Z AND OTHERS v. FINLAND

Published on 15 July 2024

SECOND SECTION

Application no. 42758/23
Z and Others against Finland
lodged on 15 December 2023
communicated on 25 June 2024

STATEMENT OF FACTS

THE FACTS

1.  The applicants, who are a father (the first applicant) and two children (the second and third applicants), are Russian nationals who were all born in Russia and currently live in Finland. They were represented before the Court by Mr H. Nevala, a lawyer practising in Kemi.

2.  The facts of the case, as submitted by the applicants, may be summarised as follows.

3.  The applicants lived in Russia. The first applicant and the children’s mother have been separated since the children were three and five years old. The children lived with the mother whereas the first applicant had regular contact with them, and they had occasionally stayed at his home.

4.  In September 2022 the first applicant took the children from Russia to Finland without their mother’s consent.

5.  After arriving in Finland, on 14 September 2022 the first applicant applied for asylum on his own behalf and on behalf of the children. His claim was based on his opposition to the current regime in Russia and the war in Ukraine, which meant that he risked political persecution in Russia.

6.  On 23 January 2023 the children’s mother instituted proceedings for their return in the Helsinki Court of Appeal under the Hague Convention on the Civil Aspects of International Child Abduction (hereafter “the Hague Convention”).

7.  The first applicant, relying on Article 13 § 1 (b) of the Hague Convention (see paragraph 23 below), opposed the mother’s request, arguing that there was a grave risk that the return of the children to Russia would expose them to psychological harm or place them in an intolerable situation. Specifically, he submitted that the children had been forced to attend a military school in Russia where they had been “brainwashed” by being taught how to use guns and by being exposed to war propaganda. Relying on Article 13 § 2 of the Hague Convention (see paragraph 23 below), he also argued that the children objected to being returned.

8.  By a decision of 8 March 2023, the Helsinki Court of Appeal dismissed the mother’s request. On the basis of the evidence provided by the parties, it held that there was a grave risk that, if returned to Russia, the children would continue to attend the same military school they had previously attended, which would expose them to psychological harm. It stated that the situation in which underage children handled weapons, even if they were not real weapons, dressed in a military manner and otherwise engaged in activities that could be seen as military, could not be considered appropriate for their development and well-being. Furthermore, based on interviews that child welfare officers had conducted with the children, the court also established that both children objected to being returned to Russia but that only the older child had reached an age and degree of maturity at which it was appropriate to take account of his views. However, the court did not consider that child’s views decisive. What was important was the grave risk that returning the children to Russia would expose them to psychological harm.

9.  The mother appealed against that decision to the Supreme Court. She argued that the Court of Appeal had wrongly assessed the evidence regarding the school in question and that it had placed too much weight on the evidence presented by the first applicant. Furthermore, she pointed out that at the hearing in the Court of Appeal she had acknowledged that the children’s opinion of the school had changed and that she had therefore expressed her readiness to provide them with a different type of education.

10.  In his reply, the applicant reiterated the arguments he had put forward in the Court of Appeal (see paragraph 7 above). In addition, he submitted:

“If returned, [the children] would hardly ever be able to see their father again. The mother and the children’s sister will be able to visit the children in Finland, unlike the father, who will not be able to go to Russia.”

11.  On 16 May 2023 the Supreme Court, with the assistance of child welfare officers and in the absence of the parents, interviewed the older child in order to hear his views on the matter and establish whether they were genuine. On 19 June 2023 an oral hearing was held which both parents attended.

12.  By a decision of 27 September 2023, the Supreme Court ordered the return of both children to Russia. The court held that there was no grave risk that if the children were returned they would be treated in a manner contrary to human dignity, exposed to physical or psychological harm or otherwise placed in an intolerable situation, whether because of the school they had attended or for any other reason. In particular, the Supreme Court noted that it had not even been alleged that the children’s basic needs would not be met if returned to live with their mother. Nor was it alleged that the children were at risk of being caught up in a war or war zone. It noted that the Russian school system, unlike the Finnish one, contained, at least in some schools, features of military training. It also noted that it was possible that upon their return the children would be treated negatively at school because they had gone to Finland with their father. However, those factors were not such as to reach the threshold of grave risk or to put the children in an intolerable situation. It furthermore observed that the mother had stated that the children would not continue the same type of education and that there was no reason to doubt her statement (see paragraph 9 above).

13.  The Supreme Court further found that the older child, who was twelve years old at the time, strongly and genuinely objected to being returned, and that he had attained an age and degree of maturity at which it was appropriate to take account of his views. The younger child, who was ten years old at the time, had also objected to being returned. However, on the basis of the interviews the child welfare officers had conducted with the children (see paragraph 8 above), the Supreme Court considered that he had not reached an age and degree of maturity at which it was appropriate to take account of his views.

14.  Furthermore, in making an overall assessment, the Supreme Court gave weight to the fact that the children had lived all their lives in Russia, where they had a sister and other relatives, and that they had not had any ties with Finland before their wrongful removal. The Supreme Court also considered it possible that the older child had not been able to assess the long‑term effects of his separation from his mother which might make contact between them more difficult. It observed that the evidence suggested that during the stay in Finland, the younger child had had more contact with his mother, which supported the conclusion that his return was in his best interests.

15.  The Supreme Court also held that the children had lived together all their lives and that it was in their best interests not to be separated. While it was true that returning the children to Russia would probably make it more difficult for them to maintain contact with their father, the court concluded that it was in the children’s best interests to be returned to Russia where they would continue to live with their mother, with whom they had lived prior to their wrongful removal (see paragraph 3 above).

16.  Having regard to the above considerations, the Supreme Court concluded that the children’s return to Russia would not disproportionately restrict the first applicant’s right to respect for his family life.

17.  Subsequently, the first applicant lodged a new request for the annulment of the Supreme Court’s decision (see paragraph 12 above), relying on an extraordinary remedy under domestic law permitting the re‑examination of a case resolved by final judgment or decision in the event of the emergence of relevant new facts or circumstances capable of calling into question the outcome of that judgment or decision. In this request, the applicant submitted that the mother would hand the children over to a religious sect.

18.  In her reply, the mother stated that the children would return home and that the first applicant’s allegations were not true.

19.  On 27 October 2023 the Supreme Court dismissed the extraordinary request for annulment. It stated that the threshold for such annulment of a final judgment or decision was high, and that the mere reliance on a new fact was not by itself sufficient to justify an annulment.

20.  By a decision of 12 December 2023, the Immigration Service granted asylum to all three applicants (see paragraph 5 above). Asylum was granted to the first applicant because there were grounds to believe that in Russia he would be persecuted for his political opinions. The children were granted asylum automatically as the minor children of a father who had been granted asylum. The relevant part of that decision reads as follows:

“In view of the explanations provided in your case and the general and up-to-date information on the situation in your home country, the Immigration Service considers that you have well-founded reasons to fear that you will be persecuted in your home country because of your political opinion within the meaning of section 87(1) of the Aliens Act.

...

As to your children, you have also invoked domestic violence committed by the mother and sister, military schooling, and the brainwashing [by a religious sect leader]. Since it has been held above that the conditions for asylum are met in your case and your children are granted asylum as the minors in your family, it is not necessary to assess these elements in this decision.”

21.  The first applicant then lodged a second extraordinary request seeking the annulment of the Supreme Court’s decision of 27 September 2023 (see paragraph 12 above) on the grounds of new facts. He argued, inter alia, that in the meantime (i) the children had been granted asylum, and (ii) their mother had accepted that the older child would stay in Finland, which meant that the children would be separated if the younger one were returned to Russia.

22.  By a decision of 18 January 2024, the Supreme Court dismissed the second extraordinary request for annulment. It stated first that the mother had denied that she had accepted that the older child would stay in Finland. Furthermore, it held that the granting of asylum to the children did not in itself exempt the State from its obligations under the Hague Convention and that the asylum decision in the applicants’ case was not a new fact which would have led to a different outcome of the proceedings for the return of the children, because the children’s asylum status had been derived from that of their father, and not based on a risk of harm to the children themselves were they to return to Russia (see paragraph 20 above).

RELEVANT LEGAL FRAMEWORK

23.  The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction, which entered into force in respect of Finland on 1 August 1994 and in respect of Russia on 1 October 2011, reads as follows:

“The States signatory to the present Convention,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,

Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions –

...”

Article 1

“The objects of the present Convention are –

a)  to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b)  to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

...

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 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 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.”

24.  The relevant provisions of the Act on Child Custody and Right of Access (Laki lapsen huollosta ja tapaamisoikeudesta, Lag angående vårdnad om barn och umgängesrätt, Law no. 361/1983), reads as follows:

Chapter 5

Return of a child under the Hague Convention

Section 30

Return order

“A child present in Finland and wrongfully removed from the State where he or she is habitually resident, or wrongfully not returned to this State, shall be ordered to be returned at once, if the child immediately before the wrongful removal or retention was habitually resident in a State which is a Contracting State to the Convention on the Civil Aspects of International Child Abduction ...”

Section 31

Competent court

“A return order shall be issued, upon application, by the Helsinki Court of Appeal.”

Section 32

Wrongful removal and retention

“The removal or retention of a child is deemed wrongful if:

1) it is in breach of rights of custody attributed to a person, an institution or another body, either jointly or alone, under the law of the State where the child was habitually resident immediately before the removal or retention; and

2) 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 removal or retention of a child shall not be deemed wrongful, if the holder of the rights referred to in subparagraph 1 ... has consented to it or acquiesced in it either explicitly or implicitly.”

Section 33

Rights of custody

“In this chapter, rights of custody mean the right and obligation to take care of matters relating to the person of a child and, in particular, the right to determine the child’s place of residence.”

Section 34

Grounds for the refusal of a return order

“An application for the return of a child may be rejected if:

1) the application has been submitted after one year has elapsed from the date of the wrongful removal or retention of the child and the return of the child would be contrary to his or her best interests;

2) there is a grave risk that the return of the child would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation; or

3) the court finds that the child objects to being returned and has attained such an age and degree of maturity at which it is appropriate to take his or her views into account.

A child who has attained the age of 16 years cannot be ordered to be returned.

If the child’s habitual residence immediately before the wrongful removal or retention was in a Member State referred to in Article 2(3) of the Brussels IIa Regulation, the provisions of Article 11(4) of the Regulation are also applied to the rejection of an application for return under subparagraph 1 of paragraph 2.”

COMPLAINTS

25.  The applicants complain under Article 8 of the Convention that the Supreme Court’s order for the return of the children was in breach of their right to respect for their family life.

26.  They also complain under Article 3 of the Convention that the second and third applicants risk being exposed to ill-treatment if returned to Russia.

QUESTIONS TO THE PARTIES

1.  Was the Supreme Court’s decision ordering the return of children (the second and third applicants) to Russia pursuant to the Hague Convention on the Civil Aspects of International Child Abduction in breach of the applicants’ right to respect for their family life, guaranteed by Article 8 § 1 of the Convention? In particular, did the Supreme Court strike a fair balance between the competing interests involved, and did it give sufficient reasons as regards the risk that, given the first applicant’s asylum status, his ties with the second and third applicants might be severed if they were to be returned to Russia (see X v. Latvia [GC], no. 27853/09, §§ 92-108, ECHR 2013)?

2.  Would the second and third applicants face a risk of being subjected to treatment in breach of Article 3 of the Convention if the Supreme Court’s decision ordering their return to Russia were enforced?