Communicated on 23 October 2017
THIRD SECTION
Application no. 36048/17
Edward Michael THOMPSON and Sarah Hannah THOMPSON
against Russia
lodged on 15 May 2017
STATEMENT OF FACTS
The applicants, Mr Edward Michael Thompson (“the first applicant”) and Ms Sarah Hannah Thompson (“the second applicant), who are father and daughter, are British nationals who were born in 1973 and 2013 respectively. The second applicant also holds Russian nationality. The applicants are represented before the Court by Mr A.Y. Zuyev and Ms O.A. Khazova, lawyers practising in St Petersburg and Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2007 the first applicant married a Russian national, Ms Yu.T., in St Petersburg.
In 2009 the couple moved to Seville, Spain.
On 15 July 2013 their daughter, the second applicant, was born. She is a British national by birth.
On 27 April 2016 Yu.T. telephoned the first applicant from Barcelona Airport to inform him that she was leaving for Russia with the second applicant and was not coming back.
On an unspecified date Yu.T. obtained Russian citizenship for the second applicant.
Not knowing where in Russia the second applicant was located, on 25 May 2016 the first applicant applied to the Ministry of Justice of Spain for assistance in securing her return.
On 21 July 2016 the first applicant applied to the Russian Ministry of Education and Science, through the Spanish Ministry of Justice, with a request to organise a search for the second applicant and return her to Spain, and to facilitate negotiations with Yu.T.
In July-August 2016 the first applicant went to Russia and made enquiries with the Ombudsman for Children in St Petersburg and local childcare authorities in order to establish his daughter’s whereabouts.
On 18 August 2016 the first applicant lodged an application with the Dzerzhinskiy District Court of St Petersburg (“the District Court”), seeking the second applicant’s return to Spain on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), to which both Russia and Spain are parties.
On 27 October 2016 the District Court found that although Spain had indeed been the second applicant’s habitual residence at the time of removal and that the first applicant had actually been exercising custody rights and had not consented to or subsequently accepted the removal, the return request had to be dismissed in view of Article 13 (b) of the Hague Convention, which provides that the judicial authority of the requested State is not bound to order the return of a child if such an action would place the child in an intolerable situation. The District Court noted in that connection that the second applicant was three years and three months old at the time of its examination of the return application, which was an age when a child was deeply attached to his or her mother, both physiologically and psychologically. It was clear from Yu.T.’s submissions that she was not considering returning to Spain, that she intended to divorce the first applicant and therefore could not stay at his flat, that she had no residence of her own in Spain and no income. The District Court further relied on Principle 6 of the United Nations 1959 Declaration of the Rights of the Child, which provided that a child of tender years should not, save in exceptional circumstances, be separated from his mother. In view of such factors, the District Court considered that the child’s return to Spain without Yu.T. would run contrary to her best interests and those of Yu.T. In such circumstances, taking into account the interests of the child, her young age and her need to be cared for by the mother, the District Court concluded that there were no grounds for granting the first applicant’s request for the return of the child to the place of her habitual residence.
On 21 December 2016 the St Petersburg City Court (“the City Court”) upheld the above judgment on appeal. It found that the second applicant’s retention in Russia by Yu.T. could not be considered unlawful under Article 3 of the Hague Convention in view of the fact that the second applicant had been living in St Petersburg since April 2016, that she had left Spain when she was two years and nine months old, when a child had both a psychological and physiological need for a mother, and that Yu.T. had no intention to return to Spain. She also planned to divorce the first applicant and to have the child’s place of residence determined as being with her. The child, who had lived in St Petersburg since April 2016, had also become well integrated into her social and family environment in Russia. Relying on Article 38 of the Constitution of the Russian Federation, Articles 63 § 1 and 65 § 1 of the Family Code of the Russian Federation, Principle 6 of the UN 1959 Declaration of the Rights of the Child and Article 3 § 2 of the United Nations 1989 Convention on the Rights of the Child, the City Court agreed with the first applicant that discrimination against fathers was unacceptable. It noted, however, that the best interests of the child were of the utmost importance in every case, and that it was on the basis of that principle that the District Court had taken its decision. Relying further on Articles 15 § 4, 17 §§ 1 and 18 of the Russian Constitution, the City Court held that the provisions of Principle 6 of the UN 1959 Declaration of the Rights of the Child were reasonable and justified and could therefore be applied to the dispute between the parties. Therefore, the exceptions to the immediate return of a child under Articles 13 (b) and 20 of the Hague Convention allowed for the conclusion that there were no grounds for granting the first applicant’s claims. The return of the child without the mother was unacceptable and would run contrary to the goal of securing the child’s best interests. The City Court further held that the first applicant’s argument that he had been deprived of the possibility to communicate with his daughter had not been confirmed as he had not been deprived of parental authority and Yu.T. had not prevented him from having contact with the child in Russia. The domestic authorities had taken all the necessary measures for providing the first applicant with the opportunity to have contact with his daughter and to take part in her upbringing.
On 6 February and 10 March 2017 cassation appeals by the first applicant were rejected by a judge of the City Court and a judge of the Supreme Court of the Russian Federation (“the Supreme Court”), respectively.
On 4 April 2017 the Deputy President of the Supreme Court found that there were no grounds to disagree with the decision of 10 March 2017, which had been taken by a single judge.
B. Relevant domestic and international law
1. International law
(a) 1980 Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Spain on 1 March 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:
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.
...”
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.
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.”
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.
...”
(b) 1959 Declaration of the Rights of the Child
Principle 6
“The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother.
...”
(c) 1989 Convention on the Rights of the Child
Article 3
“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
...”
2. Domestic law
(a) The Constitution of the Russian Federation
The relevant provisions of the Constitution read as follows:
Article 15
“4. The universally recognised norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international agreement shall apply.”
Article 17
“1. The rights and freedoms of human beings and citizens, in conformity with the universally recognised principles and norms of international law, are recognised and guaranteed by the Russian Federation and under the present Constitution ...”
Article 18
“1. Everyone shall be equal before the law and the courts of law.
2. The State shall guarantee equality of rights and freedoms regardless of sex, race, nationality, language, origin, property and official status, place of residence, religion, convictions, membership of public associations, or any other circumstance. Any restriction on the human rights of citizens on social, racial, national, linguistic or religious grounds is forbidden ...”
Article 38
“1. Maternity and childhood and the family shall be protected by the State.
2. The care of children and their upbringing shall be both the right and obligation of parents ...”
(b) Family Code of the Russian Federation
The Family Code provides that parents are entitled, and have an obligation, to raise and educate their children. Parents are obliged to take care of their children’s health and their physical, psychological and moral development. Parents have a right to take priority over any other person in raising and educating their children (Article 63 § 1).
The exercise of parental rights must not contravene their children’s interests. Providing for a child’s interests is the principal object of parental care. Parents who exercise parental rights to the detriment of the rights and interests of their children are answerable under procedures established by law (Article 65 § 1).
(c) Code of Civil Procedure of the Russian Federation
The procedure for the examination of requests for the return of children who have been 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 international treaties of the Russian Federation is governed by Chapter 22.2 of the Code.
The Code provides that a return application must be submitted to a court by a parent or other person considering that his or her custody or access rights have been violated, or by a prosecutor. The return application must be submitted to the Dzerzhinskiy District Court of St Petersburg if the child is within the territory of the North-Western Federal Circuit (Article 244.11).
The return request is examined by the court, with the mandatory participation of a prosecutor and the childcare authority, within forty-two days of receipt, including the time for the preparation of the hearing and drawing up the judgment (Article 244.15).
A judgment to return a child who has been unlawfully removed to or retained in Russia must contain the reasons for the need to return the child to the State of his or her habitual residence in accordance with the Russian Federation’s international treaties, or reasons for the refusal of the request for return in accordance with the Russian Federation’s international treaties (Article 244.16).
The judgment can be appealed against within ten days. An appeal is examined within one month of receipt by the appellate court (Article 244.17).
COMPLAINTS
The applicants complain that the refusal of the first applicant’s application for the return of the second applicant to Spain amounted to a violation of their right to respect for their family life under Article 8 of the Convention. They argue, in particular, that the Russian courts misinterpreted and misapplied the Hague Convention, that they substituted the interests of the child’s mother not to return to Spain for the best interests of the child and failed therefore to strike a fair balance between the interests at stake. The applicants further argued that Principle 6 of the Declaration of the Rights of the Child relied on by the Russian courts in their decisions no longer reflected the way relationships between parents and children were shaped in modern society and contradicted the European Convention, the Convention on the Rights of the Child and the Hague Convention.
The first applicant further complains under Article 14 of the Convention taken in conjunction with Article 5 of Protocol No. 7 to the Convention that the refusal of his application for the return of the second applicant to Spain amounted to discrimination on the grounds of gender and violated his right to equality between spouses in their relations with their child.
QUESTIONS TO THE PARTIES
1. Did the judgment of the Dzerzhinskiy District Court of St Petersburg of 27 October 2016 refusing the first applicant’s request for the second applicant’s return to Spain amount to an interference with the applicants’ right to respect for their 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 Dzerzhinskiy District 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 follows from the text itself, its Explanatory Report, and recognised common practice (see Carlson v. Switzerland, no. 49492/06, §73, 6 November 2008; Monory v. Romania and Hungary, no. 71099/01, § 81, 5 April 2005; İlker Ensar Uyanık v. Turkey, no. 60328/09, §§ 47-62, 3 May 2012; and M.R. and L.R. (dec.), no. 13420/12, §§ 38-50, 15 May 2012)?
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