ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Failure to take all necessary measures to enable father and daughter to maintain and develop family life with each other in international abduction case: violation
Facts – The first applicant, a Czech national, married a Russian national in 2003. The couple settled in the Czech Republic and in 2005 had a daughter, the second applicant. Two years later the wife started divorce proceedings and both she and the first applicant sought custody of the child. In 2008, while the proceedings were still pending, the wife took the child to Russia without the first applicant’s consent. Shortly afterwards a Czech city court granted the first applicant temporary custody, but his request to the Russian courts to recognise and enforce the Czech court’s decision was rejected. His further application to the Russian courts for access was also discontinued. In 2011 a Czech district court issued a final judgment granting the first applicant custody. Shortly afterwards the applicants lost all contact with each other and at the time of the European Court’s judgment the first applicant was still unaware of his daughter’s whereabouts. In 2012 the first applicant’s request to a Russian court to recognise and enforce the final custody judgment was dismissed.
Law – Article 8: Since the second applicant had been ‘wrongfully’ removed and retained in Russia by her mother, Article 8 of the Convention required the Russian authorities to ‘take action’ and assist the applicant in being reunited with his child.
(a) Lack of necessary legal framework in Russia for securing prompt response to international child abduction between removal of the child and termination of the child-custody proceedings – The Czech court’s decision granting temporary custody to the first applicant pending the outcome of the divorce proceedings had not been enforceable in Russia because of its interim nature. The first applicant had also been prevented from having the contact arrangements with his daughter formally determined by the Russian courts until the end of the proceedings before the Czech court. In the absence of an agreement between the parents, the regulatory legal framework in Russia at the material time had thus not provided practical and effective protection of the first applicant’s interests in maintaining and developing family life with his daughter, with irremediable consequences on their relations. By failing to put in place the necessary legal framework to secure a prompt response to international child abduction at the time of the events in question, the respondent State had failed to comply with its positive obligation under Article 8 of the Convention.
Conclusion: violation (unanimously).
(b) Refusal by the Russian court to recognise and enforce the final custody order – The Court reiterated that the national authorities’ duty to take measures to facilitate reunion was not absolute. A change in relevant circumstances, in so far as it had not been caused by the State, could exceptionally justify the non-enforcement of a final child-custody order. The second applicant had lived in the Czech Republic with both her parents for three years until her mother took her to Russia. Since her departure from the Czech Republic the child had had very limited contact with her father until they eventually lost all contact in 2011. Since 2008 she had settled in her new environment in Russia and her return to her father’s care would have run contrary to her best interests, as the first applicant also admitted. Therefore, the Russian court’s decision not to recognise and enforce the Czech court’s judgment of 2011 had not amounted to a violation of Article 8.
Conclusion: no violation (unanimously).
(c) Other measures taken by the Russian authorities after June 2011 – Since 2011 the mother had been in hiding with the second applicant. The Russian authorities had thus been required to establish the mother’s whereabouts if the first applicant was to maintain family ties with his daughter, but the police had been slow to act and had not made full inquiries. The first applicant’s attempts to involve other domestic authorities in assisting him to establish contact with his daughter had been thwarted by the impossibility of locating her. The Russian authorities had thus failed to take all the measures that could have been reasonably expected of them to enable the applicants to maintain and develop family life with each other.
Conclusion: violation (unanimously).
Article 41: EUR 12,500 to the first applicant in respect of non-pecuniary damage; finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage sustained by the second applicant.
(See also Maumousseau and Washington v. France, 39388/05, 6 December 2007, Information Note 103; Hokkanen v. Finland, 19823/92, 23 September 1994; Kosmopoulou v. Greece, 60457/00, 5 February 2004, Information Note 61; X v. Latvia [GC], 27853/09, 26 November 2013, Information Note 168; and see generally the Factsheet on International child abductions)
22909/10 – Chamber Judgment, [2014] ECHR 1374, 22909/10 – Legal Summary, [2014] ECHR 1443
Bailii, Bailii LS
European Convention on Human Rights 8-1
Human Rights, Family
Updated: 24 December 2021; Ref: scu.540020