Communicated on 5 January 2016

FIFTH SECTION

Application no. 71797/13 Ivan Mykolayovych KHALANCHUK against Ukraine lodged on 30 October 2013

STATEMENT OF FACTS

The applicant, Mr Ivan Mykolayovych Khalanchuk , is a Ukrainian national, who was born in 1975 and lives in Slavuta . He is represented before the Court by Mr Y. Kalka, a lawyer practising in Rivne.

A. The circumstances of the case

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

In 1994 the applicant married L., with whom he had two daughters, V., born in 1995, and D., born in 2007.

On 15 November 2010 the Rivne Town Court dissolved the applicant ’ s marriage, having found that the applicant and L. had been in a situation of conflict, which they had not been able to resolve, and that they had not been living as a family for about six months . The court held that their marriage would be contrary to their own interests and those of their children.

The court further noted that the children lived with L. and that the applicant did not oppose their remaining with her. Having also taken into consideration the view of the Childcare Service that the children could live with either of the parents, the court granted custody of the children to L. and ordered the applicant to pay maintenance for their upbringing.

On 30 November 2010 a commission, set up by the Rivne District Administration to deal with childcare matters, decided unanimously that the applicant should be authorised to meet his younger daughter D. on a fortnightly basis between 5 p.m. on Friday and 6 p.m. on Sunday. The applicant did not seek a decision concerning his contact with V., his elder daughter

According to the applicant, notwithstanding that decision, L. often hindered his access to D. The applicant complained to the childcare commission and the police, but to no avail. The police did not find any elements of an offence in L. ’ s actions. The applicant was advised to raise the matter before the courts.

On 3 January 2012 the applicant lodged a complaint under Article 159 of the Family Code of 2002 with the Rivne Town Court, stating that his former wife had hindered his access to D. and his contact with her, and requesting that the court order specific arrangements for such contact. He sought authorisation, inter alia , to meet her on a fortnightly basis between 4 p.m. on Friday and 9 a.m. on Monday, with D. staying overnight at his home; to meet her between noon and 8 p.m. on his birthday and on that of his father and grandmother; for her to spend half her school holidays with him at his home; and to travel abroad with her for leisure purposes.

On 27 February 2012 the court started proceedings in respect of the applicant ’ s claim.

According to the applicant, there were substantial delays in the proceedings owing to the failure of the court to schedule a hearing for about a year and to repeated postponements of the hearings, without any acceptable justification. He complained of the protracted proceedings to the administration of the court on a number of occasions, but to no avail.

In May 2013 the court ordered the Childcare Service to give an opinion as regards possible arrangements for the applicant ’ s contact with D.

By July 2013 the Childcare Service had completed its opinion, as requested by the court. It stated that the arrangements for the applicant ’ s contact with D., which had initially been set out in the decision of 30 November 2010, had to be reconsidered as a result of new developments. In particular, D. was to attend primary school from September 2013 and would therefore need time to prepare for her lessons, which would require more attention from her mother. The applicant ’ s behaviour had also changed, as several criminal cases had been opened against him and he had been convicted of a criminal and an administrative offence.

The Childcare Service considered that the applicant should be allowed to meet D. once a month, on Saturday or Friday, between noon and 5 p.m., in agreement with L. and in her presence, and on the applicant ’ s birthday, between 2 p.m. and 6 p.m., at his home.

The applicant claims that he had no chance to familiarise himself with the Childcare Service ’ s opinion before it was submitted to the court.

In the proceedings, the applicant argued that the opinion was not objective or impartial. He stated that when dealing with the court ’ s request in his case, the Childcare Service had not contacted him or examined his living conditions or those of L. The applicant further argued that the information contained in the opinion about the criminal cases pending against him was incorrect and, in any event, was not decisive for the purposes of the proceedings. According to him, he had been convicted of a breach of traffic regulations which had led to the death of a victim in 2011, and had eventually been amnestied. Two other sets of criminal proceedings had been initiated on charges of theft and the intentional infliction of minor bodily harm, and had been pending at the time. The applicant argued that he had not been convicted of an administrative offence as the proceedings against him had been terminated owing to the absence of any elements of an offence in his actions.

On 17 July 2013 the Rivne Town Court delivered a judgment in the case. It relied principally on the Childcare Service ’ s opinion and endorsed the arrangements for the applicant ’ s contact with D. suggested by the Childcare Service. The court found that a meeting once a month between the applicant and D. “would be enough” and would be in the best interests of the child.

The court also allowed the applicant to travel with the child for leisure purposes two times per year for a total duration of up to a month, subject to L. ’ s consent and during a period designated by her.

The court rejected the request by the applicant to travel abroad with D., holding that there existed a specific procedure for that purpose which required, inter alia , that the mother give her consent, certified by a notary.

In the judgment, the court noted, inter alia , that the applicant met the child at her nursery school and had quite often taken her for a walk. There was no evidence that his care for the child had been insufficient or that he had behaved inappropriately. According to the judgment, the applicant ’ s personality had also been taken into account, though no details were given in that regard.

The applicant appealed, arguing that the first-instance court had failed to examine thoroughly the circumstances of the case and that the arrangements for his contact with D. were in violation of the legislative guarantee of equality between parents in their relations with their children. In particular, he alleged that the first-instance court had disregarded his submissions challenging the Childcare Service ’ s opinion and his argument that L. would never give her consent for the applicant to take D. abroad. He also argued that it would be detrimental to his relations with D. and to her mental well-being if he had to meet her in the presence of L., as the latter would cause conflicts and disputes during such meetings, as she had done in the past. The applicant lastly stated that the first-instance court had relied on documents submitted by L., which had not been disclosed to him. He provided no details in that regard.

On 4 September 2013 the Rivne Court of Appeal rejected the applicant ’ s appeal, having found that the arrangements approved by the first-instance court for his contact with D. were in accordance with the law and in the best interests of the child, given her age and the information about the applicant ’ s conviction.

The applicant lodged a cassation appeal, invoking the same arguments as in his ordinary appeal. He also stated that the lower courts, having restricted his contact with D., had disregarded the fact that there had been no evidence whatsoever suggesting that such contact would impair the child ’ s “normal development”, and had thus violated Article 157 of the Family Code and procedural rules.

On 1 October 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant ’ s cassation appeal, finding that it contained no arguments requiring an examination of the evidence in the case or demonstrating that the lower courts had violated procedural or substantive law.

The applicant unsuccessfully challenged the actions of the first-instance judge before the Higher Qualification Commission of Judges. His complaint was rejected as unsubstantiated.

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 in 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.

Articles 151 and 163 of the Family Code provide that children who are minors should, as a priority, be “brought up personally” by their parents and live with them. The rights of parents – including those living separately from the child – to bring up a child who is a minor and to communicate with him or her can only be restricted by law (Articles 153 and 157). A parent who has custody of the child must not hinder the other parent ’ s communication with a child or his or her participation in the child ’ s upbringing, provided this does not impair the child ’ s normal development. A parent living separately from a child may seek the assistance of the Childcare Service or of the courts to enforce his or her parental rights in cases where no agreement has been reached on that matter with the parent who has custody of the child or where that parent hinders the exercise of the other parent ’ s parental rights. When deciding on arrangements for a parent ’ s contact with a child and his or her participation in the child ’ s upbringing, the childcare authorities and the courts should take into account the parent ’ s “attitude towards his or her parental obligations”; the child ’ s affection towards any of the parents; the child ’ s age and state of health; the parent ’ s state of health and living conditions; and any “other important circumstances”. Where it is in the best interests of a child, the courts may require the presence of another person during a parent ’ s meetings with the child (Articles 157-159).

Similar provisions concerning the upbringing of children and contact with their parents are contained in sections 11, 12 and 15 of the Act on the Protection of Childhood of 26 April 2001.

C. The United Nations Convention on the Rights of the Child of 1989

The relevant provisions of the United Nations Convention on the Rights of the Child of 1989, which entered into force in respect of Ukraine on 27 September 1991, read:

Article 5

“States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. ”

Article 9

“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child ’ s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child ’ s best interests.

...”

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.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

...”

COMPLAINT

Relying on Article 5 of Protocol No. 7, the applicant complains of the restrictions imposed by the courts on his contact with D. He claims that the impugned restrictions resulted in his being unable to take part in the child ’ s upbringing. The applicant argues that this was contrary to the interests of his child in maintaining regular contact with her father and to have him involved in her upbringing on equal terms with her mother.

QUESTIONS TO THE PARTIES

1. Has the applicant been afforded equality of rights and responsibilities with L., pursuant to Article 5 of Protocol No. 7?

If not, was the difference in treatment between the applicant and L. necessary in the interests of D., as required by the last sentence of Article 5 of Protocol No. 7?

2. Has there been an interference with the applicant ’ s right to respect for his family life, within the meaning of Article 8 § 1 of the Convention, on account of the restrictions imposed by the courts on his contact with D.?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?