European Court of Human Rights
European Court of Human Rights (ECrtHR)
Guido Raimondi (President); Päivi Hirvelä, George Nicolaou, Ledi Bianku, Nona Tsotsoria, Paul Mahoney, Faris Vehabović (judges); Fatoş Aracı (Deputy Section Registrar)
21 July 2015
European Convention on Human Rights (ECHR)
ECrtHR - Violation of Article 8 ECHR, award of damages
Article 8 ECHR
Neulinger and Shuruk v. Switzerland (Application No 41615/07) [INCADAT Reference HC/E/1323]; X v. Latvia (Application No 27853/09) [INCADAT Reference HC/E/1234]; Maumousseau and Washington v. France (Application No 39388/05) [INCADAT Reference HC/E/942]; Lipkowsky and McCormack v. Germany (Application No 26755/10) [INCADAT Reference HC/E/1201]; Diamante and Pelliccioni v. San Marino (Application No 32250/08); Eberhard and M. v. Slovenia (Application Nos 8673/05 and 9733/05); S.I. v. Slovenia (Application No 45082/05); H. v. the United Kingdom (Application No 9580/81); Süß v. Germany (Application No 40324/98); Strömblad v. Sweden (Application No 3684/07) [INCADAT Reference HC/E/1151]; Karrer v. Romania (Application No 16965/10) [INCADAT Reference HC/E/1149]; Blaga v. Romania (Application No 54443/10) [INCADAT Reference HC/E/1274]; İlker Ensar Uyanık v. Turkey (Application No 60328/09) [INCADAT Reference HC/E/1169]; Monory v. Hungary & Romania (Application No 71099/01) [INCADAT Reference HC/E/802]; Iosub Caras v. Romania (Application No 7198/04) [INCADAT Reference HC/E/867]; M.A. v. Austria (Application No 4097/13) [INCADAT Reference HC/E/1336]; Adžić v. Croatia (Application No 22643/14) [INCADAT Reference HC/E/1337]
1 child wrongfully retained at age 6 – National of Ukraine – Unmarried parents – Father national of Georgia and Ukraine – Mother national of Ukraine – Child lived in Ukraine until July 2010 – Application for return filed with the Central Authority of Ukraine in October 2010 – Return refused before application to ECtHR on 28 December 2012 – Violation of Art. 8 ECHR – EUR 8,300 awarded in damages – The reasoning of the Georgian Supreme Court regarding Art. 13(1)(b) of the 1980 Child Abduction Hague Convention was insufficient and misconceived - The child's best interests in view of the specific circumstances of the case were not properly determined
Un enfant retenu illicitement à l’âge de six ans – Ressortissant ukrainien – Parents non mariés – Père ressortissant de Géorgie et d’Ukraine – Mère ressortissante ukrainienne – Enfant résident en Ukraine jusqu’en juillet 2010 – Demande de retour déposée auprès de l’Autorité centrale ukrainienne en octobre 2010 – Retour refusé avant le dépôt d’un recours auprès de la CrEDH le 28 décembre 2012 – Violation de l’art. 8 de la CEDH – 8 300 € de dommages et intérêts – Le raisonnement de la Cour suprême de Géorgie concernant l’art. 13(1)(b) de la Convention Enlèvement d’enfants de 1980 était insuffisant et infondé – L’intérêt supérieur de l’enfant n’a pas été examiné de manière appropriée au vu des circonstances de l’espèce
Niño retenido ilícitamente a la edad de seis años – Nacional de Ucrania – Padres no casados – Padre nacional de Georgia y Ucrania – Madre nacional de Ucrania – Niño con residencia en Ucrania hasta julio de 2010 – Solicitud de restitución presentada ante la Autoridad Central de Ucrania en octubre de 2010 – Restitución denegada antes de la presentación de un recurso ante el TEDH el 28 de diciembre de 2012 - Violación del art. 8 del CEDH - Indemnización de €8300 por daños y perjuicios – El razonamiento del Tribunal Supremo de Georgia en cuanto al art. 13(1)(b) del Convenio de La Haya de 1980 fue considerado insuficiente y carente de fundamento – El interés superior del niño no fue examinado de manera adecuada según las circunstancias del caso
The child, L, was born in Ukraine on 29 July 2004. The applicant mother was a Ukrainian national and the respondent father a dual Georgian-Ukrainian national.
In mid-2005 the father left Ukraine for Russia. The child, L, continued to live with his mother in Ukraine and attended a pre-school educational institution in Kharkiv. The father visited them twice in 2005 and 2006.
In September 2006 the couple had a daughter, T. On 22 July 2010, T, died in a tragic accident, falling from the window of an apartment. The child, L, witnessed the accident and was subsequently diagnosed with an adjustment disaorder.
On 30 July 2010 the applicant mother allowed the father to take their son to Georgia for the summer holidays. The mother signed a document authorising the father to travel the child to Georgia and Russia between 30 July 2010 and 28 February 2011. According to the mother, the child was expected to return to Kharkiv by the end of August in order to start primary school in September, at which he had been pre-enrolled.
On 13 August 2010, the applicant learned when talking on the telephone with her son that the latter would not be returning to Ukraine and would be staying in Georgia. The child was living with his uncle and grandfather while the father was living in Russia and only occasionally visiting his son in Georgia.
The mother made an application under the Hague Convention for the return of the child to Ukraine.
In May 2011, the Tbilisi City Court refused to order the return of the child, concluding that the return would expose him to a psychological risk on account of the separation it would entail from his father and the trauma he had suffered in the country as a result of the death of his sister. The mother’s argument that her son was suffering from an adjustment disorder and from a lack of contact with his parents was dismissed.
In March 2011, in parallel proceedings in Ukraine, a district court ordered that the child should be returned to Ukraine.
In August 2012, the Supreme Court of Georgia upheld the first instance refusal to return – also relying on the social workers’ and psychologist’s reports – concluded that L.’s interests would be better protected if he remained in Georgia on account of the risk of psychological harm if he were returned to Ukraine, which he had left primarily on account of the trauma he had suffered followed the death of his sister.
The mother brought the case before the ECtHR relying on Article 8.
The Court held that the decision-making process before the Georgian courts had amounted to a breach of the mother’s right to respect for her family life, in violation of Article 8.
The Court held that there had been no evidence amounting to the existence of a ‘grave risk’ if he were returned to Ukraine to support the refusal to return under Article 13(1)(b).
The reports from the psychologist and social workers stated that the boy had experienced psychological trauma. The Georgian courts had relied on these to show a risk if the child returned to Ukraine but omitted to consider the risks the boy faced if retained in Georgia.
Furthermore, there was no allegation that the mother posed a threat to the boy and the father lived in Russia, meaning the child was primarily being looked after by his paternal family who had no custody rights.
“The Court is of the opinion that such a situation - keeping the child, who had spent the first six years of his life in Ukraine with his mother, in Georgia in the absence of both his parents - per se raises questions as to its compatibility with the principle of the best interests of a child …. Indeed, the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life and is protected under Article 8 of the Convention”