Communicated on 30 September 2020 Published on 19 October 2020

FIFTH SECTION

Application no. 53099/19 Sergiy Ivanovych LYAKH against Ukraine lodged on 4 October 2019

STATEMENT OF FACTS

The applicant, Mr Sergiy Ivanovych Lyakh , is an Israeli national, who was born in 1978 and lives in Bat Yam.

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

On 11 March 2003 the applicant married Ms P. On 29 July 2004 and 2 July 2007 their two sons were born. The family lived in Ukraine until 6 September 2011, the date on which they all repatriated to Israel.

On 15 December 2013 the applicant and two children arrived in Ukraine to visit their maternal grandmother.

On 27 February 2014 the applicant returned to Israel alone. The children continued to live with their maternal grandmother.

On 17 July 2016 the applicant and Ms P. divorced in Israel.

On an unspecified date in July 2016 the applicant arrived in Ukraine in order to take the children to Israel. As the grandmother objected to the children ’ s return, the applicant left Ukraine alone.

Upon his arrival in Israel, the applicant initiated the proceedings under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”) with a view to obtaining the return of the children.

On 21 February 2017 the Ministry of Justice of Ukraine received the applicant ’ s request under the Hague Convention.

On 19 September 2017 the Khmelnytskyy Regional Chief Department of Justice, acting in the applicant ’ s interests, lodged a claim with the Khmelnytskyy District Court (“the District Court”), asserting that the children had been wrongfully retained in Ukraine and must be returned to Israel in accordance with the Hague Convention.

On 20 December 2017 the District Court dismissed the claim. The court heard the children in person who submitted that they did not wish to return to their father in Israel, arguing that they had language difficulties and they did not have friends in Israel; on the other hand, they felt comfortable with their grandmother in Ukraine. The court then examined a report prepared by a psychologist confirming the wish of the children to stay with their grandmother. Ms P. did not attend the hearing and submitted in writing that the children should stay with their grandmother in Ukraine. Having examined further evidence regarding the material and physical conditions of the children ’ s residence in Ukraine, the District Court concluded that the children were entirely settled in Ukraine and could not be removed from Ukraine by force.

On 4 April 2018 the Khmelnytskyy Regional Court of Appeal upheld that judgment as reasoned and substantiated. It specified that the District Court had duly considered the children ’ s view on the dispute as they had attained the age when their opinion should be taken into account.

On 5 June 2019 the Supreme Court dismissed the applicant ’ s appeal on points of law, finding that the lower courts had properly resolved the dispute.

The relevant provisions of the Hague Convention (entry into force in respect of Ukraine on 1 September 2006), state as follows:

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 13

“...

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.

...”

COMPLAINTS

The applicant complains under Articles 6 and 8 of the Convention that the Ukrainian authorities have unreasonably delayed the treatment of his application for his children ’ s return to Israel and that they have failed to ensure his reunion with his children.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for private and family life under Article 8 of the Convention on account of his allegation that the respondent State has failed to ensure the return of his sons to Israel? Did the domestic authorities comply with the requirement of speediness inherent in the proceedings under the Hague Convention on the Civil Aspects of International Child Abduction?

In the assessment of the above, what is the relevance of the fact that the children arrived in Ukraine in 2013 whereas the applicant initiated their return procedure in 2016?