Abduction – Child wrongfully retained in Georgia by father – Hague Convention application for a return order refused by domestic courts – Whether there had been a breach of Art 8, European Convention
The ECHR found that there had been a breach of Art 8 of the European Convention by the Georgian courts in proceedings for a return order of the child under the Hague Convention.
The Ukrainian mother and Ukrainian-Georgian father initially lived in Ukraine where their two children were born. The father moved to Russia prior to the birth of the second child but continued to visit the family. Unfortunately the younger child died when she fell from an open window and the older child witnessed the accident.
In 2010 the mother gave permission to the father to take the child to Georgia on holiday but he failed to return him. Instead the father travelled to Russia leaving the child in the care of an uncle and grandfather. The child was subsequently diagnosed with an adjustment order and commenced out patient treatment.
In proceedings in Ukraine the court ordered the child's return but the father was apparently not informed of the proceedings and, therefore, did not appeal the decision. The mother initiated Hague Convention proceedings. A social work report on the child found that he was being appropriately cared for and that he did not wish to return to Ukraine. A psychologist report showed that he had mixed feelings towards his mother and that he was suffering emotionally due to past trauma and his current complicated situation. The mother's application was refused and the court held that a return order would expose the child to psychological risk.
The order was overturned on appeal and a return order was granted. The Supreme Court allowed the father's appeal without holding an oral hearing. The mother applied to the European Court of Human Rights alleging a breach of Art 8 of the European Convention.
The ECHR considered that the mother had suffered a disproportionate interference with her right to respect for her family life, in that the decision-making process under the Hague Convention before the domestic courts did not meet the procedural and positive requirements inherent in Art 8 of the European Convention. She was awarded €9,100.
Although the court found that the child would be at risk of harm if he was returned to Ukraine it failed to explain what the risks were exactly. There was no evidence that a return to Ukraine would exacerbate the boy's psychological trauma and there was no analysis of the implications of a return. Although it was found that the boy was settled living with his uncle the aim of the Hague Convention was to prevent the abducting parent from succeeding in obtaining legal recognition, by the passage of time, of a de facto situation that he or she had unilaterally created. Hence, the abducting parent could not benefit from his or her own wrongdoing.
The domestic courts had ignored the fact that the child was living with the uncle and grandfather who did not have rights of custody while the father lived in Russia. Such a situation per se raised questions of compatibility with the principle of the best interests of the child.
The overall length of the proceedings was 90 weeks and raised questions of the State's compliance with the duty to act expeditiously in Hague Convention proceedings.
FOURTH SECTION CASE OF G.S. v. GEORGIA (Application no. 2361/13) STRASBOURG 21 July 2015 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of G.S. v. Georgia
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Guido Raimondi, President Päivi Hirvelä, George Nicolaou, Ledi Bianku, Nona Tsotsoria, Paul Mahoney, Faris Vehabović judges and Fatoş Aracı, Deputy Section Registrar
Having deliberated in private on 30 June 2015 Delivers the following judgment, which was adopted on that date. JUDGMENT