DISSENTING OPINION OF JUDGE DEDOV

I regret that I cannot agree with the majority in the present case that there has been a violation of Article 8 of the Convention. In my view, the circumstances of the present case are similar to those in the case of X v. Latvia ([GC], no. 27853/09, ECHR 2013) which led, however, to the opposite result in the Court ’ s analysis.

In both cases the mother of an “abducted” child of a very young age (three years old in both cases) produced reports supporting the existence of a “grave risk” which could entail not only “physical or psychological harm” but also “an intolerable situation”. In X v. Latvia the applicant (the mother who “abducted” the child) submitted a psychologist ’ s certificate concluding that there existed a risk of trauma for the child in the event of immediate separation from her mother, bearing in mind the child ’ s age and her close emotional ties to her mother. In the present case the mother provided the court of first instance with a report by a medical psychologist from the St Petersburg Centre for Complex Rehabilitation and Development of the Child dated 8 September 2015, which stated that due to her neurotic state, V. was regularly seeing a child psychologist to alleviate emotional tension and anxiety, as well as a speech therapist. The medical psychologist expressed the opinion that V. should remain with the mother, as she was the only person who could provide the required care, and that a change of place of residence would be harmful to V. ’ s mental development. According to paragraph 58 of the judgment, the report was referred to by the Government in their submissions, but the report was in the case file of the national courts from the very beginning (as is apparent from the date of the report). However, the District Court disregarded the report, saying that “the argument concerning the risk of V. suffering psychological harm in the event of her return to Finland and the allegation that the applicant was suffering from a mental disorder were found unsubstantiated” (see paragraph 33 of the judgment).

In the X v. Latvia judgment the Court reacted by stating that “the refusal to take into account such an allegation, substantiated by the applicant in that it was based on a certificate issued by a professional, the conclusions of which could disclose the possible existence of a grave risk within the meaning of Article 13, first paragraph, (b) of the Hague Convention, was contrary to the requirements of Article 8 of the Convention” (§ 117). The St Petersburg City Court demonstrated the same reaction in the present case by quashing on appeal the decision of the District Court concerning the immediate return of the child. However, the Court criticised the City Court for not providing any details of the child ’ s medical conditions. Yet the details were in the report. Again, paragraphs 100 and 101 of the judgment create the impression that the report was available to the Government alone and not to the national courts and to the parties, which is not true. As is apparent from the case file, the report was submitted to the District Court by the mother. There is no doubt that the adversarial proceedings were impeded and that the applicant did not have the opportunity to exercise his procedural rights. The Appeal Court and the City Court dismissed the father ’ s request for his daughter ’ s return to Finland on numerous grounds based on the documents provided by the parties in the case file, including the young age of the child, her close attachment to her mother, her integration into Russian society, and the necessary measures taken by the mother as her custodian relating to her medical rehabilitation. The Appeal Court referred to the numerous documents contained in the case file.

However, the Court concluded in paragraph 100 of the judgment that the medical documents referred to by the City Court showed that the child suffered from a number of “rather common conditions present in many children, including atopic dermatitis, allergic rhinitis, muscular hypotension, flat feet, iron deficiency and delayed speech, and that the treatment she required involved monitoring by medical specialists, following a special diet, taking medicines, undergoing massages, wearing orthopaedic shoes, swimming, developing fine motor skills and general motor skills, engaging in constructive activity, doing articular gymnastics and undergoing vestibular stimulation”. I am a judge; I am not a doctor in a position to draw conclusions about “rather common medical conditions”. But, as is clear from the case file, the child underwent a complex medical rehabilitation programme under the supervision of medical specialists in Russia to resolve her problems. This was organised by the mother only after the child ’ s removal to Russia. The mother did not have the opportunity to organise the child ’ s rehabilitation in Finland because the child ’ s father would not agree to it. It appears from the decisions of 23 December 2012 of the Vantaa District Court in Finland, available in the case file of both the Court and the Russian courts, that the parents had different views about the medical care that should be provided to the child, and that the father preferred to visit the doctor from time to time “when it was necessary”. As a judge, I can conclude that if the child were returned to the father, the rehabilitation programme would be terminated. I am sure that this is not in the best interests of the child. In this connection I cannot understand the majority ’ s argument in paragraph 101 of the judgment that the national court failed to examine the availability of the equivalent treatment in Finland. No doubt such treatment is available, but the problem is that the father never agreed to make use of that possibility. Moreover, it is confirmed by the case file and not disputed by the parties that the father worked a lot and did not have the opportunity to care for the child himself. That is why he sent the child to his parents and to a kindergarten.

Further, in the same paragraph the Court stressed that no assessment had been made of other objections raised by the mother, which was important for the assessment of the child ’ s best interests, and in particular whether her return to Finland would entail separation from her mother. I am sorry to have to point this out, but the City Court decided in favour of the mother; therefore, it did evaluate all the possible consequences, including the mother ’ s own difficult situation due to her state of health and the lack of possibilities for her to live in Finland independently. By contrast, the father ’ s mobility is much greater, taking into account the fact that it takes just three hours to get to St Petersburg from Helsinki by train.

In this respect I would like to point out that, according to the Court ’ s case-law (see X v. Latvia , cited above, §§ 104-106), the assessment of the child ’ s best interests is considerably limited by the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. The national courts are required to examine only those factors capable of constituting an exception to the child ’ s immediate return. The analysis should cover the entire family situation, the separation from one of the parents and the best interests of the child in general. That is why the Court was not impressed in the present case by the findings of the City Court that the child socialised in Russia and did not speak Finnish, and that it would be difficult for her to integrate into society in Finland. Because, seen from this perspective, even if it would not be in the best interests of the child, she should be returned to her father.

As I already mentioned in my opinion annexed to the judgment in the case of Adžić v. Croatia (no. 22643/14, 12 March 2015), the Hague Convention has systemic deficiencies. It does not take into account the young age of the child and his or her close relationship with the mother after birth, the vulnerability of the mother, who usually does not have any income in a foreign country or any place to live, who is completely dependent on her husband, having only a temporary residence permit, and for whom the only purpose of moving to another country is to enjoy family life with her husband. There are hundreds or even thousands of such clone cases. This case is no exception: the Finnish courts decided that the child should reside with her father and that the mother could visit her two days per week. In all such cases the divorced mothers have no chance to have the place of residence determined in their favour. Therefore, it is obvious that, in the event of the child ’ s return, the mother would be deprived of her own custodial rights.

The Hague Convention provides in its Preamble that the interests of children are of paramount importance in matters relating to their custody. This provision is vague and controversial for several reasons. The Hague Convention focuses on the determination of custody rather than on the best interests of the child. But the best interests of the child are not limited to the issue of custody. The Russian courts discussed the issue of the child ’ s habitual residence and established that she was not integrated into Finnish society, having been placed in a Russian-speaking environment from birth up to the time of her removal to St Petersburg. However, this issue does not make any sense in terms of the Hague Convention because the latter ’ s primary purpose is to protect the right to custody. Finally, the Hague Convention does not regulate situations, such as that in the present case, where the parents were granted joint custody. The Russian courts demonstrated that the quality of care provided by the mother was better, but that is not what the Hague Convention requires.

All these deficiencies, in my view, should lead to a different perception of the interplay between the Convention for the Protection of Human Rights and Fundamental Freedoms and the Hague Convention. Today the Hague Convention predominates entirely over Article 8 of the Convention because no comprehensive analysis of the best interests of the child is possible for either the national courts or for the European Court of Human Rights. The Court, in my humble view, is therefore placed in a position that runs counter to its role to protect vulnerable persons and to fight against discrimination. The whole reasoning in the judgment gives the impression that the Court is analysing the respondent State ’ s compliance with the Hague Convention. Instead, greater emphasis should be placed on the Court ’ s primary role, namely to decide whether the respondent State complied with its positive obligations under Article 8 of the Convention.

I admire the words of the Australian judge (see paragraph 15 of the X v. Latvia judgment) who stated as follows:

“... however , it is not of course for me to say whether the child ’ s presence in Latvia is the consequence of a wrongful removal or retention. With all due respect, it is for the Latvian judge to rule on that question.”

This judge has a better understanding of family life than the whole Hague Convention, which pursues the opposite idea in Article 15:

“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the remov al or retention was wrongful ...”

It is noteworthy that Article 15 of the Hague Convention was not cited (and therefore, not taken into consideration by the Court in dealing with general principles) in the X v. Latvia judgment. By contrast, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as “the Brussels II bis Regulation”) was cited in paragraph 42 of the X v. Latvia judgment and reads, in particular, as follows:

“(13) In the interest of the child, this Regulation allows, by way of exception and under certain conditions, that the court having jurisdiction may transfer a case to a court of another Member State if this court is better placed to hear the case.”

Behind those ideas expressed by the Australian judge and the EC Council there is a legal doctrine which is designed to give more protection to a vulnerable woman and to take into consideration all the conditions in which the child is placed in the woman ’ s home country and the entire family situation. In the present case the applicant (father) sought in the national courts nothing more than the immediate return of the child because his custody rights had been violated. And this is, unfortunately, the only question which was to be decided under the Court ’ s case-law: if there is no grave risk, other difficulties can easily be regarded as tolerable even if they are not in the best interests of the child.

As a result, the Russian authorities were deprived of their margin of appreciation as safeguarded under the Convention. The Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Sahin v. Germany [GC], no. 30943/96, § 65, ECHR 2003 ‑ VIII, and Sommerfeld v. Germany [GC], no. 31871/96, § 63, ECHR 2003 ‑ VIII (extracts).

[1] . Approximately EUR 6,750 at the current official exchange rate.