Communicated on 12 December 2016

FIFTH SECTION

Application no. 25612/12 Sergiy Oleksiyovych VYSHNYAKOV against Ukraine lodged on 17 April 2012

STATEMENT OF FACTS

The applicant, Mr Sergiy Oleksiyovych Vyshnyakov , is a Ukrainian national who was born in 1973 and lives in Mykola iv.

A. The circumstances of the case

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

The applicant married O. in 2006. The spouses lived in Mykolaiv. In March 2007 their daughter S. was born. On 15 April 2009 the Leninsky District Court in Mykolaiv (“the Mykolaiv Court”), in response to an application from O., pronounced the couple ’ s divorce. It appears that upon the couple ’ s separation, O. and S. moved out and stayed at O. ’ s residence in Mykolaiv.

On 4 August 2009, in response to an application from the applicant, the Mykolaiv Court determined his rights of contact with his daughter. In particular, it ordered that the applicant “be granted an opportunity to see his daughter no less than three days a week, with her staying overnight at his home, the dates and times to be fixed by mutual agreement in advance”.

In the autumn of 2009 O. and S. moved to Selydove in the Donetsk Region, to reside with O. ’ s boyfriend. The distance by road between Mykolaiv and Selydove is about 600 kilometres, at least an eight-hour drive.

On 18 August 2012 the Selydove Court ordered the applicant to pay child support payments to O.

In March 2012 the State Bailiffs opened proceedings for enforcement of the court order of 4 August 2009 regulating the applicant ’ s contact rights. In April 2012, having officially notified O. of her obligation to comply, they discontinued their efforts and the enforcement proceedings. He appealed to courts seeking to declare the Bailiffs ’ actions unlawful but the courts rejected his appeal. The final decision was delivered by the Higher Specialised Civil and Criminal Court (“the HSC”) on 3 August 2012.

The applicant then brought a claim for damages against O. for obstructing enforcement of the 2009 contact rights order. The final decision in those proceedings, rejecting his claim, was delivered by the HSC on 14 June 2013.

In the spring of 2014 illegal armed groups associated with two self-proclaimed entities known as the “Donetsk People ’ s Republic” and the “Luhansk People ’ s Republic” started operating in the Donetsk and Luhansk Regions, seizing control of certain parts of those regions by force. Ukraine ’ s armed forces launched a military operation against them. These hostilities reached their peak in the summer and autumn of 2014 and in January ‑ February 2015. A ceasefire line was later established, which has remained largely static ever since. Selydove is in the territory controlled by the Ukrainian Government.

In August 2014 the applicant lodged a claim with the Selydove Court seeking a declaration that O. was unlawfully failing to cooperate in enforcing the Mykolaiv Court ’ s decision of 4 August 2009. He also asked the court to award him custody of his daughter and determine that her place of residence should be his home in Mykolaiv. He argued that O. was unemployed, and had no independent income, and that the child was fully dependent on the child support payments which the applicant was duly making. He also argued that it was dangerous for the child to continue to reside in the proximity of a theatre of armed conflict. Moreover, there was a risk that the conflict might spread to Selydove . In support of the latter assertion the applicant cited media reports according to which representatives of the so-called “Donetsk People ’ s Republic” were threatening to capture the entire territory of the Donetsk Region.

He stressed that the courts should not apply Principle 6 of the 1959 Declaration of the Rights of the Child (“the Declaration”) – according to which “ a child of tender years shall not, save in exceptional circumstances, be separated from his mother ” – because the Declaration had only advisory value and that particular provision contradicted the principle of equality of parents ’ rights guaranteed by domestic law, by Protocol No. 12 to the Convention, and by Article 18 of the UN Convention on the Rights of the Child.

On 5 May 2015 the Selydove Court rejected the applicant ’ s claim. The court established that the applicant was employed and had good references from his employer, and had no recorded mental health or addiction problems. The court quoted reports compiled by the child protection authorities in Mykolaiv according to which the applicant could provide secure, well ‑ equipped accommodation suitable for a child, and had stable employment and income. Accordingly, the Mykolaiv authorities considered that it was possible for the applicant ’ s daughter to live with him and recommended that the applicant be afforded the opportunity to spend time with his daughter from 1 June to 15 August and over other school breaks.

After quoting the relevant provisions of the domestic law and Principle 6 of the Declaration, the court observed that the applicant ’ s contact rights had been determined by the court decision of 4 August 2009. It then concluded that the applicant had failed to prove that O. had no independent income or that she had failed to perform her parental duties or was engaged in unlawful or immoral conduct. The court also stated that the ongoing military operations in the region did not mean that the child ’ s life was in danger.

On 14 August 2015 the Donetsk Regional Court of Appeal upheld the Selydove Court ’ s judgment.

On 23 December 2015 the HSC upheld the lower courts ’ decisions. Among the grounds for its decision, the Higher Court quoted Principle 6 of the Declaration and stated that the first ‑ instance court had correctly established that there were no exceptional circumstances which would justify separating the child from her mother.

B. Relevant domestic law

Under Article 51 of the Constitution and Article 5 of the Family Code, the family, childhood, motherhood and fatherhood all fall under the protection of the State. In particular, the State must promote and encourage motherhood and fatherhood and ensure that children are brought up within a family (paragraphs 2 and 3 of Article 5 of the Family Code). Where the State puts in place regulations concerning family matters, it must take into account the interests of the child to the greatest extent possible.

Article 160 § 1 of the Code provides that the place of residence of a child under ten years of age shall be determined on the basis of parents ’ agreement.

In accordance with Article 161 of the Code, in cases where parents who live separately cannot agree on the place of residence of a child under fourteen years of age, the dispute may be determined by a child protection authority or by a court.

When determining such a dispute, the respective child protection authority or court should take into account the parents ’ attitude 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.

A child protection authority or court cannot determine that a child ’ s place of residence is to be the home of a parent who does not have independent income, or abuses alcohol or drugs, or who by dishonourable conduct may cause damage to the development of the child.

C. Relevant international materials

1. United Nations Declaration of the Rights of the Child of 20 November 1959

The relevant provision of the Declaration reads:

Principle 6

“The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother...”

2. United Nations Convention on the Rights of the Child of 20 November 1989

The relevant provisions of the Convention, which came into force with respect to Ukraine on 27 September 1991, read:

Article 3

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. ...

Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

...”

COMPLAINTS

The applicant complains under Articles 6 and 13 of the Convention that the domestic authorities failed to enforce the court order granting him contact with his daughter and rejected his claim for damages against his former wife for failure to cooperate in the enforcement of the order.

The applicant also complains under Articles 2, 6, 13 and 14 of the Convention and Article 1 of Protocol No. 12 that the domestic courts, in rejecting in 2014 and 2015 his claim for custody of his daughter, failed to take into account the relevant interests of the child and discriminated against him on the grounds of sex.

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 particular:

1.1. Have the Ukrainian authorities failed to discharge their positive obligation to secure to the applicant the effective exercise of his right to respect for his family life, as determined by the contact order of 4 August 2009 ?

1.2. Was the decision-making process in determining the applicant ’ s daughter ’ s place of residence in 2014 and 2015, and in particular the reasons given by domestic courts for their decisions, in conformity with the applicant ’ s right to respect for his family life under Article 8 of the Convention?

2 . Has the applicant suffered discrimination on grounds of sex, contrary to Article 14 of the Convention read in conjunction with Article 8, in particular in view of the domestic courts ’ reliance on Principle 6 of the United Nations Declaration of the Rights of the Child of 1959?