CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 mars 2021

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text-decoration:underline; color:#000000 }     THIRD SECTION CASE OF THOMPSON v. RUSSIA (Application no. 36048/17)       JUDGMENT   Art 8 • Failure of domestic courts to comply with positive obligations to secure respect for family life through inadequate interpretation and application of Hague Convention, leading to refusal of father’s request to return son after wrongful and arbitrary removal from Spain   STRASBOURG 30 March 2021     FINAL   30/06/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Thompson v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Georgios A. Serghides,   Dmitry Dedov,   María Elósegui,   Darian Pavli,   Anja Seibert-Fohr,   Peeter Roosma, judges, and Milan Blaško, Section Registrar, Having regard to: the application against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr   Edward Michael Thompson (“the first applicant), on behalf of himself and his daughter (“the second applicant”), who holds British and Russian citizenship, on 15 May 2017; the decision to give notice of the application to the Russian Government (“the Government”); the decision to grant the application priority under Rule 41 of the Rules of Court; the parties’ observations; the letter from the British Government informing the Court that they do not wish to make use of their right to intervene in the proceedings (Article   36   § 1 of the Convention); Having deliberated in private on 16 February 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns the decision of the Russian courts to refuse the first applicant’s request for the return of the second applicant to Spain under the Hague Convention on the Civil Aspects of International Child Abduction. THE FACTS 2.     The applicants were born in 1973 and 2013 respectively. The first applicant lives in Seville, Spain. The second applicant lives in St   Petersburg, Russia. The applicants were represented by Mr A.Y. Zuyev and Ms   O.   Khazova, lawyers practising in St   Petersburg and Moscow, respectively. 3.     The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. THE CIRCUMSTANCES OF THE CASE Background information 5.     In 2007 the first applicant married a Russian national, Ms   Yu.T., in St   Petersburg. 6.     In 2009 the couple moved to Seville, Spain, where they settled on a permanent basis. 7.     On 15 July 2013 their daughter, the second applicant, was born. She is a British national by birth. 8.     On 27 April 2016 Yu.T. telephoned the first applicant from Barcelona Airport to inform him that she was leaving for Russia with the second applicant and did not intend to return. 9.     On 4 October 2016 Yu.T. obtained Russian citizenship for the second applicant. 10.     On 25   May 2016 the first applicant, who did not know where the second applicant was resident in Russia, applied to the Spanish Ministry of Justice for assistance in securing her return. 11.     On 21 July 2016 the first applicant applied to the Russian Ministry of Education and Science, through the Spanish Ministry of Justice, with a request to organise a search for the second applicant and return her to Spain, and to facilitate negotiations with Yu.T. 12.     In July-August 2016 the first applicant travelled to Russia. He made enquiries with the St Petersburg Ombudsman for Children and local childcare authorities in order to establish his daughter’s whereabouts. 13.     Following these requests, the Russian Ministry of Education and Science asked the St Petersburg Bailiffs’ Service to conduct an investigation; this established the second applicant’s exact location in St   Petersburg. 14 .     At the request of both the first applicant and Yu.T., officials from the Office of the St Petersburg Ombudsman for Children, including psychologists specialising in conflict management, attempted extrajudicial reconcilement procedures. However, these did not result in a friendly settlement between the parties. In the absence of any documents outlining the circumstances which would argue against contact between the applicants, the Ombudsman indicated that the parties were to take all necessary measures to ensure communication between the father and child. Proceedings in Russia Proceedings for the second applicant’s return to Spain 15.     On 18 August 2016 the first applicant lodged an application with the Dzerzhinskiy District Court of St Petersburg (“the District Court”), seeking the second applicant’s return to Spain on the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), to which both Russia and Spain are parties. 16.     Yu.T. objected to the second applicant’s return to Spain, claiming that it would run contrary to the child’s best interests and place her in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention. 17 .     On 27 October 2016 the District Court found that although the second applicant’s removal from Spain to Russia had been wrongful (Spain had been the second applicant’s habitual residence at the time of removal, the first applicant had actually been exercising custody rights and had not consented to or subsequently accepted the removal), and although less than one year had elapsed from the date of the removal, the return request had to be dismissed in view of Article   13 (b) of the Hague Convention, which provided that the judicial authority of the requested State was not bound to order the return of a child if such an action would place the child in an intolerable situation. In that connection, the District Court noted that the second applicant was three years and three months old at the time of its examination of the return application, an age at which a child was deeply attached to his or her mother, both physiologically and psychologically. It was clear from Yu.T.’s submissions that she had no intention of returning to Spain and was not considering such an option, that she intended to divorce the first applicant and could not therefore stay at his flat, and that she had no residence of her own in Spain 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. In view of these factors, the District Court considered that the child’s return to Spain without Yu.T. would run contrary to her best interests and those of Yu.T. In such circumstances, taking into account the interests of the child, her young age and her need to be cared for by the mother, the District Court concluded that there were no grounds for granting the first applicant’s request for the return of the child to the place of her habitual residence. The District Court took into account the opinion of the Childcare authority of the Municipal Unit “Yekateringofskiy”, which considered that granting the first applicant’s claim would run contrary to the second applicant’s interests and would constitute an intolerable situation in view of her young age. The District Court also took into account the opinion of the St Petersburg Ombudsman for Children, who considered that a decision which might lead to the child’s separation from her mother would not be in her best interests. 18 .     On 21 December 2016 the St Petersburg City Court (“the City Court”) upheld the above judgment on appeal. It found that the second applicant’s retention in Russia by Yu.T. could not be considered unlawful under Article   3 of the Hague Convention in view of the fact that the second applicant had been living in St Petersburg since April 2016, that she had left Spain when she was two years and nine months old, when a child had both a psychological and a physiological need for a mother, and that Yu.T. had no intention of returning to Spain. Yu.T. also planned to divorce the first applicant and to obtain a ruling that the child’s place of residence was with her. The child, who had lived in St Petersburg since April 2016, had also become well integrated into her social and family environment in Russia . Relying on Article 38 of the Constitution of the Russian Federation, Articles   63 § 1 and 65 § 1 of the Family Code of the Russian Federation, Principle 6 of the UN 1959 Declaration of the Rights of the Child and Article   3 § 2 of the United Nations 1989 Convention on the Rights of the Child, the City Court agreed with the first applicant that discrimination against fathers was unacceptable. It noted, however, that the best interests of the child were of the utmost importance in every case, and that the District Court had reached its decision on the basis of that principle. Relying further on Articles 15 § 4, 17   §   1 and 18 of the Russian Constitution, the City Court held that the provisions of Principle 6 of the UN 1959 Declaration of the Rights of the Child were reasonable and justified and could therefore be applied to the dispute between the parties. Therefore, the exceptions to the immediate return of a child under Articles 13 (b) and 20 of the Hague Convention allowed for the conclusion that there were no grounds for granting the first applicant’s claims. The return of the child without the mother was unacceptable and would run contrary to the goal of securing the child’s best interests. The City Court further held that the first applicant’s argument that he had been deprived of the possibility of communicating with his daughter had not been demonstrated, as he had not been deprived of parental authority and Yu.T. had not prevented him from having contact with the child in Russia. The domestic authorities had taken all the necessary measures to provide the first applicant with opportunities to have contact with his daughter and to participate in her upbringing. 19.     On 6   February and 10   March 2017 cassation appeals by the first applicant were rejected by a judge of the City Court and a judge of the Supreme Court of the Russian Federation (“the Supreme Court”), respectively. 20.     On 4 April 2017 the Deputy President of the Supreme Court found that there were no grounds to disagree with the decision of 10 March 2017, which had been taken by a single judge. Divorce, child residence and child maintenance proceedings 21 .     On an unspecified date Yu.T. brought proceedings against the first applicant for divorce, determination of the second applicant’s residence as being with her and child maintenance. She claimed that since 27   April 2016 the first applicant had not shown any interest in his daughter, had been out of touch and had had no contact with the child. 22 .     On 5 October 2017 the Leninskiy District Court of St Petersburg granted Yu.T.’s claims. The court further noted that the first applicant had not been deprived of the opportunity to exercise his parental authority over his daughter or to meet her, and that Yu.T. was not creating any obstacles to such meetings. RELEVANT LEGAL FRAMEWORK International law and practice 1980 Hague Convention on the Civil Aspects of International Child Abduction 23 .     The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) entered into force between Russia and Spain on 1 March 2013. It provides, in so far as relevant, as follows: Article 1 “The objects of the present Convention are – (a)     to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b)     to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. ...” Article 3 “The removal or the retention of a child is to be considered wrongful where – (a)     it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b)     at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Article 4 “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” Article 12 “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. ...” Article 13 “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – ... (b)     there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” Article 20 “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ...” Explanatory Report to the Hague Convention 24 .     The Explanatory Report to the Hague Convention, prepared by Elisa Pérez-Vera and published by The Hague Conference on Private International Law (HCCH) in 1982 (“the Explanatory Report”), provides as follows: (a)    The notion of ‘the best interests of the child’ “24.     ... [the philosophy of the Hague Convention] can be defined as follows: the struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. ... the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child. ... the true victim of the ‘childnapping’ is the child himself, who suffers from the sudden upsetting of his stability, the traumatic loss of contact with the parent who has been in charge of his upbringing, the uncertainty and frustration which come with the necessity to adapt to a strange language, unfamiliar cultural conditions and unknown teachers and relatives. 25.     It is thus legitimate to assert that the two objects of the Convention – the one preventive, the other designed to secure the immediate reintegration of the child into its habitual environment – both correspond to a specific idea of what constitutes the ‘best interests of the child’. However, ... it has to be admitted that the removal of the child can sometimes be justified by objective reasons which have to do either with its person, or with the environment with which it is most closely connected. Therefore, the Convention recognizes the need for certain exceptions to the general obligations assumed by States to secure the prompt return of children who have been unlawfully removed or retained.” (b)    The notion of the child’s ‘habitual residence’ and the ‘wrongfulness of his or her removal or retention’ “64.     Article 3 [of the Hague Convention] as a whole constitutes one of the key provisions of the Convention, since the setting in motion of the Convention’s machinery for the return of the child depends upon its application. In fact, the duty to return a child arises only if its removal or retention is considered wrongful in terms of the Convention. ... 66.     ... the notion of habitual residence [is] a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile. ... 68.     The first source referred to in Article 3 is law, where it is stated that custody ‘may arise ... by operation of law’. That leads us to stress one of the characteristics of this Convention, namely its application to the protection of custody rights which were exercised prior to any decision thereon. This is important, since one cannot forget that, in terms of statistics, the number of cases in which a child is removed prior to a decision on its custody are quite frequent. Moreover, the possibility of the dispossessed parent being able to recover the child in such circumstances, except within the Convention’s framework, is practically non-existent, unless he in his turn resorts to force, a course of action which is always harmful to the child. ... 71.     ... from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention’s true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.” (c)        The exceptions to the principle of the child’s prompt return under Article   13   (b) of the Hague Convention “34.     ... [the exceptions] to the rule concerning the return of the child must be applied only as far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter ... The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them – those of the child’s habitual residence – are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child’s residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of mutual confidence which is its inspiration. ... ...113.     ... the exceptions [in Articles 13 and 20] do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion – and does not impose upon them a duty – to refuse to return a child in certain circumstances. 114.     With regard to Article 13, the introductory part of the first paragraph highlights the fact that the burden of proving the facts stated in sub-paragraphs (a) and (b) is imposed on the person who opposes the return of the child ... ... 116.     The exceptions contained in [Article 13] (b) deal with situations where international child abduction has indeed occurred, but where the return of the child would be contrary to its interests ... Each of the terms used in this provision, is the result of a fragile compromise reached during the deliberations of the Special Commission and has been kept unaltered. Thus it cannot be inferred, a contrario , from the rejection during the Fourteenth Session of proposals favouring the inclusion of an express provision stating that this exception could not be invoked if the return of the child might harm its economic or educational prospects, that the exceptions are to receive a wide interpretation ...” Part VI of the Guide to Good Practice under the Hague Convention – Article 13 (1) (b) of the Hague Convention 25 .     Part VI of the Guide to Good Practice under the Hague Convention, published by the HCCH in 2020, provides as follows: “29.     The grave risk exception is based on “the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation. ... 34.     The term ‘grave’ qualifies the risk and not the harm to the child. It indicates that the risk must be real and reach such a level of seriousness to be characterised as ‘grave’. As for the level of harm, it must amount to an “intolerable situation”, that is, a situation that an individual child should not be expected to tolerate. The relative level of risk necessary to constitute a grave risk may vary, however, depending on the nature and seriousness of the potential harm to the child. 35.     The wording of Article 13(1)(b) also indicates that the exception is “forward ‑ looking” in that it focuses on the circumstances of the child upon return and on whether those circumstances would expose the child to a grave risk. ... 40.     As a first step, the court should consider whether the assertions are of such a nature, and of sufficient detail and substance, that they could constitute a grave risk. Broad or general assertions are very unlikely to be sufficient. 41.     If it proceeds to the second step, the court determines whether it is satisfied that the grave risk exception to the child’s return has been established by examining and evaluating the evidence presented by the person opposing the child’s return / information gathered, and by taking into account the evidence / information pertaining to protective measures available in the State of habitual residence. This means that even where the court determines that there is sufficient evidence or information demonstrating elements of potential harm or of an intolerable situation, it must nevertheless duly consider the circumstances as a whole, including whether adequate measures of protection are available or might need to be put in place to protect the child from the grave risk of such harm or intolerable situation, when evaluating whether the grave risk exception has been established. 42.     Once this evaluation is made: – where the court is not satisfied that the evidence presented / information gathered, including in respect of protective measures, establishes a grave risk, it orders the return of the child; – where the court is satisfied that the evidence presented / information gathered, including in respect of protective measures, establishes a grave risk, it is not bound to order the return of the child, which means that it is within the court’s discretion to order return of the child nonetheless. ... 63.     Assertions of grave risk of psychological harm or of being placed in an intolerable situation resulting from a separation of the child from the taking parent when this parent is unable or unwilling to return are frequently raised in return proceedings in a wide range of circumstances. Judicial decisions from numerous Contracting Parties demonstrate, however, that the courts have only rarely upheld the Article 13(1)(b) exception in cases where the taking parent cannot or will not return with the child to the child’s State of habitual residence. 64.     The primary focus of the grave risk analysis in these instances is the effect on the child of a possible separation in the event of an order for return or of being left without care, and whether the effect meets the high threshold of the grave risk exception, taking into account the availability of protective measures to address the grave risk. The circumstances or reasons for the taking parent’s inability to return to the State of habitual residence of the child are distinct from, although they may form part of, the assessment of the effect on the child of a possible separation. 65.     Where the separation from the taking parent would meet the high threshold of grave risk, the circumstances or reasons for the taking parent’s inability to return to the State of habitual residence of the child may in particular be relevant in determining what protective measures are available to lift the obstacle to the taking parent’s return and address the grave risk. ... v.     Unequivocal refusal to return 72.     In some situations, the taking parent unequivocally asserts that they will not go back to the State of the habitual residence, and that the child’s separation from the taking parent, if returned, is inevitable. In such cases, even though the taking parent’s return with the child would in most cases protect the child from the grave risk, any efforts to introduce measures of protection or arrangements to facilitate the return of the parent may prove to be ineffectual since the court cannot, in general, force the parent to go back. It needs to be emphasised that, as a rule, the parent should not – through the 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. ...” 1959 Declaration of the Rights of the Child 26.     Principle 6 of the 1959 Declaration of the Rights of the Child reads: “The child, for the full and harmonious development of his personality, needs love and understanding. He shall, wherever possible, grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security; a child of tender years shall not, save in exceptional circumstances, be separated from his mother. ...” 1989 Convention on the Rights of the Child 27.     Article 3 of the 1989 Convention on the Rights of the Child reads: “1.     In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2.     States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. ...” 28.     Article 18 reads: “1.     States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. ...” Implementation Handbook for the Convention on the Rights of the Child 29.     Implementation Handbook for the Convention on the Rights of the Child prepared for United Nations International Children’s Emergency Fund (UNICEF) by Rachel Hodgkin and Peter Newell (3rd ed. Geneva, 2007) reads as follows: “The State should be able to demonstrate that the competent authorities are genuinely able to give paramount consideration to the child’s best interests, which presupposes a degree of flexibility in this decision-making. Any inflexible dogma defining “best interests”, for example stating that children ought to be with their fathers or mothers, should be regarded as potentially discriminatory and in breach of the Convention. It is true to say that article 6 of the Declaration of the Rights of the Child, the precursor of the Convention on the Rights of the Child, did make a statement in favour of keeping, save in exceptional circumstances, children of “tender years” with their mothers. However, this bias towards giving mothers custody young children, though common in many countries and an important protection in very patriarchal societies, does not find expression in the Convention.” Domestic law The Constitution of the Russian Federation 30.     The relevant provisions of the Constitution read as follows: Article 15 “4.     The universally recognised norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international agreement shall apply.” Article 17 “1.     The rights and freedoms of human beings and citizens, in conformity with the universally recognised principles and norms of international law, are recognised and guaranteed by the Russian Federation and under the present Constitution ...” Article 18 “1.     Everyone shall be equal before the law and the courts of law. 2.     The State shall guarantee equality of rights and freedoms regardless of sex, race, nationality, language, origin, property and official status, place of residence, religion, convictions, membership of public associations, or any other circumstance. Any restriction on the human rights of citizens on social, racial, national, linguistic or religious grounds is forbidden ...” Article 38 “1.     Maternity and childhood and the family shall be protected by the State. 2.     The care of children and their upbringing shall be both the right and obligation of parents ...” Family Code of the Russian Federation 31.     The Family Code provides that parents enjoy equal rights and discharge equal duties with respect to their children (Article   61   §   1). 32.     Parents are entitled, and have an obligation, to raise and educate their children. Parents are obliged to take care of their children’s health and their physical, psychological and moral development. Parents have a right to take priority over any other person in raising and educating their children (Article   63 § 1). 33 .     The exercise of parental rights must not contravene their children’s interests. Providing for a child’s interests is the principal object of parental care. Parents who exercise parental rights to the detriment of the rights and interests of their children are answerable under procedures established by law (Article 65 § 1). Code of Civil Procedure of the Russian Federation 34.     The procedure for the examination of requests for the return of children who have been unlawfully removed to or retained in the Russian Federation and for securing protection of access rights in respect of such children, in accordance with the international treaties signed by the Russian Federation, is governed by Chapter 22.2 of the Code. 35.     The Code provides that a return application must be submitted to a court by a parent or other person who considers that his or her custody or access rights have been violated, or by a prosecutor. The return application must be submitted to the Dzerzhinskiy District Court of St Petersburg if the child is within the territory of the North-Western Federal Circuit (Article   244.11). 36.     The return request is examined by the court, with the mandatory participation of a prosecutor and the childcare authority, within forty-two days of receipt, which includes the time for preparation of the hearing and for drawing up the judgment (Article 244.15). 37.     A judgment ordering the return of a child who has been unlawfully removed to or retained in Russia must set out the reasons justifying the need to return the child to the State of his or her habitual residence in accordance with the Russian Federation’s international treaties, or the reasons for refusing the request for return in accordance with the Russian Federation’s international treaties (Article 244.16). 38.     An appeal may be lodged against the judgment within ten days. An appeal is examined within one month of receipt by the appellate court (Article   244.17). THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 39.     Under Article 8 of the Convention and Article 14 of the Convention taken in conjunction with Article 5 of Protocol No. 7 to the Convention, the first applicant complained, on his own behalf and that of the second applicant, about the Russian courts’ refusal to grant his application for the second applicant’s return to Spain under the Hague Convention. Articles   8 and 14 of the Convention and Article 5 of Protocol No. 7 to the Convention read as follows: Article 8 “1.     Everyone has the right to respect for his private and family life ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article 14 “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 5 of Protocol No. 7 “Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.” 40.     Being the master of the characterisation to be given in law to the facts of the case, the Court considers it appropriate to analyse the applicants’ complaint from the standpoint of Article 8 of the Convention only. Admissibility 41.     The Government did not dispute that the first applicant had standing to lodge an application on behalf of his daughter. Given that the first applicant has parental authority over the second applicant, and in the absence of any indication that the representation of her rights by the first applicant would not be in her interest, the Court finds that he has standing to act on her behalf (see, most recently, Petrov and X v. Russia , no.   23608/16, §   83, 23   October 2018, with further references). 42.     The Court does not consider that this complaint is manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicants 43.     The first applicant noted at the outset that the Government’s observations were made only in relation to his right to respect for family life under Article   8 of the Convention, whereas the application also concerned his daughter’s rights under that provision. He further submitted that the judgment of 21   December 2016 refusing his application for his daughter’s return to Spain under the Hague Convention amounted to an interference with their rights under Article 8. The first applicant argued that such interference had not been in accordance with the law and had not been necessary in a democratic society within the meaning of Article   8   §   2 of the Convention. The provisions of the Hague Convention as regards the existence of a grave risk under Article 13 (b) of the Hague Convention had been incorrectly interpreted in a broad manner that went far beyond its meaning and the philosophy of the Hague Convention. In the absence of any objective grounds for the best interests of the child, the Russian courts had substituted the interests of the child’s mother in not returning to Spain, and thus failed to strike a fair balance between the interests at stake. In this connection, the Russian authorities relied on Principle   6 of the 1959 Declaration of the Rights of the Child, which stipulates that “a child of tender years shall not, save in exceptional circumstances, be separated from his mother” and had therefore proceeded on the basis of a belief in the supremacy of the mother’s rights in respect of a minor child over those of the father. The applicant submitted that the above provision reflected outdated stereotypes and contradicted the European Convention, the Convention on the Rights of the Child and the Hague Convention. (b)    The Government 44.     The Government submitted that there had been no interference with the first applicant’s right to respect for his family life, since his personal ties with his daughter, the second applicant, had not been severed. He had not been deprived of his parental authority and nothing prevented him from communicating with her (see paragraphs 14 and 21-22 above). If, however, the Court were to find that there had been an interference with the first applicant’s right to respect for his family life, the Government considered that it had been in accordance with the law, proportionate and necessary in a democratic society. 45.     Referring to the domestic and international law cited by the District Court in its judgment of 21 December 2016 refusing the first applicant’s application for the return of the second applicant to Spain (see paragraphs   23 ‑ 33 above) and reiterating the District and the City Courts’ arguments (see paragraphs   17-18 above), the Government submitted that the Russian courts had thoroughly examined the applicants’ family situation and various aspects of a factual, emotional, psychological and financial nature, assessed the corresponding interests of all the individuals involved and reached a decision reflecting the best interests of the child. The decision-making process had been fair and ensured due respect for the interests protected by Article 8 of the Convention. Throughout the proceedings the first applicant had been represented by professional lawyers, which ensured their adversarial nature and respect of the principle of equality of arms. He had been able to adduce evidence in order to challenge Yu.T.’s arguments as to the existence of circumstances constituting an exception to the second applicant’s immediate return in application of Articles   13   (b) and 20 of the Hague Convention. However, this could not be viewed as shifting to him the burden of proof regarding the circumstances precluding the child’s return. The domestic courts’ decisions had thus been based on a widely accepted practice of application of the Hague Convention, other international acts and domestic law, and were compatible with Article 8   §   2 of the Convention. The Court’s assessment (a)    General principles 46.     In Neulinger and Shuruk v. Switzerland ([GC], no.   41615/07, §§   131 ‑ 40, ECHR 2010) and X v. Latvia ([GC], no.   27853/09, §§   92-108, ECHR 2013) the Court set out a number of principles which have emerged from its case-law on the issue of the international abduction of children, as follows. 47.     In the area of international child abduction the obligations imposed by Article 8 on the Contracting States must be interpreted in the light of the requirements of the Hague Convention and those of the Convention on the Rights of the Child of 20 November 1989, as well as the relevant rules and principles of international law applicable in relations between the Contracting Parties. 48.     The decisive issue is whether the fair balance that must exist between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters, taking into account, however, that the best interests of the child must be of primary consideration and that the objectives of prevention of unlawful removal and immediate return correspond to a specific conception of “the best interests of the child”. 49.     There is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests must be paramount. The same philosophy is inherent in the Hague Convention, which associates this interest with restoration of the status quo by means of a decision ordering the child’s immediate return to his or her country of habitual residence in the event of unlawful abduction, while taking account of the fact that non-return may sometimes prove justified for objective reasons that correspond to the child’s interests, thus explaining the existence of exceptions, specifically in the event of a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13   (b)). 50.     The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be mainta