Communicated on 30 September 2020 Published on 19 October 2020

FIFTH SECTION

Application no. 46427/19 Olena Volodymyrivna VLASENKO against Ukraine lodged on 22 August 2019

STATEMENT OF FACTS

The applicant, Ms Olena Volodymyrivna Vlasenko, is a Ukrainian national who was born in 1984 and lives in Kyiv. She is represented before the Court by Mr R.N. Rozmetov , a lawyer practising in Kyiv.

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

The applicant was married to V. and they had a daughter, S., and a son, M., born in September 2008 and February 2011, respectively. In 2013 the applicant and V. divorced. It was agreed that the children would remain with the applicant and that V. would have contact rights. Since 2013 the applicant has been living with F., a practising Muslim. In 2014 she converted to Islam. In 2015 the applicant and F. married.

In September 2015 V. lodged a request with the Childcare Authority of Desnyansky Distrtict State Administration in Kyiv (hereafter “the childcare authority”) to change the children ’ s residence, submitting that the applicant had not properly taken care of the children and had prevented him from taking part in raising them.

On 21 September 2015 the applicant and the children were interviewed by psychologists, who concluded that the children showed signs of psychological tension, anxiety and pedagogical neglect. On 23 September 2015 V. was also interviewed by a psychologist.

On 1 October 2015 a commission of the childcare authority interviewed the applicant, V. and their children.

During the interview by the commission, V. stated that the children had been forced into Islam, had spent entire days at the mosque and had not visited children ’ s establishments. His son had been circumcised at home and he had complained to V. that F. beat him.

The applicant explained to the commission that the children received appropriate care and were provided with all the necessary conditions for their development.

When interviewed, the applicant ’ s daughter explained that she would rather wear plaits and bows than a hijab . The applicant ’ s son alleged that his mother had beaten him all over his body.

Having examined the psychologists ’ reports and the oral submissions from family members, the commission issued a recommendation that the children should reside with their father.

On 6 October 2015 the childcare authority issued a report that the children should live with their father. In reaching that conclusion, the authority had examined the submissions from the applicant and V., the opinion of the applicant ’ s mother who suggested that the children should reside with their father, the psychologists ’ reports, the interviews before the commission and other material.

On 9 October 2015 V. brought court proceedings seeking to change the children ’ s residence to his home. He relied on the aforementioned arguments and specified that M. had been circumcised at home without V. ’ s consent.

The applicant objected and provided a medical certificate stating that M. had had an operation in 2014 due to foreskin inflammation. She also submitted a report from a private psychology centre dated 4 July 2016 showing that S. and M. were intellectually and socially developed, emotionally close to the applicant and not close to V. The applicant insisted that F. took care of the children and that separating the children from their mother might traumatise them.

On 22 August 2016 the Desnyanskyy District Court of Kyiv found for V. It examined the material collected by the childcare authority and the other evidence presented by the parties, and questioned witnesses. The court found that the applicant had been taking decisions concerning the children on her own without consulting V. Having regard to the children ’ s interests, it ruled that the children should reside with V.

On 20 December 2016 Kyiv City Court of Appeal found for the applicant. It noted that V. had failed to prove that the applicant ’ s lifestyle had negatively affected the children ’ s development and health and that there was a need to change their place of residence.

On 13 June 2018 the Supreme Court quashed the decision of 20 December 2016 and remitted the case to the appellate court for a fresh hearing. The Supreme Court noted that M. had been circumcised without V. ’ s knowledge, that the whole lifestyle of the children had been changed without V. ’ s agreement and that it had not been established that those changes were in the children ’ s best interests. The Supreme Court noted that the appellate court had reassessed the evidence in the file, but it had failed to examine the possibility of interviewing the children at the court hearing.

On 10 January 2019 the appellate court found for V. It obtained certificates from the children ’ s school, according to which S. and M. were intelligent and diligent in their studies, and respectful. The parents supervised their studies but the children did not participate in extracurricular activities. S. and M. were questioned at a court hearing in the presence of a psychologist and expressed their wish to stay with the applicant. In assessing their statements, the court noted that the children were constrained and afraid of showing their emotions. The court further found that the applicant had not consulted V. as to the children ’ s lifestyle. It stated as follows:

“[D] uring the period of the case examination, the children ’ s lifestyle had changed, they did not take part in extracurricular activities and school events, did not visit children ’ s entertainment centres and cultural establishments, instead they spent all their time after school in the mosque.

The case file shows that the children have been totally deprived of their father ’ s presence.

Thus, the court concludes that [V.] would ensure their best interests and rights for education, development, health , upbringing in a loving and respectful environment.”

On 27 June 2019 the Supreme Court upheld that decision.

According to Article 51 of the Constitution, each spouse has equal rights and duties in marriage and the family.

The Code provides that a woman and a man have equal rights and obligations in family relations, marriage and the family (Article 7 § 6). The place of residence of a child under ten years of age is to be determined jointly by the parents (Article 160 § 1). If parents who live separately cannot agree on the place of residence of a child under the age of fourteen years, the dispute may be determined by a guardianship authority or by a court. When deciding such a dispute, the guardianship authority or the court should take into account the parents ’ respective attitudes to their parental duties, the personal disposition of the child to each parent, the age of the child, the child ’ s state of health and other relevant circumstances (Article 161 § 1). The guardianship authority or court may not order that the place of a child ’ s residence is to be with a parent who has no independent income, or abuses alcohol or drugs, or may cause damage to the child ’ s development by dishonourable conduct (Article 161 § 2).

A child is entitled to express his or her opinion on the matters which concern that child or his or her family (Article 171 § 1). A child who is able to express his or her opinion should be heard during the determination of the dispute regarding that child ’ s upbringing, place of residence, deprivation or restoration of parental rights and property administration (Article 171 § 2). A court may make a ruling contrary to the child ’ s opinion if the child ’ s interests so require (Article 171 § 3).

COMPLAINT

The applicant complains under Article 8 of the Convention that, in changing her children ’ s place of residence, the courts failed to strike a fair balance between the competing interests and that the courts ignored the children ’ s wish to stay with their mother.

QUESTIONS TO THE PARTIES

Was the judicial decision-making process in determining the children ’ s place of residence in conformity with the applicant ’ s right to respect for family life under Article 8 of the Convention? Were the courts obliged to hear the opinion of the children in that dispute? If so, have the courts taken all the necessary steps to establish their views on the subject-matter of the dispute? Have the courts taken into account those views?