Communicated on 14 October 2015
FIFTH SECTION
Application no. 21267/14
Andrew VILENCHIK
against Ukraine
lodged on 10 March 2014
STATEMENT OF FACTS
The applicant, Mr Andrew Vilenchik, is a USA national, who was born in 1978 and lives in Minneapolis, Minnesota, the USA. He is represented before the Court by Mr J. Kanetkar, a lawyer practising in Englewood Cliffs, the USA.
A. The circumstances of the case
The facts of the case may be summarised as follows.
On 24 July 2009 the applicant and S. (a Ukrainian national) were married in Minneapolis.
On 28 August 2009 their son, M., was born there. The family lived in Minneapolis. A US passport was issued in M.’s name.
On 10 May 2010 S. obtained permanent resident status in the USA.
In June 2011 the family arrived in Ukraine for a holiday and to visit S.’s relatives.
On 13 July 2011 the applicant returned alone to the USA.
According to the applicant, it was agreed that S. and M. would return to the USA on 16 August 2011; however, S. changed her plans and decided to stay on with M. in Ukraine after that date.
In May 2012 S.’s US permanent resident card expired.
In June 2012 the applicant instituted proceedings before the Minnesota 4th Judicial District Family Court (“the Minnesota District Court”), seeking dissolution of the marriage and sole custody of M. In the course of the proceedings S. agreed to the dissolution of marriage. She argued, however, that the Minnesota District Court did not have jurisdiction with regard to the issue of M.’s custody pursuant to the Minnesota Statutes §518D.201 because the child had been in Ukraine for a period of more than six consecutive months.
In July 2012 the applicant spent a holiday in Ukraine with S. and M.
On 14 August 2012 the applicant asked the Ministry of Justice of Ukraine to order the return of M. from Ukraine to the USA in accordance with the Hague Convention on the Civil Aspect of International Child Abduction (“the Hague Convention”).
On 24 September 2012 the Minnesota District Court dissolved the marriage between the applicant and S. The court reserved the issue of M.’s custody, finding that it did not have jurisdiction over that issue pursuant to Minnesota Statutes §518D.201.
On 19 March 2013 the Chernihiv Regional Department of the State Migration Service of Ukraine issued a certificate declaring M.’s citizenship of Ukraine pursuant to section 7 § 1 of the Citizenship Act 2001.
On 10 April 2013 the Chernihiv Regional Chief Department of Justice, acting in the applicant’s interests, lodged a claim with the Desnyansky District Court of Chernihiv (“the Desnyansky District Court”), asserting that M. had been wrongfully retained in Ukraine and must be returned to the US in accordance with the Hague Convention.
During the hearings the applicant stated that he was prepared to cover travel expenses for both the child and the mother if the latter were to be ordered to accompany the child to the US.
On 19 June 2013 the Desnyansky District Court found that M. had arrived in Ukraine with both parents’ agreement, but that later the mother had retained the child in Ukraine without the father’s consent. The court found that such retention was wrongful within the meaning of the Hague Convention and that the child must be returned to the country of his habitual residence. No exceptions under the Hague Convention applied. Given the applicant’s verbal assurances, the court considered that there were no objective obstacles to the mother’s accompanying the child to the USA and resolving the custody dispute in that jurisdiction. In the operative part of the decision, the court ordered that M. should be returned to the USA ‒ to the father’s home address in Minneapolis ‒ specifying that the child should be accompanied on the journey by both parents.
On 2 July 2013 the Desnyansky District Court issued an additional decision stating that if the child were not returned voluntarily, S. would be ordered to transfer the child to the applicant at his home address in Minneapolis.
S. appealed against the decisions. She denied that the applicant had given his consent for M. to stay in Ukraine only until 16 August 2011. She asserted instead that the applicant had insisted that she and M. should stay in Ukraine until 31 December 2011. In that regard she submitted that on 9 August 2011 the applicant had sent her four parcels from Minneapolis containing all her and M.’s personal belongings, including toys and clothes.
On 13 August 2013 the Municipal Centre of Social Services for Family, Children and Youth of Chernihiv issued a certificate stating their psychiatrist’s opinion that M. was “well settled in Ukraine and, having regard to the strong bond between the child and the mother and the need to avoid causing the child psychological trauma, it would be inappropriate to remove the child to the other place of residence”.
On 14 August 2013 the Chernihiv Regional Court of Appeal (“the Court of Appeal”) quashed the decisions of 19 June and 2 July 2013 and dismissed the claim as unsubstantiated. It found that M. was completely settled in his new environment, as he had been living in Ukraine since June 2011; furthermore, there was a grave risk that M.’s return to the USA would expose him to psychological harm or would otherwise place him in an intolerable situation.
In that regard the Court of Appeal noted that M. had always lived with the mother, that he was properly cared for by the mother and that there were close ties between them. However, given the divorce proceedings and the associated circumstances, it was not feasible for the mother to accompany M. to the US or stay with him at the address indicated by the first-instance court. In addition, there was no information concerning the living conditions in the dwelling at that address. The Court of Appeal then referred to S.’s statements, acknowledged by the applicant, that the dwelling at that address had been sold and no longer belonged to the applicant. The Court of Appeal furthermore noted that the applicant had not provided any information regarding his actual place of residence in the USA, his actual living conditions or his level of income.
On 20 November 2013 the Higher Specialised Court of Ukraine for Civil and Criminal Matters (“the Cassation Court”) quashed the decision of 14 August 2013 and upheld the Desnyansky District Court’s decisions of 19 June and 2 July 2013, noting that they were well substantiated and had been adopted in compliance with the requirements of the Hague Convention. It found the evidence concerning the risk of exposing M. to psychological harm unconvincing. In particular, as regards the certificate of 13 August 2013, it observed that it merely reflected the opinion of the psychiatrist, which could not be considered to constitute a finding by a specialist that M.’s return to the US would cause him psychological harm.
On 26 November 2013 the Desnyanskyy District Court issued a writ of execution in respect of its decisions of 19 June and 2 July 2013.
On 27 November 2013 the Desnyanskyy District Department of State Bailiffs Service instituted the enforcement proceedings. It ruled that S. should comply with the return order by 28 November 2013.
On 29 November 2013 the bailiff imposed a fine of 170 Ukrainian hryvnias (UAH) on S. for failure to comply with the return order.
On 3 December 2013 the bailiff imposed a further fine of UAH 340 on S. for failure to execute the return order.
On 27 January 2014 the applicant went to see M. in the children’s day care centre and took him to the airport in Kyiv with the intention of leaving the country. The next day the State border control officers at the airport refused to let the applicant cross the Ukrainian border with M. on the grounds that S. had not given her consent to M.’s leaving Ukraine, as required by the Rules on crossing the State border of Ukraine. According to the applicant, on that day he was assaulted by certain men near the airport, following which the child was handed over to S.
In the meantime, the bailiff asked the Desnyanskyy District Court to issue a temporary order for the placement of M. in the Chernihiv Centre for Social and Psychological Rehabilitation.
On 26 February 2014 the Desnyanskyy District Court refused the bailiff’s request, noting that the writ of execution did not state that the child was to be removed from the mother on the territory of Ukraine and that there had been no evidence that the mother had abused her rights and duties in respect of the child.
On 18 June 2014 the Supreme Court of Ukraine considered S.’s request for review of the Cassation Court’s decision of 20 November 2013 on the grounds of divergent application of law by the cassation courts. Having examined the domestic judicial practice, the Supreme Court found that Articles 3, 12 and 13 of the Hague Convention had been applied divergently. It also found that in the present case the domestic courts had failed to apply these provisions properly. In particular, there was no clear stance on the question of whether or not the removal or retention of the child had been wrongful, and ‒ if that were the case ‒ at what moment it started to be wrongful, nor as to whether or not the father had consented or subsequently acquiesced regarding the child’s retention, nor whether facts existed demonstrating that the child was settled in his current environment. The Supreme Court quashed the decision of 20 November 2013 and remitted the case to the Cassation Court for fresh consideration.
On 30 July 2014 the Cassation Court quashed the Court of Appeal’s decision of 14 August 2013 on the grounds that the facts relevant to the case had not been established, and remitted the case to the Court of Appeal.
On 5 September 2014 the Court of Appeal found that there was no dispute regarding removal of the child because the father had complained only about the wrongful retention of the child in Ukraine. The Court of Appeal then considered the applicant’s updated submissions, in which he no longer argued that the retention of the child had been wrongful as from 16 August 2011 but rather as from 20 June 2012, which was the date on which he first expressed disagreement with the child’s retention in Ukraine. The applicant also admitted that in August 2011 he had sent parcels to Ukraine containing the child’s belongings.
As regards the period of retention following 20 June 2012, the Court of Appeal stated that in July 2012 the applicant had spent holidays with S. and M. in Ukraine and that in August 2012, after his return to the US, he had sent M.’s vaccinations certificate in order to facilitate M.’s admission to the children’s day care centre in Ukraine. In these circumstances the Court of Appeal concluded that the child’s retention could not be considered wrongful within the meaning of the Hague Convention. It next examined the evidence relating to the place of the child’s residence in Ukraine, and the social and medical care provided to the child in Ukraine, and found that M. was assured of all the conditions necessary for his proper development. Based on the evidence presented and having regard to the overall period during which the child had lived in Ukraine, the Court of Appeal found that M. was entirely settled in his current environment. It also considered that M.’s return to the USA without his mother – who no longer had any legal basis for entering and living in the USA – would not be in the best interests of the child. The Court of Appeal therefore quashed the Desnyansky District Court’s decisions of 19 June and 2 July 2013 and dismissed the claim as unsubstantiated.
On 4 December 2014 the Cassation Court dismissed the applicant’s and Ministry of Justice’s appeals on points of law and upheld the decision of 5 September 2014.
B. Relevant international law
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
The relevant provisions of the Hague Convention 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 4
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
Article 5
“For the purposes of this Convention -
(a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
(b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.
...”
Article 11
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.”
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.
...”
Article 16
“After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.
...”
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.
...”
C. Relevant domestic law
1. The Law of Ukraine on Ukrainian citizenship of 18 January 2001 (“the Citizenship Act 2001”)
Section 7 § 1 of the Act provides that a person shall qualify for Ukrainian citizenship if at the time of his or her birth one or both parents had Ukrainian citizenship.
2. The Rules on crossing the State border of Ukraine, approved by the Resolution of the Cabinet of Ministers of Ukraine of 27 January 1995 No. 57
According to the Rules, Ukrainian citizens under the age of sixteen years may leave Ukraine either if accompanied by both parents (paragraph 3) or if accompanied by only one parent subject to presentation of the notarised consent of the other parent (paragraph 4). The notarised consent of the other parent is not required, however, if ‒ among other exceptions ‒ there is a court decision permitting the respective Ukrainian citizen under the age of sixteen years to leave Ukraine without the consent and accompaniment of the other parent (paragraph 4).
3. Domestic law on enforcement proceedings
The provisions of domestic law relevant in the context of the enforcement of court decisions ordering the return of a child may be found in the judgment in the case of Chabrowski v. Ukraine (no. 61680/10, §§ 82 and 83, 17 January 2013).
COMPLAINT
The applicant complains, without referring to any specific provision of the Convention, that Ukrainian authorities have failed to ensure the return of his son to the USA.
QUESTIONS TO THE PARTIES
Has there been a violation of the applicant’s right to respect for private and family life under Article 8 of the Convention on account of his allegation that the respondent State has failed to ensure the return of his son to the USA? Did the domestic authorities comply with the requirement of speediness inherent in the proceedings under the Hague Convention on the Civil Aspects of International Child Abduction?
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