
Article 6 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
37. The first applicant submitted on behalf of herself and the second applicant that the domestic courts had not had jurisdiction and had therefore not been “established by law”; the domestic courts had not examined the case sufficiently in depth; the child’s best interests had not been attended to; the domestic courts, without ordering independent expertise, had not given decisive importance to the child’s opinion; the domestic courts had failed to counterbalance factors against the risk that the first applicant would again abduct the second applicant; the Supreme Court had not given proper reasons for its decision.
38. The Court observes at the outset that, in her application lodged with the Court, the applicant did not provide any indication that she had formally relied on the Convention before the domestic authorities, apart from making a reference to Article 8 in her appeal to the Supreme Court, which would normally be too late to count as exhaustion of domestic remedies in the light of domestic procedural law (see, in particular, S.R. v. Norway (dec.), no. 43927/17, § 31, 21 April 2020). Furthermore, it observes that the second applicant, on behalf of whom the first applicant also applied to the Court, was not party to those proceedings, and even when those proceedings were pending, the first applicant had only shared parental authority. Nonetheless, the Court does not find it necessary to examine whether the applicant sufficiently relied on the Convention “in substance” for there to have been exhaustion of all domestic remedies under Article 35 or whether she had standing to lodge an application on behalf of the second applicant. In the instant case, it suffices for the Court to make the following observations.
39. The applicants lodged their complaint with reference to Articles 6 and 8 of the Convention, taken in conjunction.
40. In respect of Article 8 of the Convention the Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life. Domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 (see, for example, Kacper Nowakowski v. Poland, no. 32407/13, § 70, 10 January 2017). The measure at issue in the instant case clearly amounted to interference with the applicants’ right to respect for their family life within the meaning of Article 8 § 1. Such interference constitutes a violation of that provision unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. The Court also reiterates that there is a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see, for example, X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013).
41. With regard to Article 6 of the Convention, and in particular the phrase “established by law”, the Court reiterates that it has held that that phrase covers not only the legal basis for the very existence of a “tribunal”, but also compliance by the tribunal with the particular rules that govern it. In the case of Zand v. Austria (no. 7360/76, Commission’s report of 12 October 1978, Decisions and Reports (DR) 15, pp. 70 and 80), the Commission expressed the opinion that the term “a tribunal established by law” in Article 6 § 1 envisages “the whole organisational set-up of the courts, including ... the matters coming within the jurisdiction of a certain category of courts...” (see, for example, Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006).
42. Moreover, the Court reiterates that it is the master of the characterisation to be given in law to the facts of the case, and that it has previously held that while Article 8 of the Convention contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8. It considers that the complaint raised by the applicants under Article 6 of the Convention is closely linked to their complaint under Article 8 and that the provisions may be examined in conjunction (see, mutatis mutandis, for example Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, § 111, 1 December 2009).
43. Turning to the facts of the case, the Court observes that the custody dispute was first examined by the City Court in proceedings which, though the applicants did not participate, were extensive in so far as a large number of witnesses and pieces of documentary evidence were presented. The City Court gave a detailed judgment where it justified its conclusions to the effect that giving A custody and sole parental authority over the second applicant attended to the latter’s best interests and why the first applicant should not be given legal contact rights at the time (see paragraphs 12-17 above). Thereupon the case was thoroughly examined by the High Court in proceedings where, again, numerous witnesses and pieces of documentary evidence were presented, this time in a hearing where the applicant attended via Skype and was assisted by counsel, in the course of proceedings in which an expert psychologist was appointed and the views of the child – the second applicant – were obtained. The High Court gave a lengthy judgment in which it examined all of the applicants’ arguments and gave detailed reasons as to why it concluded that it had jurisdiction and why its judgment aligned with the second applicant’s best interests (see paragraphs 21-29 above).
44. In the Court’s assessment, nothing in the application indicated that the applicants had not been involved in the above decision‑making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. The Court also considers that the domestic courts carried out an in-depth examination of all relevant aspects of the case and notes that, contrary to the applicant’s assertions, an expert was appointed (see paragraph 20 above). As to the summary nature of the decision from the Supreme Court Appeals Leave Committee in which the first applicant was refused leave to appeal against the High Court’s judgment (see paragraph 30 above) the Court takes note that, according to domestic procedural law, the Supreme Court has limited jurisdiction and that leave to appeal to it may only be granted in specific circumstances (see paragraph 33 above).
45. In particular, the Court observes that on the basis of the evidence presented in the course of the above proceedings, the domestic authorities found it proved that the first applicant had unlawfully removed the second applicant. That finding was an essential reason as to why they concluded that the Oslo City Court had retained jurisdiction, notably as neither the second applicant’s living abroad nor the first applicant’s having instituted proceedings in Ukraine entailed that it was the wrong court or that the case was inadmissible for being litis pendent (see paragraphs 21-22 above). The Court has no basis for setting that evidentiary assessment aside and it follows that it has no basis, either, for considering that the domestic courts were not “established by law” in the sense of that term as employed in Article 6 of the Convention.
46. As to the merits of the domestic authorities’ decisions, the Court observes that they concluded that it would be in the second applicant’s best interests that custody and parental authority be given to his father, A, and that the first applicant not be given legal contact rights. In reaching those conclusions, the High Court took into account the expert’s findings, the evidence given at the hearing by the parties, and the opinions given by the second applicant himself. That being so, the High Court was in a better position to strike a fair balance between the conflicting interests in the case than the European Court of Human Rights is now, and nothing has been provided to show that it did not do so or that it was not guided by the second applicant’s best interests. The Court reiterates that it is not its task to substitute its own assessment of the facts and the evidence for that of the national courts; its task is to establish whether the evidence was presented in such a way as to guarantee a fair trial (see, for example, Murtazaliyeva v. Russia [GC], no. 36658/05, § 149, 18 December 2018).
47. On the basis of the above, the Court considers that the application does not disclose any appearance of the decision in issue not having been based on reasons that were not only relevant but also sufficient for the purposes of paragraph 2 of Article 8 of the Convention. Moreover, regard being had to the authorities’ margin of appreciation in the matter, there is no appearance of the interference complained of having been disproportionate to the legitimate aim pursued or the impugned proceedings not having been fair or not having afforded due respect to the applicants’ rights.
48. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 January 2021.
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Martina KellerStéphanie Mourou-Vikström
Deputy RegistrarPresident
Full & Egal Universal Law Academy