DISSENTING OPINION OF JUDGE DEDOV

1 . I regret that – as in other previous similar “abduction” cases – I cannot agree with the majority in the present case (see my recent dissenting opinion in Vladimir Ushakov v. Russia , no. 15122/17, 18 June 2019, with further references). I still believe that the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is not sensitive to ( i ) the young age of certain minors; (ii) their natural emotional attachment to their mothers; (iii) the vulnerable position of mothers residing in a foreign country; (4) the limited possibility for foreign mothers to be granted a residence order so to live together with their children after a divorce. This discriminatory practice against women continues, and the victims are left without the protection of human-rights mechanisms.

2 . The women concerned could be safe only if they are integrated into the foreign society in question, if they have become independent and give birth only once they have attained a strong position in the family. However, such confident women do not need the Hague Convention. Miraculously, the Hague Convention was adopted when States started to open their borders and many women from developing countries (mostly from the former communist regimes) followed their husbands to find a better life abroad. They were not familiar with the principles of western feminism and relied completely on their husbands, believing that their major role was to become a mother and to create a united family. They were disappointed. I have never seen a former husband voluntarily propose shared custody of the children and the provision of financial support after family life is ruined. This is a typical story for many women who then become very vulnerable, and the Hague Convention plays against them.

3 . Moreover, I believe that the Hague Convention and the Strasbourg Convention have never been in harmony with each other. In determining child custody after a divorce (this issue inevitably arises once the child must be returned to the country of origin) the Hague Convention sets out a much higher threshold than the European Convention on Human Rights. This is evident from the present judgment. In paragraph 65 the Court explains that while the provision of Article 13(b) of the Hague Convention “is not restrictive as to the exact nature of the ‘ grave risk ’ – which could entail not only ‘ physical or psychological harm ’ but also ‘ an intolerable situation ’ – it cannot be read, in the light of Article 8 of the Convention, as including all the inconveniences necessarily linked to the experience of return. The exception provided for in Article 13(b) concerns only situations which go beyond what the child might reasonably be expected to bear ... ” Obviously, the Hague Convention is blind as to what will happen after the child has been returned, since the best-interests-of-the-child concept is not within the scope of the Hague Convention: the child must simply be returned promptly to the father, who has the right of custody under Article 3; no exceptions are allowed, save in the case of domestic violence.

4 . In contrast, the Convention is based on completely different principles, as is clear from the judgment in the case of Leonov v. Russia ( no. 77180/11, 10 April 2018):

“64 . In determining whether the refusal of custody or access was justified under Article 8 § 2 of the Convention, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v. Germany [GC], no. 30943/96 , § 64, ECHR 2003 ‑ VIII; Sommerfeld v. Germany [GC], no. 31871/96 , § 62, ECHR 2003 ‑ VIII (extracts); C. v. Finland , no. 18249/02 , § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12 , § 96, 29 April 2014). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07 , § 139, ECHR 2010, and Antonyuk v. Russia , no. 47721/10 , § 134, 1 August 2013).

65. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, 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 , cited above, § 65, and Sommerfeld , cited above, § 63).

66 . Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (see Sahin , cited above, § 66, and Sommerfeld , cited above, § 64)”.

5 . In the same vein as the Hague Convention, in paragraph 71 of the present judgment the Court criticises the national courts ’ reliance on Principle 6 of the United Nations 1959 Declaration of the Rights of the Child, which provides that a child of tender years should not be separated from the mother. In the Court ’ s view, since the mother “wrongfully removed” the child, their separation is inevitable, regardless of the child ’ s young age. Obviously, the Hague Convention operates here in favour of the father, without taking into account the child ’ s best interests and completely ignoring the vulnerable situation of the mother, who would be separated from her child and would lose her custodial rights immediately after the child ’ s return. In my view, with a view to ensuring effective rather than merely theoretical equality between the parents, the international community should amend the Hague Convention so as to provide protective measures for women after a child has been returned. In so far as possible, shared custody should be guaranteed for both parents and the mother should receive financial support. The Court ’ s case-law regarding child custody should also be developed to take account of the vulnerable position of mothers in this situation. The national authorities in the present case were mindful of the mother ’ s situation. However, the Hague Convention, running counter to the European Convention on Human Rights, does not allow for the protection of vulnerable persons.

6 . I wonder when European civilisation lost its sense of humanity? The concept of human rights cannot be completely rational and bereft of any moral element. Antoine de Saint-Exupery ’ s phrase “ Tu deviens responsable pour toujours de ce que tu as apprivoisé ” corresponds to the responsibility of a man who attracts a woman and invites her to a different world, and who should therefore bear responsibility for the well-being of his wife and their child. Therefore, certain guarantees should be institutionalised and provided to vulnerable persons before their return.