Communicated on 16 March 2020 Published on 18 May 2020

THIRD SECTION

Application no. 30560/19 P.D . against Russia lodged on 3 June 2019

STATEMENT OF FACTS

The applicant, Mr P . D . , is a Belgian national, who was born in 1972 and lives in Le Poizat-Lalleyriat , France.

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

The applicant had a relationship with a Russian national, Ms E. Since June 2014 they started living together in Geneva, Switzerland, with E. ’ s son from her previous relationship A. and E. ’ s mother.

On 4 June 2014, E. gave birth to their daughter, M. She is a national of Belgium and Russia.

On 5 May 2015 the applicant and E. signed an agreement as regards joint custody of M.

In November 2015 the relationship between the applicant and E. deteriorated and the applicant moved out to live in France.

From November 2015 to December 2016 the applicant ’ s daughter lived with E. and spent several days a week with the applicant at his place of residence in France.

On 5 December 2016 when M. and A. were with the applicant, A. was allegedly subjected to sexual abuse by the applicant ’ s close friend Mr S.

Criminal proceedings were instituted against S. in Switzerland on charges of committing actions of sexual nature, coercion to such actions and child pornography, and he was detained on remand.

At 7.30 a.m. on 16 December 2016 E. together with the children and her mother left Geneva for St Petersburg, via Zurich. She never returned to Switzerland.

On 5 July 2017 S. was released on bail and obliged to undergo mandatory psychiatric and psychotherapeutic treatment.

On 10 July 2017 S. was prohibited, pending the criminal proceedings, from any direct or indirect contact with the applicant, E. and A., with reference to the existence of a risk of revenge and recidive in view of the crimes previously committed by him in France.

The outcome of the criminal proceedings against S. is unknown.

Meanwhile, following the incident of 5 December 2016, E. applied to the Geneva Court for Adult and Child Protection ( le Tribunal de protection de l ’ adulte et de l ’ enfant ) challenging the parental authority agreement between her and the applicant and seeking that the applicant be denied all contact with his daughter.

Following E. ’ s request, on 13 December 2016 the Geneva Court for Adult and Child Protection took an interim decision to divest the applicant of his parental authority, to forbid him all contact with his daughter, to prohibit him from taking the latter outside the territory of Switzerland, changing her place of residence, and to oblige him to hand the child ’ s documents in his possession to the Minors ’ Protection Service. This decision was declared immediately enforceable.

Following the applicant ’ s request, at 7.26 p.m. on 16 December 2016 the Geneva Court for Adult and Child Protection took an interim decision prohibiting E. from changing M. ’ s place of residence, to take her, or to have her taken, outside the territory of Switzerland, and to oblige her to hand the child ’ s documents to the Minors ’ Protection Service.

On an unspecified date in January 2017 criminal proceedings were instituted against E. in Switzerland on charges of kidnapping. The status of those proceedings is unknown.

On 6 February 2017 the Geneva Court for Adult and Child Protection lifted the suspension of the applicant ’ s parental authority in respect of his daughter, considered that there had been no evidence to the effect that contact with the applicant might represent any risk for the child, lifted the ban on the applicant ’ s contact with his daughter and held that, in view of geographical distance between them, until the child ’ s return to Geneva the contact should take place by means of telephone communication (namely by Skype) three times a week.

On 21 November 2017 the Geneva Court for Adult and Child Protection took a decision to withdraw E. ’ s de facto custody of the child as well as the right to determine the latter ’ s place of residence, to order the child ’ s placement with the applicant, to order E. to bring the child to Switzerland and to grant her the right to maintain contact with the child, without leaving Switzerland, every other weekend, a day during the week and half of all holidays. This decision was immediately enforceable.

Meanwhile, on 23 August 2017 the applicant lodged an application with the Dzerzhinskiy District Court of St Petersburg (“the District Court”), seeking his daughter ’ s return to Switzerland on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

On 11 January 2018 the District Court rejected the applicant ’ s claim for his daughter ’ s return to Switzerland. The District Court noted at the outset that it followed from the documents in the case file, and was not disputed by the parties, that M. ’ s habitual place of residence had been Switzerland. It further considered that the child ’ s removal to Russia in December 2016 and her retention there had not been wrongful as it had not been carried out in breach of the applicant ’ s rights of custody. The District Court noted in this connection that at the time when E. left Switzerland for Russia with the children, at 7.30 a.m. on 16 December 2016, the interim decision of 13 December 2016, divesting the applicant of his parental authority in respect of his daughter and forbidding him to have any contact with her, was in effect, and that until 6 February 2017. Therefore, during this period E. exercised sole custody of M., which included the right to determine the latter ’ s place of residence. The District Court further noted that the subsequent interim decision of 16 December 2016 forbidding E. to change M. ’ s place of residence and to leave Switzerland had been taken after E., having sole custody of M., had already left Switzerland with the children. She had learned about this decision at 7.26 p.m. from a letter sent to her by her counsel. No evidence to the contrary had been provided by the applicant. The District Court furthermore noted that the above decision of 16 December 2016 had not provided for the restoration of the applicant ’ s parental authority and had not vested in him the right to determine the child ’ s place of residence. Lastly, the District Court considered, with reference to Article 13 b of the Hague Convention, that there had been a risk that M. ’ s return to Switzerland would expose her to physical or psychological harm. The District Court noted in this respect the incident of 5 December 2016 involving the alleged sexual abuse of E. ’ s son by the applicant ’ s close friend S. and related criminal proceedings on charges of committing actions of sexual nature, coercion to such actions and child pornography, which had been pending in Switzerland, S. ’ s having been released on bail under an obligation to undergo mandatory psychiatric and psychotherapeutic treatment, the ban on his direct or indirect contact with A., the applicant and E., the absence of such a ban in relation to M., and the existence of a risk of revenge or repeated crime by S., which did not exclude the possible risk of infliction of physical or psychological harm to M., who could also become a victim of sexual abuse. In view of the above circumstances and the requirements of securing the best interests of the child, taking into account M. ’ s young age (three years old), her need for her mother ’ s everyday care, the District Court arrived at the conclusion that there had been no grounds for granting the applicant ’ s request for his daughter ’ s return to Switzerland.

The applicant appealed arguing that the child ’ s removal to Russia had been wrongful. The decision of 13 December 2016 had been of a temporary nature and had not implied that E. could change the child ’ s place of residence unilaterally. The applicant retained his right to be the child ’ s parent and to seek protection of his rights through the existing legal mechanisms. In particular, in exercise of these rights the applicant requested the Geneva Court for Adult and Child Protection to temporarily prohibit E. from changing the child ’ s place of residence. The applicant further argued that the risk of physical or psychological harm to M. invoked by the District Court in application of Article 13 b of the Hague Convention had not been sufficiently proved.

On 22 March 2018 the St Petersburg City Court (“the City Court”) upheld the above judgment of 11 January 2018 on appeal.

On 18 July and 20 November 2018 the applicant ’ s cassation appeals were rejected by a judge of the City Court and a judge of the Supreme Court of the Russian Federation (“the Supreme Court”), respectively.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Switzerland on 1 June 2015. For the relevant provisions of the Hague Convention see X v. Latvia [GC], no. 27853/09, § 34, ECHR 2013.

In the present context reference is made to the following provisions of the Hague Convention:

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 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.

...”

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 procedure for the examination of requests for the return of children unlawfully removed to, or retained in, the Russian Federation, and for securing protection for rights of access in respect of such children in accordance with the international treaty of the Russian Federation, is governed by Chapter 22.2 of the Code.

The Code provides that the return request is to be submitted to a court by a parent or other individual who believes that his/her custody or access rights have been violated, or by a prosecutor (Section 244.11).

The return request must be examined by the court, with the mandatory participation of a prosecutor and the childcare authority, within forty-two days of its receipt, including the time for the preparation of the hearing and the drawing up of the judgment (Section 244.15).

The judgment handed down in a case concerning the return of a child unlawfully removed to, or retained in, Russia must contain the reasons why the child must be returned to the State of his/her habitual residence ‒ in accordance with the international treaty of the Russian Federation ‒ or the reasons for refusing the request for return in accordance with the international treaty of the Russian Federation (Section 244.16).

An appeal may be lodged against the judgment within ten days. The appeal must be examined within one month of its receipt by the appeal court (Section 244.17).

COMPLAINTS

Referring to Articles 8 and 13 of the Convention, the applicant complains that the refusal of his application for the return of his daughter to Switzerland amounted to a violation of his right to respect for his family life.

QUESTIONS TO THE PARTIES

1. Did the judgment of the Dzerzhinskiy District Court of St Petersburg of 11 January 2018 refu sing the applicant ’ s request for his daughter ’ s return to Switzerland amount to an interference with the applicant ’ s right to respect for his family life within the meaning of Article 8 § 1 of the Convention?

2. If so, was that interference “in accordance with the law” and “necessary” within the meaning of Article 8 § 2 of the Convention?