Recherche de décisions

The father, a British national, and the mother, a Russian national, both lived in Spain. They had a daughter born in 2013 who is a British national by birth. On 27 April 2016, the mother informed the father from the airport that she was taking their daughter to Russia with no intention of returning to Spain. On 26 May 2016 the father contacted the Spanish Central Authority to apply for assistance in securing her return. Through the Spanish Ministry of Justice, the father applied to the Russian Ministry of Education and Science requesting a search to find his daughter and to return her to Spain. In July-August 2016 the father travelled to Russia and made enquiries with the St Petersburg Ombudsman for Children and local childcare authorities. The daughter obtained Russian citizenship on 4 October 2016. Following an investigation by the St Petersburg Bailiffs’ Service, the daughter was located in St Petersburg. 

The parties attended mediation with the help of specialised psychologists but no agreement was reached. 

On 18 August 2016 the father lodged an application with the Dzerzhinskiy District Court of St Petersburg (“the District Court”) under the 1980 Convention. The mother objected claiming that returning to Spain would run contrary to the child’s best interests and place her in an intolerable situation within the meaning of Article 13(1)(b).

On 27 October 2016 the District Court refused the order the return of the child under on Article 13(1)(b) of the Convention. The Court found that, although the child’s removal from Spain to Russia had been wrongful, the fact that the child was very young (an age where children are usually very attached to their mothers) would mean there was a grave risk of harm as the mother had no intention to return to Spain and even if she did would have no place to live and no income.  The District Court further relied on Principle 6 of the United Nations 1959 Declaration of the Rights of the Child, which provided that a child of tender years should not, save in exceptional circumstances, be separated from his or her mother.  Appeals by the father were rejected by a judge of the City Court and a judge of the Supreme Court of the Russian Federation. On 4 April 2017 the Deputy President of the Supreme Court found that there were no grounds to disagree with the decision of the earlier Supreme Court decision not to allow the appeal, which had been taken by a single judge.

The ECrtHR fount there had been a violation of Article 8 of the ECHR. The arguments provided to the District Court fell short of the requirements of Article 13(1)(b).

European Convention on Human Rights (ECHR)

The Court referred to Part VI of the Guide to Good Practice under The Hague Convention - Article 13(1)(b) which states that, in cases where the taking parent unequivocally asserts that they will not return to the State of habitual residence, as a rule, the parent should not - through wrongful removal or retention of the child - be allowed to create a situation that is potentially harmful to the child, and then rely on it to establish the existence of a grave risk to the child. 

Nothing in the present circumstances objectively ruled out the possibility of the mother’s return to Spain with the child. Furthermore, the District Court’s reliance on Principle 6 of the UN 1959 Declaration, despite the fact that the mother had taken the child in disregard of other international instruments such as the ECHR, the UNCRC and the 1980 Convention, was unacceptable and contrary to the spirit of the 1980 Convention. 

The ECrtHR concluded that the interpretation and application of the 1980 Convention by the domestic courts failed to secure the guarantees of Article 8 and Russia had failed to comply with its positive obligations under the ECHR.

Author: Matheus Ferreira Gois Fontes and Victoria Stephens