Last Updated on April 24, 2019 by LawEuro
Information Note on the Court’s case-law 227
March 2019
Bogonosovy v. Russia – 38201/16
Judgment 5.3.2019 [Section III]
Article 8
Article 8-1
Respect for family life
Applicant excluded from his granddaughter’s life after her adoption: violation
Facts – The applicant complained of a violation of his right to maintain family ties with his granddaughter following her adoption.
Law – Article 8: It had not been disputed that there was family life between the applicant and his granddaughter. She had lived with him for five years and he had been her guardian.
The applicant had not made an application for post adoption contact with his granddaughter before the first instance court examining the adoption case. That issue had not therefore been examined and no reference to post-adoption contact between them had been made in the judgment. The applicant had been aware of the adoption proceedings, having consented to the adoption in writing and having expressed the wish for the case to be heard in his absence. Nothing therefore suggested that he had been prevented from or unable to apply to the court for continued contact with his granddaughter after her adoption or that the adoption judgment had been unlawful.
Subsequently, when the consequences of the adoption proceedings entailing the permanent severance of family ties between the applicant and his granddaughter became clear to him, he had pursued two sets of proceedings seeking to restore his contact with her. In the first of those proceedings, he had succeeded in having restored the procedural time-limit for lodging his appeal against the adoption judgment and challenged that judgment on account of, in particular, the loss of contact with his granddaughter following her adoption. The City Court had, however, dismissed his appeal without discussing the question of whether it was appropriate for him to have contact with his granddaughter, at the same time stating that it remained open to him to apply to a court for the determination of his contact with his granddaughter in accordance with Article 67 of the Family Code.
However, when the applicant had brought proceedings under Article 67, the courts had discontinued the proceedings, holding that, since the adoption judgment had not contained an indication as to the continuation of family ties between the applicant and his granddaughter following the adoption, the former did not have a right to apply for contact.
A question therefore arose as to whether the domestic law governing the issue of post-adoption contact between the adopted child and his or her relatives was clear enough and foreseeable in its application in so far as it did not expressly provide that the rights of relatives of the adopted child would be transferred to the adoptive parents or otherwise ceased on adoption, unless an application by relatives had been made in the course of the adoption proceedings for continued relations, including contact, and specific provision made for them to this effect in the adoption judgment.
Presuming, however, that that was implied in the relevant provisions of the domestic law, once the applicant’s request for restoration of the procedural time-limit for lodging his appeal against the adoption judgment had been granted, it was then for the City Court dealing with his appeal to examine the issue of whether he should have post-adoption contact with his granddaughter, in particular by deciding whether that was in the child’s interests, and if so, to include the relevant provision in the operative part of the adoption judgment. Instead the City Court had upheld the adoption judgment and had led the applicant on to believe that it was open to him to have the issue of his post-adoption contact with his granddaughter settled after the termination of the adoption proceedings pursuant to the procedure provided by Article 67 of the Family Code. In reality, no such remedy was available to him because, as domestic courts had found in those proceedings, in the absence of a specific provision as to continued post-contact in the adoption judgment, no application for contact could be made.
As a result of the way the domestic courts had interpreted and applied the relevant provisions of domestic law in the re-opened adoption proceedings, the applicant had been entirely and automatically excluded from his granddaughter’s life after her adoption.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
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