STRASBOURG, France (CN) — Now 15 years old, a young girl told Russian child welfare authorities that she was afraid of “gunfire and exploding bombs” if she was sent back home to Ukraine, but a Russian court nevertheless ordered her to be returned to her father’s custody in a war-torn region of the country.
The European Court of Human Rights ruled Tuesday that the Russian Federation violated the teenager’s right to family life by finding she should be returned to her father after her mother brought her to Russia following the outbreak of hostilities in eastern Ukraine.
“In reaching the conclusion as to the absence of 'a very serious risk of harm to the child', the district court did not take into account or rely on any government reports, official documents from international organizations closely following the situation in Donetsk and/or travel advice detailing the security situation there at the material time,” the Strasbourg-based court wrote.
The mother, identified in court documents as Y.S., was living in Donetsk, Ukraine, when fighting broke out in 2014 following the forced removal of former Ukrainian President Viktor Yanukovych. The city of nearly a million people ceded from Ukraine and formed the Donetsk People's Republic. Along with two other regions of Ukraine, they created their own quasi-states backed by Russia.
Y.S., a Ukrainian national, married her husband, A.S., in 2001 and the couple had their daughter in 2006. The marriage broke down and Y.S. moved to Nakhodka, Russia, in 2011. The couple's divorce was finalized in 2012 and they shared custody of their daughter.
The mother wanted to bring her daughter to Russia but was blocked by her ex-husband, who refused to sign off on the move. Following the outbreak of hostilities in the region, Y.S. tried again to bring her daughter to live with her in Russia, but A.S. again refused to allow it. In 2016, she traveled to Donetsk and brought her daughter back with her without her ex-husband's permission, applying for Russian citizenship for both of them.
A.S. demanded his daughter be returned and filed a complaint with a district court in Khabarovsk, Russia, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. That court sided with the father and ordered the girl to be returned to Ukraine, finding the armed conflict in Ukraine was not "in itself an exception relating to a very serious risk of damage to the child.”
The mother protested, ultimately bringing a case before the European Court of Human Rights after she had exhausted all of her legal options in Russia. The ECHR was created in 1959 by the European Convention on Human Rights to safeguard the political and civil rights of Europeans.
In Tuesday's ruling, the seven-judge panel wrote of the dangers in the region where the father was living.
“The court cannot but observe...that the situation in Donetsk could be easily ascertained by a wide number of sources, which unanimously attested to serious human rights violations and abuses in eastern Ukraine of which Donetsk was part, including thousands of conflict‑related civilian casualties and deaths counting both adults and children, the vast majority of which had been caused by shelling, including from artillery and large-caliber mortars,” the ruling states.
Commonly referred to as The Hague Convention, the multilateral treaty requires that children be returned to the country where they were a "habitual resident" for the resolution of custody disputes. However, there is an exception for when “there is a grave risk that his or her return would expose the child to physical or psychological harm.” The rights court’s Third Section concluded the Russian court hadn’t seriously considered this exception.
In ruling for the mother and daughter, the court also awarded the pair 4,150 euros ($5,000) in costs and expenses.
Ukraine and Russia have been engaged in a series of legal battles over the conflict in the eastern part of Ukraine. Hearings were held in 2019 before the International Court of Justice, the United Nations' top court, in which Ukraine claimed that Moscow had illegally funded the separatists in the region. Ukraine and its citizens have multiple pending cases before the European Court of Human Rights, including a case over whether the annexation of Crimea was legal.
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