CONCURRING OPINION OF JUDGE SCHEMBRI ORLAND

1. I was among the majority who voted to find a violation of Article 8 in respect of the applicants in this case. As one would expect, the case at hand, like others which have been addressed by this Court, raises an issue concerning the interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), and Article 8 of the European Convention on Human Rights (ECHR). However, it is my opinion that the conclusion of a violation reached by the Court is fully in keeping with the spirit and letter of the Hague Convention and with the need to ensure the child’s best interests as part of the fair balance assessment required by Article 8 of the ECHR.

2. This case gave the Court the opportunity to examine the obligations of a member State under Article 8 of the ECHR in the context of the Hague Convention. In the particular circumstances of this case, the child was to be returned to a zone of military conflict in eastern Ukraine (Donetsk). Against such a background, the best interests of the child must be of primary consideration, and the Hague Convention objectives of prevention and immediate return correspond to a specific conception of “the best interests of the child”.

3. As in all Hague child abduction cases, there is a presumption that a speedy return to the country of habitual residence is in the child’s best interests, unless the exceptions set out in Articles 12, 13 and 20 of the Hague Convention subsist. The Hague Convention thus contemplates several situations where domestic authorities may refrain from ordering the return of the child. One such situation is where 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 (Article 13(b)).

4. The facts of the case are relatively simple and are set out in the judgment in a straightforward manner. What sets this case apart from others which have been brought before our Court in such matters is the circumstance of military conflict, which at the relevant time (2016 [1] ) was prevalent in eastern Ukraine, a region which included Donetsk, the child’s place of habitual residence prior to her abduction. The situation revealed by the international reports and recommendations is not restricted to a few sporadic sorties, isolated incidents, or even to the targeting solely of military and/or non-civilian targets, but concerns “serious human rights violations and abuses in eastern Ukraine of which Donetsk was part, including thousands of conflict ‑ related civilian casualties and deaths counting both adults and children, the vast majority of which had been caused by shelling, including from artillery and large-caliber mortars” (see paragraph 98, referencing paragraphs 48-52, of the judgment).

5. The question therefore presented itself as follows: was the return order made by the Russian domestic courts in applying and interpreting the Hague Convention in breach of Article 8 of the ECHR given that the return would effectively place the child in a zone of military conflict? Examined through the ECHR lens, this question is one of judicial review whereby the court seised of the return procedures must be deemed to have genuinely taken into account the factors capable of constituting an exception to the child’s immediate return in application of Articles 12, 13 and 20 of the said Convention. The returning court must then also have taken a decision that is sufficiently reasoned on this point, in order to enable the Court to ascertain that those questions have been effectively examined. Furthermore, a balancing exercise must have been carried out regarding the separate interests of the father, mother and child, ensuring that the best interests of the child, to ensure self-development in a sound environment, are evaluated as part of this balancing exercise [2] .

6. There is no doubt that the mother wrongfully abducted her daughter who, at the time, was 10 years old. There is also no doubt that two years had elapsed since the conflict had commenced and, although she unsuccessfully attempted to reverse the original custody order in 2014, she waited a further 18 months before unlawfully removing the child without the father’s consent to Russia.

7. No further significance should be attached to this apparent (unexplained) inaction on the part of the first applicant other than an evidential one, being part of the evidence which should be evaluated in the examination of the grave risk plea. However, such inaction cannot, and should not of itself, be the decisive proof which absolves the returning court of its obligation to ascertain the seriousness of the risk posed to the child.

8. Indeed, whilst the procedural rules on the burden of proof are relevant, the primacy of the child’s best interests imposes on the reviewing court a greater responsibility to secure guarantees for the child’s protection in situations where the gravity of the risk is self-evident due to regional conflict. The child cannot speak in his/her own defence, and the often conflicting interests of both parents should not make them the ultimate interlocutors as regards the child’s interests. The court, on the other hand, is responsible as parens patriae to act for the child, and to do so diligently to secure the child’s protection.

9. This is not in conflict with the principles and aims of the Hague Convention. Perhaps it can be argued that the military situation in Donetsk was sufficiently considered by the domestic courts when they determined that “the occasional military actions in various settlements in Ukraine did not as such constitute an exception relating to a very serious risk of harm to the child. That risk was not individual to the child, but rather a general consequence of living in a conflict zone” [3] . The Regional Court, on appeal, upheld the judgment on the basis of a lack of admissible and relevant evidence that the child’s life and health would be put at risk.

10. It is true that the domestic courts are better placed to appraise the evidence in the case before them. However, this case does not concern the evaluation of witness testimony, or the credibility of the facts. Rather the issue is one capable of objective evaluation. The conclusion reached by the domestic courts is therefore quite surprising given the international reports, quoted in the judgment, which depict a very precarious situation of high civilian casualties, uncertainty and human rights violations. Thus shown, a serious risk of harm to a general population in such a zone of regional military conflict should constitute clear and convincing evidence of the risk to the child.

11. The oft quoted US appellate judgment in Friedrich [4] comes to mind, where it was held inter alia that a grave risk could only exist when the return would put the child in imminent danger prior to the resolution of a custody dispute. The relevance of the judgment lies in the pronouncement of the Friedrich court, which specifically listed “a zone of war, famine or disease” as conditions that would constitute a grave risk of harm. This dictum has been widely referenced. The refusal to return a child to a war zone is, and should be, perfectly compatible with the Hague Convention principles as it falls squarely within the exception of Article 13 (b) even in a narrow construction.

12. In a sense, it could be argued that the father implicitly acknowledged that risk when he informed the court he was willing to move away from the conflict zone [5] . Yet the domestic courts did not make any further demands for specific guarantees of the child’s safety, for example, by issuing a specific order for her relocation and monitoring of the same, not even by engaging the intervention of the competent central authority to ensure the security of the child on her return to a safe haven. The ex parte evidence produced by the father could not, on its own, have been sufficient to dispel the doubts which even a superficial objective examination of the situation would have raised.

13. The ECHR case-law requires that we must ascertain whether the first applicant’s objections to her daughter’s return were genuinely taken into account by the domestic courts, whether the decisions on this point were sufficiently reasoned, and whether the courts satisfied themselves that adequate safeguards and tangible protection measures were available in the country of return (see Andersena v. Latvia , no. 79441/17, § 118, 19 September 2019). It is the finding of the Court that the domestic courts failed to meet this threshold by failing to weigh in the balance the public reports of human rights violations, conflict and abuses in the Donetsk region. These facts were well known at the time and fall within the authority of domestic courts, which can take judicial cognisance of them ex proprio motu.

14. This is compatible with a Hague-friendly approach. Since 1980, the legal landscape has changed with the United Nations Convention on the Rights of the Child 1989 (UNCRC), specifically Article 3 of that Convention, which talks of the paramount interests of the child (see Article 3 § 1 UNCRC [6] ) The challenge is to interpret the conventions harmoniously and to achieve a balance which would not relegate the Hague Convention to a dead letter. I do not believe this judgment will present such a peril for the Hague Convention in view of the very specific factual background to the case.

15. The very suggestion of ordering the return of a child to a war zone, or zone of military conflict, is an odious one, and should awaken even the most detached of observers to the immediacy of ensuring a secure environment for that child. It is to be recalled that Article 13 (b) of the Hague Convention lists a third exception to the child’s prompt return, where the grave risk would “otherwise place the child in an intolerable situation” . I would say without hesitation that living in a military conflict zone would qualify for the application of this third exception.

16. I fully endorse the Court’s findings and conclusions in the judgment. The ostrich-like approach of the Russian domestic courts to the events in eastern Ukraine, constituting a zone of military conflict with serious human rights violations and indiscriminate risks for civilians, represents a failing on their part to apply the standards and guarantees imposed by both the Hague Convention and the ECHR, for the protection of the best interests of the child – nay, for the very safety of the child.