FOURTH SECTION      CASE OF VILENCHIK v. UKRAINE (Application no. 21267/14)        JUDGMENT    STRASBOURG 3 October 2017 FINAL 03/01/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Vilenchik v. Ukraine,The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President, Ganna Yudkivska, Paulo Pinto de Albuquerque, Faris Vehabović, Carlo Ranzoni, Georges Ravarani, Marko Bošnjak, judges,and Marialena Tsirli, Section Registrar,Having deliberated in private on 5 September 2017,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 21267/14) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a national of the United States of America (“the USA”), Mr Andrew Vilenchik (“the applicant”), on 10 March 2014.2. The applicant was represented by Mr J. Kanetkar, a lawyer practising in Englewood Cliffs, USA. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna from the ministry of Justice.3. The applicant alleged that the Ukrainian authorities had failed to ensure the return of his son to the USA.4. On 14 October 2015 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1978 and lives in Minneapolis, Minnesota, USA.6. On 24 July 2009 the applicant and S. (a Ukrainian national) were married in Minneapolis.7. On 28 August 2009 their son, M., was born there. The family lived in Minneapolis. A US passport was issued in M.’s name.8. On 10 May 2010 S. obtained permanent resident status in the USA.9. In June 2011 the family arrived in Ukraine for a holiday and to visit S.’s relatives.10. On 13 July 2011 the applicant returned alone to the USA. The child stayed with S. in Ukraine.11. In May 2012 S.’s US permanent resident card expired.12. 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.13. In July 2012 the applicant spent a holiday in Ukraine with S. and M.14. 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 of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention” – see paragraph 37 below).15. 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.201.16. 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 2001.17. 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 USA in accordance with the Hague Convention.18. The applicant submitted that he had expected S. and M. to return from Ukraine to the USA on 16 August 2011; however, S. changed her plans and decided to stay on with M. in Ukraine after that date. 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 USA.19. S. objected and submitted that it was the applicant who had asked her to stay in Ukraine with the child beyond 16 August 2011. In that regard S. stated 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. The applicant also sent her M.’s vaccination certificate for his admission to a child-care centre in Ukraine. In July 2012, despite the divorce action initiated by the applicant in the USA, S. agreed to spend a holiday with him and their son in Ukraine, trying to restore good relations. She further submitted that the applicant had arrived in Ukraine in 2013 and stayed for a considerable period of time but had not attempted to meet up with the child. S. therefore alleged that there was no factual child abduction or unlawful retention which would necessitate a return order under the Hague Convention.20. 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 should be returned to the country of his habitual residence, the USA. 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 before the courts of that country. 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.21. 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.22. S. appealed against those decisions, maintaining that there was no abduction or unlawful retention of the child and that, in any event, there were grounds to apply the exception provided by Article 13 (b) of the Hague Convention (see paragraph 37 below) as regarded the risk of psychological harm to the child and his being placed in an intolerable situation.23. 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”.24. On 14 August 2013 the Chernihiv Regional Court of Appeal (“the Court of Appeal”) quashed the decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above) and dismissed the applicant’s claim as unsubstantiated. The court considered 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, as provided in Article 13 (b) of the Hague Convention. In that regard the Court of Appeal stated that M. was completely settled in his new environment, as he had been living in Ukraine since June 2011. M. had always lived with the mother and there were close ties between them. There was no realistic possibility for the mother to accompany M. to the USA and stay near him in that country. In addition, the Court of Appeal noted that the applicant had not provided any information regarding his actual place of residence in the USA, his current living conditions, or his level of income.25. 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 (see paragraph 24 above) and upheld the Desnyansky District Court’s decisions of 19 June and 2 July 2013 (see paragraphs 20 and 21 above), noting that they were well substantiated and had been adopted in compliance with the requirements of the Hague Convention. It found the submissions concerning the risk of exposing M. to psychological harm unconvincing.26. 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 the same date S.’s lawyer contacted the USA Embassy in Kyiv and enquired about applying for a USA visa in the specific circumstances.27. On 27 November 2013 the Desnyanskyy District Department of State Bailiffs Service instituted enforcement proceedings, resulting in the imposition of fines on S. for failure to comply with the return order.28. In February 2014 S. submitted a request to the Supreme Court for review of the case on the grounds that the Hague Convention had been applied divergently in the cassation proceedings, resulting in inconsistent judicial practice. On 28 April 2014 the Cassation Court declared the request admissible and referred the case to the Supreme Court.29. On 18 June 2014 the Supreme Court considered S.’s request for review of the Cassation Court’s decision of 20 November 2013 (see paragraph 25 above) on the grounds of divergent application of the 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 (see paragraph 37 below) had been applied divergently. It set out the principles which had to be followed when interpreting and applying those provisions. As regards the present case, the Supreme Court found that the domestic courts had failed to apply the provisions properly. In particular, there had been 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 to or subsequently acquiesced as regards 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.30. On 30 July 2014 the Cassation Court quashed the Court of Appeal’s decision of 14 August 2013 (see paragraph 24 above), on the grounds that the Court of Appeal had breached procedural rules and had failed to establish all the relevant facts. The case was remitted to the Court of Appeal.31. On 5 September 2014 the Court of Appeal found that there was no dispute regarding removal of the child because the father had only complained 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 when he had first expressed his disagreement with the child’s retention in Ukraine. It was also established that in August 2011 the applicant had sent parcels to Ukraine containing the child’s belongings.32. As regards the period commencing on 20 June 2012, the Court of Appeal considered that the applicant had continued to consent to the child’s retention in Ukraine as there was no express objection on that point before the request was made under the Hague Convention. The Court of Appeal found that on 20 June 2012 the applicant’s divorce claim was delivered to S.’s representative. In that claim the applicant also sought to establish sole custody of the child; however, that claim did not mean that the applicant disagreed with the child’s ongoing stay in Ukraine. Moreover, in July 2012, the applicant had spent a holiday with S. and M. in Ukraine and in August 2012, after his return to the USA, he had sent M.’s vaccination certificate in order to facilitate M.’s admission to a child-care centre in Ukraine. The Court of Appeal concluded that in these circumstances the applicant enjoyed custody rights in relation to M. and that he had failed to demonstrate that those rights had been violated. For those reasons the child’s retention in that period could not be considered wrongful within the meaning of the Hague Convention.33. The Court of Appeal next stated that, even assuming that there had been a wrongful retention of the child, the return request could be rejected under the provisions of Articles 12, 13 and 20 of the Hague Convention (see paragraph 37 below). The Court of Appeal examined the evidence relating to the child’s place of residence in Ukraine, and the social and medical care provided to him 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 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 (see paragraphs 20 and 21 above) and dismissed the applicant’s claim as unsubstantiated.34. On 4 December 2014 the Cassation Court dismissed appeals on points of law brought by the applicant and the Ministry of Justice and upheld the decision of 5 September 2014 (see paragraphs 31–33 above).II. RELEVANT DOMESTIC LAW35. Section 7 § 1 of the Law of Ukraine on Ukrainian citizenship of 18 January 2001 (“the Citizenship Act 2001”) 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.36. By Resolution no. 952 of 10 July 2006 the Cabinet of Ministers of Ukraine approved the regulations on execution of the Hague Convention on the territory of Ukraine. The regulations provide that the functions of the Ukrainian Central Authority are performed by the Ministry of Justice of Ukraine and by its territorial departments. The regulations lay down, in particular, the procedure for dealing with the applications for assistance in securing the return of children from Ukraine to foreign countries. According to the regulations, it is for the Ministry of Justice to institute court proceedings in order to ensure the return of the child; the Ministry of Justice should notify, if appropriate, the foreign Central Authority and/or the applicant about the necessity of providing additional information in support of such applications (paragraph 9).III. RELEVANT INTERNATIONAL LAW37. The relevant provisions of the Hague Convention (entered into force in respect of Ukraine on 1 September 2006), 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....”THE LAWI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION38. Without referring to any specific provision of the Convention, the applicant complained that the Ukrainian authorities had failed to ensure the return of his son to the USA.39. As a master of the characterisation to be given in law to the facts of the case (see, amongst many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I, and Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts)), the Court considers that the applicant’s complaint should be examined under Article 8 of the Convention, which 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.”A. Admissibility40. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions41. The applicant maintained that the domestic courts had failed to carry out proper examination of all the circumstances of the case and had eventually made the wrong decision in refusing to order the child’s return to the USA. He argued that the proceedings had not been prompt and expeditious.42. The Government admitted that the refusal to return of the child to the USA had constituted an interference with the applicant’s right under Article 8 of the Convention. However, the interference had been lawful, had pursued the legitimate aim of protecting the rights of the child, and had been necessary in the circumstances. As regards the length of proceedings, the Government pointed out that the applicant had contributed to it significantly as he had failed to provide the courts with the information relevant to his case and had changed his position on the facts during the course of the proceedings, which had complicated the overall examination of the case by the courts.2. The Court’s assessment43. The general principles regarding the relationship between the Convention and the Hague Convention, the scope of the Court’s examination of international child abduction applications, the best interests of the child and the procedural obligations of the States, are laid down in the Court’s Grand Chamber judgment in the case of X v. Latvia (see X v. Latvia [GC], no. 27853/09, §§ 93-108, 107 ECHR 2013) as well as in a number of other judgments concerning proceedings for the return of children under the Hague Convention (see Maumousseau and Washington v. France, no. 39388/05, § 68, 6 December 2007; Ignaccolo-Zenide v. Romania, no. 31679/96, § 102, ECHR 2000‑I; Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006; Shaw v. Hungary, no. 6457/09, § 70, 26 July 2011; and Adžić v. Croatia, no. 22643/14, §§ 93-95, 12 March 2015).44. In the present case the applicant, a US national living in the USA, complained that his former wife – and his son’s mother − had refused to return the child from Ukraine to the USA, the country in which their son had lived before his arrival in Ukraine, and that this had amounted to unjustified interference with his family life.45. The interference with the applicant’s family life stemmed from the actions of a private individual for which the State cannot be held liable; however, it placed the respondent State under a positive obligation to secure for the applicant his right to respect for his family life, which included, where appropriate, taking measures under the Hague Convention with a view to ensuring a prompt reunion with his child (see, amongst many other authorities, Adžić, cited above, § 92).46. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 99, ECHR 2012). In all decisions concerning children their best interests should be the paramount consideration (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010).47. As regards the Hague Convention proceedings, the Court has emphasised that Article 8 of the Convention requires that domestic courts carry out a careful analysis of the matter and make a ruling giving specific and sufficiently detailed reasons in the light of the circumstances of the case. This would enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it (see, mutatis mutandis, X v. Latvia, cited above, § 107).(a)  As to the analysis conducted by the domestic courts48. Having examined the applicant’s request for the child’s return under the Hague Convention, the Court of Appeal eventually refused it as unfounded. It stated that there was no dispute about the child being wrongfully “removed” from the USA to Ukraine as the father had consented to the child’s trip to Ukraine in June 2011. The dispute arose as regards the subsequent period of the child’s “retention” in Ukraine. In his final submissions before the domestic courts the applicant claimed that the retention began to be wrongful as of 20 June 2012 (see paragraph 31 above). With regard to that period the Court of Appeal found, in particular, that the applicant had visited the family in Ukraine, had spent holidays there and had also sent a vaccination certificate for the child’s admission to the child-care centre in Ukraine (see paragraph 32 above). On the facts, the Court of Appeal concluded that the child’s retention had not been wrongful within the meaning of the Hague Convention and that, in any event, given the length of the child’s stay in Ukraine, he was entirely settled in the new environment and his return to the USA – a country in which the child’s mother had no legal basis to live – would be contrary to his best interests (see paragraph 33 above). This decision was subsequently upheld by the Cassation Court (see paragraph 34 above).49. The Court observes that the domestic courts began their analysis by taking note of the applicant’s inconsistent submissions as to the date on which he had allegedly started to disagree with the child’s stay in Ukraine. They concluded that in fact the applicant had not objected to the child living in Ukraine until 14 August 2012, the date of his request to the Ukrainian authorities to ensure the child’s return to the USA. Following such a finding, the question arose as to whether or not the child had been “habitually resident” in the USA on the date of the applicant’s request and, consequently, whether there had been “wrongful retention” in the meaning of Article 3 of the Hague Convention.50. In that regard the domestic courts established that the child had lived in Ukraine for more than a year before the return request was submitted; during that time the applicant had sent parcels to Ukraine containing the child’s belongings, had visited the family in Ukraine for a holiday, and had sent the child’s vaccination certificate in order to facilitate his admission into a child-care centre in Ukraine. Accordingly, taking into account the long period of residence in Ukraine, the parental views on the child’s place of residence before the commencement of the Hague Convention proceedings, the young age of the child, and his close attachment to his mother − with whom he was sharing his family, social and everyday life − the child’s country of habitual residence might have shifted from the USA to Ukraine, thereby precluding grounds under the Hague Convention for seeking the child’s return to the USA.51. The domestic courts did not expressly consider the issue of shifting the country of habitual residence. The Court notes in this respect that the concept of “habitual residence” is not defined in the Hague Convention and it is not interpreted uniformly in the various jurisdictions. Nevertheless, the domestic courts, having regard to the above factual findings and to the manner the applicant exercised his custody rights, eventually concluded that the child’s retention in Ukraine could not be regarded as wrongful in the meaning of the Hague Convention and there were therefore no grounds to make the return order. The courts also found in substance that the child was entirely settled in his current environment in Ukraine and that his removal to the USA, in the particular circumstances, would be contrary to the child’s best interests. It follows that the domestic courts gave due consideration, within the scope of the Hague Convention proceedings, to the child’s interests and carefully correlated them with other interests at stake. In these circumstances the Court takes the view that, having regard to the margin of appreciation enjoyed by the authorities in such matters, the decision of the courts to refuse to order the child’s return was based on relevant and sufficient grounds and that the interference in the applicant’s right to respect for his family life, as guaranteed by Article 8 of the Convention and considered in the light of the Hague Convention, was proportionate to the legitimate aim pursued.52.

Article of the Convention at issue: Article 8
Outcome: no_violation