Published on 19 July 2021

SECOND SECTION

Application no. 10477/21 Dmitrijus BYÄŒENKO against Lithuania lodged on 8 February 2021 c ommunicated on 1 July 2021

SUBJECT MATTER OF THE CASE

The application concerns international child abduction.

The applicant and his wife married in 2010 and had a son in 2011. They divorced in 2017. The child stayed with his mother, whereas the applicant had the right to see him in accordance with a court-approved schedule.

In March 2018 the applicant ’ s ex-wife moved to the Netherlands, taking their son with her. She did not inform the applicant about it or seek his consent. He initiated several sets of proceedings before the Lithuanian and the Dutch courts, seeking the return of his son to Lithuania.

In September 2018, in the course of the proceedings before the Lithuanian courts in which the applicant asked that his son ’ s place of residence be determined with him, the courts held that they did not have the jurisdiction to change the child ’ s place of residence because he lived in the Netherlands.

In the Netherlands, in June 2019 the first-instance court ruled that the child ’ s removal from Lithuania had been unlawful. It also considered that the boy had not yet established strong social ties with that country and that there were grounds to return him to Lithuania. However, it observed that the Lithuanian courts had previously found that they did not have the jurisdiction over the case. The Dutch court concluded that such decisions by the Lithuanian courts precluded it from ordering the child ’ s return to Lithuania. In August 2019 the appellate court upheld the conclusion that the child ’ s removal to the Netherlands had been unlawful. However, it considered that the boy had established strong social ties to that country and that he had a particularly close bond with his mother. Therefore, returning him to Lithuania would be contrary to his best interests.

In subsequent proceedings in Lithuania, the applicant asked the courts to determine his son ’ s place of residence as being with him, on the grounds that his ex-wife had abducted the child and precluded the applicant from seeing him. The courts dismissed his request and held that the fact of unlawful removal did not constitute sufficient grounds for changing the child ’ s place of residence. They found that the boy had adapted to the life in the Netherlands, his new home was suitable to his needs, and it was therefore in his best interests not to change it. They also considered that the applicant had not demonstrated that he could not exercise his visitation rights in the latter country.

The applicant complains about the decisions of the Lithuanian courts. Firstly, he complains under Article 8 of the Convention that his right to respect for his family life has been breached given the fact that the courts refused to return his son to Lithuania and that they did not take any action to ensure that his right to see his child remained effective. Secondly, he complains under Article 6 § 1 of the Convention that the courts made the decisions without hearing his son, without obtaining relevant expert assessment and without ensuring the participation of his ex-wife, which precluded the applicant from asking her questions. Lastly, he complains under Article 14 of the Convention that he was discriminated against as the child ’ s father, because the courts approved the unlawful actions of the mother.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention, in view of the fact that the domestic courts refused to order his son ’ s return to Lithuania? In particular, did the courts examine his complaints in the light of the requirements of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 and did they strike a fair balance between all the competing interests at stake (see X v. Latvia [GC], no. 27853/09, §§ 93-104, ECHR 2013, and the cases cited therein)?

2. Were the proceedings concerning the applicant ’ s son ’ s place of residence in line with the requirements of Article 6 § 1 of the Convention and Article 8 of the Convention (see Širvinskas v. Lithuania , no. 21243/17, §§ 96-97, 23 July 2019, and the cases cited therein)?

3. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the grounds of his gender, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention (see Konstantin Markin v. Russia [GC], no. 30078/06, §§ 124‑27, ECHR 2012 (extracts), and the cases cited therein)?