FIFTH SECTIONCASE OF SATANOVSKA AND RODGERS v. UKRAINE(Application no. 12354/19)    JUDGMENT STRASBOURG28 January 2021   This judgment is final but it may be subject to editorial revision.In the case of Satanovska and Rodgers v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Arnfinn Bårdsen, President, Ganna Yudkivska, Mattias Guyomar, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 12354/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ukrainian national, Ms Mariya Oleksandrivna Satanovska (“the first applicant”) and her son Alexander George Rodgers (“the second applicant”), on 27 February 2019;the decision to give notice of the application to the Ukrainian Government (“the Government”);the parties’ observations;Having deliberated in private on 17 December 2020,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The present case concerns allegations under Article 8 of the Convention that the Ukrainian authorities, in the absence of sufficient grounds, ordered the return of the second applicant to the United Kingdom in proceedings under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.THE FACTS2. The applicants were born in 1977 and 2011 respectively and live in Kyiv. They were represented by Mr O.V. Zarutskyy, a lawyer practising in Kyiv.3. The Government were represented by their Agent, Mr I. Lishchyna.4. The facts of the case, as submitted by the parties, may be summarised as follows.5. In 2010 the first applicant married R., a British national. In 2013 they divorced.6. On 25 September 2011 their son, the second applicant, was born in the United Kingdom, where the family resided.7. On 11 April 2012 the applicants and R. went to Ukraine. On 14 April 2012 R. returned to the United Kingdom; the applicants were to return on 22 April 2012.8. As the applicants did not return on the date agreed, in July 2012 R. instituted proceedings under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”) for the return of the second applicant to the United Kingdom, arguing that his son had been wrongfully retained in Ukraine.9. In December 2012 the Kyiv City Department of Justice, acting on behalf of R., lodged a claim with the Pechersk District Court of Kyiv (“the District Court”) for the return of the second applicant to the United Kingdom.10. On 5 June 2013 the District Court dismissed the claim, considering that the father of the child had agreed to the child’s retention in Ukraine, and that the child would be exposed to a risk of physical or psychological harm in the event of his return to the United Kingdom. The court noted that the child’s mother was not in a position to travel to the United Kingdom, in view of her health issues. On 3 September 2013 the Kyiv City Court of Appeal quashed that decision after finding that no exception under the Hague Convention had been substantiated by convincing evidence. The appellate court therefore ordered the return of the second applicant to the United Kingdom. The first applicant appealed on points of law.11. On 23 October 2013 the Higher Specialised Court on Civil and Criminal Matters (“the Higher Specialised Court”) dismissed the first applicant’s appeal on points of law as unfounded. On 2 July 2014 the Supreme Court, having examined an application by the first applicant for review of the case, quashed the decision of 23 October 2013 and remitted the case to the Higher Specialised Court for a fresh hearing. On 10 September 2014 the Higher Specialised Court quashed the Kyiv City Court of Appeal’s decision of 3 September 2013, considering that the facts regarding possible exceptions under the Hague Convention had not been properly examined, notably the issue of whether there was a risk of the child being exposed to physical or psychological harm in the event of his return to the United Kingdom.12. On 3 December 2014 the Kyiv City Court of Appeal upheld the District Court’s decision of 5 June 2013 refusing the application for the child’s return, after finding that the father had agreed to the child’s retention in Ukraine, that there was a risk of physical or psychological harm to the child in the event of his return, and that the child had adapted to a new environment. On 1 April 2015, considering that the relevant facts had not been sufficiently examined, the Higher Specialised Court quashed the decisions of 5 June 2013 and 3 December 2014 and remitted the case to the first-instance court for a fresh hearing.13. On 27 May 2016 the District Court dismissed the claim for the return of the child to the United Kingdom; that decision was upheld by the Kyiv City Court of Appeal on 21 September 2016. R. did not appear in person at the hearings before those courts. The hearings were held in the presence of R.’s legal representative, the first applicant and her legal representative. The representative of the local childcare authority attended the hearing before the first-instance court. On the basis of documents submitted by the first applicant, the courts stated that her son had settled well into his new social environment and had fitted well into his mother’s family; the second applicant lived in the apartment belonging to his mother, went to an educational institution corresponding to his age, received appropriate medical treatment, and the material conditions of his environment were appropriate. The courts further found that there was no evidence that R. had actually exercised custody rights in respect of the child at the time when they had lived in the United Kingdom.14. The courts then referred to three reports on psychological examinations of the second applicant which had been prepared in 2013 and 2015 at the request of the first applicant. The first report of 12 February 2013 stated that the child was attached to his mother and that their relationship was the basis for the child’s further successful development. According to the second report of 30 December 2013, removing the child to the country of origin would go against his need for security; it would endanger his speech development, and separating him from his mother would result in profound psychological trauma with long-term consequences. The third report of 28 July 2015 stated that the second applicant lived in a stable environment and perceived his place of residence in Ukraine as a permanent and comfortable place for himself and his family; returning the child to the country of origin would expose him to a serious risk of psychological and physical harm because of the inevitable disruption of his close relationship with his mother, the necessity for him to adapt to a new environment, and the stress arising from the change in social and material conditions. The psychologist who had examined the child appeared before the District Court and gave oral evidence confirming the information contained in the reports. Having assessed that evidence, the courts found under Article 13 § 1 (b) of the Hague Convention that there was a grave risk that returning the second applicant to the United Kingdom would expose him to psychological harm.15. R. lodged an appeal on points of law, arguing that the courts had failed to decide the case within the limits of the Hague Convention and that the proceedings in question could not turn into a dispute over custody rights. He insisted that he had not agreed to the second applicant staying in Ukraine and retention of the child there was wrongful, and the courts had an obligation to order the child’s return to the United Kingdom.16. The first applicant lodged an objection to the appeal on points of law, contending that R. had not actually exercised custody rights in respect of the child, and that there were psychological reports showing that the child would be exposed to psychological and physical harm in the event of his return to the United Kingdom. Moreover, she argued that she could not travel to the United Kingdom, owing to health and financial issues and the fact that her UK entry visa had expired in November 2012.17. On 29 August 2018 the Supreme Court quashed the above decisions and ordered that the child should be returned to the United Kingdom. The hearing was held in the presence of R.’s legal representative, the first applicant and her lawyer as well as the representative of the local childcare authority. The Supreme Court held that the lower courts had examined circumstances which were not the subject-matter of the Hague Convention proceedings, in particular: the parents’ dwellings; the possibility of ensuring appropriate living conditions for the child; the child’s psychological attitude towards each parent; and the mother’s role in caring for and raising the child in Ukraine and providing him with material support. The Supreme Court then noted that R. had initiated the return proceedings within the one-year time-limit, and the child’s adaptation to his living environment in Ukraine could not therefore justify the decision to refuse the application for his return, as provided for by Article 12 § 2 of the Hague Convention.18. As regards the application of Article 13 § 1 (b) of the Hague Convention which concerns the grave risk of the child being exposed to physical or psychological harm in the event of his return, the Supreme Court overturned the lower courts’ findings in the following way:“No convincing evidence was adduced within the proceedings to prove that the return of the child to the country of his permanent residence, the child’s communication with his relatives, or his studying in the culture and language of the country of origin would expose him to a risk of physical or psychological harm.

Outcome for Article 8: violation