FIFTH SECTION

DECISION

Application no. 46427/19 Olena Volodymyrivna VLASENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 7 September 2023 as a Committee composed of:

Carlo Ranzoni , President , Mattias Guyomar, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 46427/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 22 August 2019 by a Ukrainian national, Ms Olena Volodymyrivna Vlasenko, who was born in 1984 and lives in Kyiv (“the applicant”) and who was represented by Mr R. Rozmetov, a lawyer practising in Kyiv;

the decision to give notice to the Ukrainian Government (“the Government”), represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice, of the complaint under Article 8 of the Convention concerning the judicial decision-making process in determining the applicant’s children’s place of residence and to declare the remainder of the application inadmissible;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the allegedly unlawful and arbitrary judicial determination of the place of residence of the applicant’s minor children, who were born in September 2008 (the applicant’s daughter) and February 2011 (her son). The applicant complains mainly of a violation of Article 8 of the Convention.

2 . In particular, by its judgment of 22 August 2016, the Desnyanskyi District Court of Kyiv allowed an application made in 2015 by the children’s father, whom the applicant had divorced in 2013 and from whom she had lived separately with the children since an agreement concluded between the parents on 18 June 2013. The court varied that agreement and ruled that the children should reside with their father, which was in the children’s best interests and “necessary for their overall moral, spiritual, cultural, physical and psychological development”. The judgment was ultimately upheld by decisions of the Kyiv City Court of Appeal of 10 January 2019 and of the Supreme Court of 27 June 2019. The courts relied mainly on Articles 161 and 171 of the Family Code of 2002, according to which they were empowered to determine the place of residence of a child under the age of fourteen years if the parents lived separately and could not agree on it. The legislation also provided that the court could make a determination contrary to the child’s views if the child’s interests so required.

3 . The courts’ decisions were based mainly on the following material. A report by the local child welfare centre dated 29 September 2015 stated that the children’s psychological assessments had revealed “signs of pedagogical neglect” and tension. It also stated that the applicant’s daughter had appeared to be suffering from anxiety and that her son had told the psychologists that he had been beaten all over his body by the applicant on various unspecified occasions. A report by the local guardianship service dated 6 October 2015, based on further psychological assessments of the children and their parents and also on interviews with them, concluded that the children should live with their father. Reports obtained from the children’s school on various dates between 2016 and 2019 noted that the children were intelligent and had been diligent in their studies, which had been duly overseen by their parents, but that they had not taken part in extracurricular activities or school events. The applicant’s daughter said in the court proceedings that she and her brother had had no time for such activities or to visit entertainment centres or cultural establishments because they had had to attend a place of worship every day after school, though not at weekends. Their father said in the court proceedings that after the applicant had converted to a certain religion in 2014 she had started obstructing his communication with the children, had deprived him of any opportunity to have input into their upbringing and, contrary to his wishes, had obliged their children to follow her and her new husband’s religious practices. A medical report of 25 August 2015 stated that the applicant’s son had undergone a circumcision in or about August 2014 without his father’s knowledge or consent. The applicant stated in the court proceedings that she had been making all decisions regarding the children and their upbringing without informing or seeking approval from their father. The court also relied on information regarding the living conditions and income of both parties.

4 . During a hearing in 2019 the appellate court interviewed the children in the presence of a psychologist. They both expressed their wish to stay with the applicant, whereas they were unwilling to reply to any questions regarding their father, although the applicant’s daughter said that she had felt “not bad” when she had been staying with her father. The appellate court noted that the children had responded in a constrained manner and had apparently been “afraid to show their emotions”.

THE COURT’S ASSESSMENT

5. The applicant complained that when determining her children’s place of residence the courts had been biased against her because of her religion and had disregarded the fact that the children’s father had failed to make maintenance payments, that he had submitted forged medical documents regarding their son, and that the official reports regarding her and her children’s lifestyle had been motivated by religious discrimination. In the applicant’s submission, the courts’ decisions were wrong and contrary to the children’s and the applicant’s interests, given that the children had lived with her since their birth, they had expressed the wish to continue living with her and there were no circumstances justifying their separation from her. The applicant relied on Articles 6 and 8 of the Convention.

6. The Government contended that the domestic decision-making process had been fair and thorough. The courts’ decisions had been based on a detailed and comprehensive analysis of the relevant circumstances and had served the applicant’s children’s best interests.

7. The Court considers that the applicant’s complaints fall to be examined solely under Article 8 of the Convention.

8. At the outset, it notes that the domestic court decisions, which amounted to an interference with the applicant’s right to respect for her family life (see Antonyuk v. Russia , no. 47721/10, § 119, 1 August 2013, and G.B. v. Lithuania , no. 36137/13, § 87, 19 January 2016), had a basis in national law (see paragraph 2 above) and pursued the legitimate aim of protecting the rights of others, namely of the applicant’s children and their father.

9. The Court thus needs to ascertain whether the domestic courts, when taking those decisions, conducted an in-depth examination of the entire family situation and a whole series of relevant factors and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern to determine the best solution for the children (see Sahin v. Germany [GC], no. 30943/96, §§ 64-68, ECHR 2003‑VIII; Sommerfeld v. Germany [GC], no. 31871/96, §§ 62-64, ECHR 2003‑VIII (extracts); C. v. Finland , no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania , no. 60092/12, §§ 96-100, 29 April 2014). In this context, regard must be had to the fact that the domestic law does not provide for the possibility of making a shared residence order (see paragraph 2 above and compare Antonyuk , cited above, § 121).

10. In the present case, the domestic courts based their decisions on a comprehensive analysis of all the relevant aspects of the dispute and on evidence which included various reports from psychologists, specialist services and authorities and the children’s school, as well as the arguments of both parties. The applicant was represented by a lawyer and had ample opportunity to put forward all her arguments and evidence. There is no indication of bias or any other serious reason to doubt the reliability of the evidence considered by the courts. Moreover, the Court has already dismissed the applicant’s complaints of discrimination as unfounded at an earlier stage of the proceedings. The domestic courts’ conclusion that the children’s overall development required them to live with their father is not manifestly unreasonable or arbitrary and appears to be based on solid grounds relating mainly to the children’s reported very limited extracurricular activities and the applicant’s obstruction of the children’s father’s involvement in their upbringing (see paragraph 3 above).

11. In so far as the appellate court did not implement the children’s expressed wishes to continue residing with the applicant, the Court reiterates that while children are entitled to be consulted and heard on matters affecting them, their views are not necessarily decisive, and their objections, which must be given due weight, are not necessarily sufficient to override the parents’ interests. The right of a child to express his or her own views should not be interpreted as effectively giving children an unconditional veto, without any other factors being considered or an examination being carried out to determine their best interests (see Zelikha Magomadova v. Russia , no. 58724/14, § 115, 8 October 2019). In the present case, the appellate court provided a clear explanation for the decision, which was based on the children’s behaviour in the proceedings and was obviously linked to their reported psychological unease and tension (see paragraphs 3 and 4 above).

12. The domestic courts, having had the benefit of direct contact with the children and other persons concerned and enjoying a wide margin of appreciation when deciding on parental custody disputes, struck a fair balance between the competing interests in the present case, and the Court has no reason to doubt that their decision determining the children’s place of residence was in the children’s best interests.

13. Finally, it should also be noted that the court decisions in the present case did not severely circumscribe the applicant’s relationship with her children. In particular, they did not limit her access rights or parental authority.

14. In the light of all the material in its possession, the Court finds that the applicant’s complaints do not disclose any appearance of a violation of Article 8 of the Convention.

15. It follows that the application must be rejected as manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 28 September 2023.

Martina Keller Carlo Ranzoni Deputy Registrar President