CASE OF ABALYMOV v. RUSSIA (European Court of Human Rights)

THIRD SECTION
CASE OF ABALYMOV v. RUSSIA
(Application no. 17142/18)
JUDGMENT
STRASBOURG
13 October 2020

This judgment is final but it may be subject to editorial revision.

In the case of Abalymov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Georgios A. Serghides, President,
Erik Wennerström,
Lorraine Schembri Orland, judges,
and Olga Chernishova, Deputy Section Registrar,

Having deliberated in private on 22 September 2020,

Delivers the following judgment, which was adopted on that date:

procedure

1. The case originated in an application (no. 17142/18) lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vitaliy Vladimirovich Abalymov (“the applicant”), on 27 March 2018.

2. The applicant was represented by Mr E. Tokar, a lawyer practising in Samara. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3. On 29 August 2018 notice of the complaints under Articles 8 and 14 was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. On the same date the President decided to grant the case priority under Rule 41 of the Rules of Court.

4. In addition to written observations by the Government and the applicant, third-party comments were received from the applicant’s former wife Z., who had been granted leave to intervene by the President of the Section;

5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

INTRODUCTION

6. The case concerns a child-residence dispute.

THE FACTS

7. The applicant was born in 1972 and lives in Samara.

8. The facts of the case, as submitted by the parties, may be summarised as follows.

9. In 2002 the applicant’s wife, Z., gave birth to a daughter, K. In 2015 she gave birth to twins: C., a girl, and S., a boy. The family lived in the town of Samara where the children’s paternal and maternal grandparents and other close relatives also lived. While the parents were at work the children were taken care of by two nannies.

10. In August 2016 Z. left the family home and moved to the town of Kaluga, about 1,200 km by road away from Samara. The children remained to live with the applicant.

11. On 27 March 2017 Z. filed for divorce and asked for a residence order under which the children would live with her. The applicant lodged a counterclaim, asking for a residence order under which the children would live with him.

12. On 4 May 2017 Z. took C. and S. together with her to Kaluga while the applicant was at work. K. continued living with the applicant.

13. During a hearing before the Sovetskiy District Court of Samara the judge questioned K., who stated that she wished to live with her father and that she wanted C. and S., with whom she was very close, to live with them. She further stated that after her mother’s sudden departure in August 2016 she had telephoned the children once a week and had come to visit them once a month for two or three days each time. The children had visited her in Kaluga twice: once for three days and once for four days. It was her father and the nannies who had been taking everyday care of the children.

14. The judges also questioned Z.’s father and her friend who both stated that Z. had left the applicant because he did not earn enough money. The two nannies stated to the judge that the children were more attached to their father than to their mother. Z. had always worked late hours and had had frequent business trips. By contrast, the applicant had come home at about 3 p.m. to take care of the children. Lastly, the mother of K.’s friend stated that she had seen K. crying because she had felt that her mother had abandoned her and because she had missed her brother and sister.

15. On 19 May 2017 K. was examined by a psychologist who found that she had a strong emotional bond with her father; her emotional bond with her mother was weaker. She wished to live with her father.

16. On 29 May 2017 court-appointed expert psychologists found that S. did not have a strong attachment to any of his parents. The most dear and significant persons for him were his elder sister and his nanny from Samara. C. suffered from her mother’s distant attitude to her and felt a need for her father’s care. When asked about her parents, she talked about her father without mentioning her mother. She also adored her elder sister. K. had a strong negative attitude towards her mother: she felt betrayed and therefore distrusted her. She had a strong attachment to her father and her younger brother and sister. The experts also found that to reduce the psychological stress experienced by the children due to their parents’ separation, it was necessary to maintain the environment to which they were used.

17. The childcare authorities of Samara recommended that the children should live with their father, taking into account K.’s wishes, the very close personal bond between the three children and the fact that they had always lived in Samara and it was important not to disturb their established lifestyle.

18. On 6 July 2017 the Sovetskiy District Court granted the applicant’s application for a residence order in his favour and dismissed a similar application by Z. It noted that both parents had high incomes and comfortable living conditions, but Z. had no real estate. It also noted that Z.’s work required her to take frequent and long business trips. After the parents’ separation, the three children had lived with their father, who had taken everyday care of them, assisted by two nannies who had permanently worked for the family from the children’s birth. The children’s grandparents and all other close relatives lived in Samara. K. attended school there and it followed from a reference note submitted by the school that it was her father who attended the school meetings and helped K. with her homework. The court also referred to the reports by psychological experts and the childcare authorities of Samara, and to K.’s wish to live with her father. The court found that it would be against the children’s best interests to separate them or to take them away from their established home in Samara. The court also held that there was no evidence of a risk that living with their father might cause the children any physical or psychological harm or undermine their moral development. The fact that S. and C. had started to attend a preschool facility after their removal to Kaluga was insufficient to outweigh the other considerations relating to the best interests of all three children. The opinion of the childcare authorities of Kaluga submitted by Z. was inadmissible in evidence because they had no competence to give an opinion in the present case.

19. According to the applicant, he came to Kaluga many times but Z. prevented him from seeing the children and refused to comply with the residence order in his favour. On 31 August 2017 the applicant came to Kaluga again and took S. with him back to Samara. Z. prevented him from taking away C. who remained to live with her mother in Kaluga.

20. On 9 October 2017 the Samara Regional Court quashed the judgment of 6 July 2017 and held that a residence order in respect of S. and C. should be granted to their mother, while a residence order in respect of K. should be granted to her father. It held, firstly, that the District Court had acted with excessive formalism when it had rejected the report by the childcare authorities of Kaluga as inadmissible in evidence. Secondly, the District Court had disregarded Z.’s arguments that she had comfortable living conditions; the fact that Z. had no real estate was irrelevant. The evidence in the case file suggested that both parents were equally capable of meeting the children’s material and emotional needs. Thirdly, the District Court had noted no evidence of a risk that living with their father might cause the children any physical or psychological harm or undermine their moral development. The case file showed that no such risk would exist either if the children were to live with the mother. Furthermore, the Regional Court held as follows:

“Under principle 6 of the Declaration of the Rights of the Child proclaimed by the UN General Assembly’s resolution 1386 (XIV) of 20 November 1959, 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. Society and the public authorities shall have the duty to extend particular care to children without a family and to those without adequate means of support. Payment of State and other assistance towards the maintenance of children of large families is desirable.

The District Court had granted a residence order in respect of the children to their father without having established or mentioned any exceptional circumstances justifying [S.’s and C.’s] separation from their mother.

The Regional Court does not see any such circumstances either.

Given the circumstances mentioned above, the Regional Court concludes that it is necessary to grant a residence order in respect of [S. and C.] to their mother.”

Lastly, taking into account K.’s wish to live with her father and the fact that Z., respecting that wish, had withdrawn her application for a residence order in her favour in respect of K., the Regional Court held that a residence order in respect of K. should be granted to her father.

21. On 22 October 2017 the applicant returned S. to his mother.

22. The applicant lodged a cassation appeal. He complained, in particular, that the Regional Court had not taken into account the findings made by the psychological experts and the childcare authorities, and in particular the finding that, given the strong emotional bond between the three children, their separation from each other was contrary to their best interests. Nor had the Regional Court given any consideration to the fact that during two out of five years of their life, C. and S. had lived separately from their mother: in 2015 while Z. had lived and worked in Volgograd and then again since August 2016 after Z. had moved to Kaluga. By contrast, they had always lived together with their father and elder sister. The applicant also stated that after their removal to Kaluga C. and S. had often begged him to take them home to Samara and said that they wanted to live with him and their elder sister. He had the impression that the children were neglected by Z., who was always at work, and by their new nanny.

23. The applicant’s cassation appeal was dismissed on 9 February 2018 by a judge of the Samara Regional Court. The judge summed up the reasoning of the appellate judgment as follows:

“The appellate court quashed the first-instance judgment because it disagreed with its findings. It held that the material in the case file showed that both the mother and the father had created equally good environments for the children’s upbringing and had provided them with all that was necessary for their physical and moral development. There were no obstacles to the children’s residence with their mother and no risk that their residence with the mother might harm their physical or psychological health or their moral development. Taking into account principle 6 of the Declaration of the Rights of the Child proclaimed by the UN General Assembly’s resolution 1386 (XIV) of 20 November 1959, according to which a child of tender years was not, save in exceptional circumstances, to be separated from his mother, and in the absence of information about such circumstances, the appellate court found that it was necessary to give a residence order in respect of [S. and C.] to their mother.”

The judge further held that the arguments advanced by the applicant in his cassation appeal did not disclose any exceptional circumstances justifying the children’s separation from their mother, who wished to take care of them. She continued:

“That the elder daughter K. lives with her father and that the younger children are strongly attached to her does not make the younger children’s residence with their mother in another town impossible, given that the mother is renting a comfortable flat where she has created material conditions suitable for their residence there together.”

Lastly, the judge found that the applicant’s allegations of neglect did not contain sufficient information for a finding that the children’s residence with their mother could be harmful for their physical or psychological health or moral development. If the applicant possessed such information, he could lodge a new application for a residence order in his favour.

24. A further cassation appeal by the applicant was rejected on 21 May 2018 by the Supreme Court of the Russian Federation.

25. In March 2018 Z. changed her telephone number, closed her social‑network accounts and moved away from Kaluga together with S. and C. She did not give their new address or other contact details to the applicant or to her elder daughter. The applicant applied to the police. On 23 July 2018 the police informed the applicant that Z. and the twins had been located in Nizhniy Novgorod but Z. had objected to disclosing their address to the applicant.

RELEVANT LEGAL FRAMEWORK

26. For a summary of the relevant domestic law, see Petrov and X v. Russia (no. 23608/16, §§ 58-61, 23 October 2018).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

27. The applicant complained that the granting of a residence order in respect of S. and C. in favour of their mother had violated his right to respect for his family life. He relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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.”

A. Admissibility

28. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

(a) The applicant

29. The applicant submitted that the District Court had made an in-depth examination of all the relevant circumstances. Its examination had not been limited to establishing the parents’ living conditions; it had also ordered an expert examination to determine each parent’s parenting abilities and the degree of the children’s attachment to each of them. On the basis of the detailed analysis of that evidence, it had found that it would be in the best interest of the children to live with their father and their elder sister K. in Samara, where they had been living all their lives and where all their other close relatives also lived.

30. The applicant further submitted that the Regional Court had quashed that lawful and well-reasoned judgment without providing sufficient reasons. It had criticised the District Court for disregarding the opinion of the childcare authorities of Kaluga, despite the fact that that opinion had been of manifestly low quality. That opinion had been based on the examination of Z.’s living conditions, without any assessment of her relationship with the children, of the degree of the children’s attachment to her, or of the quality of the childcare arrangements while Z. was at work. By contrast, the childcare authorities of Samara – which had given evidence to the District Court – had based their opinion both on the assessment of the applicant’s living conditions and on the assessment of the relationships between the children and each of the parents and the elder sister, as described by psychological experts. Most importantly, the Regional Court had given the residence order to the mother in disregard of the expert findings that the children’s attachment to their mother was weak, that they had been very attached to their elder sister K., and that it had been necessary to maintain the environment to which they had been used. Nor had the Regional Court taken into account the fact that Z. had worked long hours and had had to make frequent business trips during which the children had had to stay with nannies they had not known well. In such circumstance a residence order in favour of the mother had been against the best interests of the children and had disclosed a discriminatory bias on grounds of sex.

(b) The Government

31. The Government submitted that the decision to issue the residence order in favour of the mother had been lawful and had been based on the best interests of the children. Firstly, the Government relied on principle 6 of the Declaration of the Rights of the Child proclaimed by the UN General Assembly’s resolution 1386 (XIV) of 20 November 1959, according to which a child of tender years was not, save in exceptional circumstances, to be separated from her or his mother. They further submitted that the domestic courts had made an in-depth examination of the circumstances of the case. The District Court had taken into account that Z. had had to make frequent and long business trips and that after the parents’ separation the children had lived with their father in Samara where all their grandparents and other close relatives also lived. It had also taken into account the degree of the children’s attachment to each of the parents, as determined by psychological experts, and the wishes of the eldest child, K. The Regional Court had analysed the District Court’s findings and disagreed with them. It had held that the District Court had failed to take into account all pertinent information, such as the opinion of the childcare authorities of Kaluga or Z.’s comfortable living conditions. Most importantly, the District Court had not cited any exceptional circumstances warranting the separation of the young children – who had been six years and four months old at that time – from their mother. On the other hand, the Regional Court had confirmed the District Court’s findings in respect of the eldest child, who had expressed a clear wish to live with her father.

32. Lastly, the Government submitted that the scope of the residence order was limited to determining where the children would live; it did not affect the legal relationship between the applicant and the children. The applicant was entitled to apply for contact rights.

(c) The third party

33. Z. submitted that the applicant had acted against the children’s best interests, in particular by taking S. away and thereby separating him from his twin sister C. and from his mother. He had moreover failed to take any steps to agree on a contact schedule. She further submitted that, according to Russian psychologists, children particularly needed their mother’s support at that age. Fathers were unable to meet their psychological needs. Indeed, S.’s and C.’s psychological examination performed in 2019 had showed that they had been very attached to their mother.

2. The Court’s assessment

34. For a summary of the relevant general principles, see Petrov and X v. Russia, no. 23608/16, §§ 98-102, 23 October 2018.

35. The Court considers that the decision to make a residence order in favour of Z. amounted to an interference with the applicant’s right to respect for his family life (see Antonyuk v. Russia, no. 47721/10, § 119, 1 August 2013; see also G.B. v. Lithuania, no. 36137/13, § 87, 19 January 2016). It has not been disputed between the parties that the interference had a basis in national law and pursued the legitimate aim of protecting the rights of others, namely of S., C., and Z. It remains to be examined whether the interference was “necessary in a democratic society”.

36. Before turning to the analysis of the reasons advanced by the domestic courts, it is important to note that the scope of the order was limited to determining where S. and C. would live; it did not affect the legal relationship between the applicant and his children, and nor did it take away the applicant’s parental authority. It is also significant that the applicant is entitled to apply for contact rights.

37. The Court accepts that in reaching decisions on childcare measures, national authorities and courts are often faced with a task that is extremely difficult. It does not lose sight of the fact that the national authorities had no other choice but to make a residence order in favour of one of the two separated parents, as domestic law does not provide for the possibility to make a shared residence order (see Antonyuk, cited above, § 121).

38. It is not the Court’s task to take the place of the domestic authorities in deciding in whose favour a residence order should be given in respect of a child of divorced parents. However, in this sphere, the Court’s review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith; it must determine whether the reasons adduced by the domestic courts in child-residence proceedings were relevant and sufficient. In particular, the Court has competence to ascertain whether the domestic courts, when taking such a decision, conducted an in‑depth examination of the entire family situation and a whole series of relevant factors and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child. A failure to make a sufficiently thorough examination will amount to a violation of Article 8. By contrast, if the domestic courts examined the question at issue with care and in line with the principles laid down by the Court’s case-law, the Court would require very strong reasons to substitute its own assessment for that of the domestic courts (see Elita Magomadova v. Russia, no. 77546/14, § 63, 10 April 2018, with further references).

39. In line with the principles and case-law outlined above, the Court will therefore examine whether the domestic authorities in the present case made an in-depth examination of the entire family situation and of all relevant factors and advanced relevant and sufficient reasons for their decisions.

40. The Court notes that the District Court heard evidence from the applicant, Z., their elder daughter K. and several witnesses, including the children’s nannies, in particular in order to establish who had been taking care of the children in their everyday life. It also ordered a psychological expert examination of the relationships between all family members and asked for an assessment by the childcare authorities. Lastly, it collected information about each parent’s income, living conditions and work schedule. After analysing all that evidence, it found that it was in the children’s best interests to live together at their father’s place of residence. It gave particular weight to the experts’ finding that the children were very attached to each other and should not therefore be separated, as well as to K.’s wish to live with the father. It also took into account that the children’s established home and family and social ties were in Samara where they had always lived. It was also important that after the parents’ separation and the mother’s move to Kaluga, the children continued living in Samara with their father who had been taking everyday care of them. Lastly, it took note of Z.’s work schedule, which required her to take long business trips frequently. The Court is therefore satisfied that the District Court made an in-depth examination of the entire family situation and of all relevant factors and provided relevant and sufficient reasons for its decision.

41. By contrast, the Regional Court’s reasoning for quashing the District Court’s judgment and for giving a residence order to Z. was sparse. It found fault with the District Court for rejecting the opinion of the childcare authorities’ of Kaluga on formal grounds. It however did not cite, sum up or analyse its findings. Nor did it explain why that opinion should have been preferred to the opinion of the childcare authorities of Samara, which were competent to give an opinion in the present case and had made a detailed evaluation of the family situation.

42. The Court further notes that the Regional Court’s assessment of the family situation was limited to a statement that both parents were equally capable of meeting the children’s material and emotional needs and that there were no exceptional circumstances to separate the children from their mother. It did not explain why it had not given consideration to the expert finding that it was necessary to maintain the environment to which the children were used. The District Court had found that that environment consisted in their established home and extended family circle in Samara and that it would be disturbed by their moving to Kaluga to live with their mother. The Regional Court did not explain why it disagreed with that finding or found it irrelevant (compare M.S. v. Ukraine, no. 2091/13, §§ 83 and 84, 11 July 2017).

43. Nor did the Regional Court’s judgment contain any assessment of the relationships between the children and the parents and between the children themselves. The Regional Court did not explain why it treated the experts’ finding that C. suffered from her mother’s distant attitude to her and felt a need for her father’s care as inconsequential. Most importantly, the Regional Court did not give any reasons for its decision to separate the children despite the expert finding that they were very attached to each other, and in particular that the elder sister K. was the most dear and significant person in S.’s life. A judge of that court who later examined the applicant’s cassation appeal seemed to attach greater weight to the fact that the mother’s living conditions were comfortable than to the strength of the children’s attachment to each other (see paragraph 23 above).

44. In view of the above, the Court considers that the domestic authorities did not make an in-depth examination of the entire family situation and of all the relevant factors and did not adduce relevant and sufficient reasons for the decision to grant a residence order in respect of the younger children to their mother, thereby separating them from their elder sister to whom they were strongly attached.

45. There has accordingly been a violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 8

46. The applicant complained that the decision to make a residence order in respect of the younger children in favour of their mother had amounted to discrimination on grounds of sex. He relied on Article 14 of the Convention, taken in conjunction with Article 8.

47. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

48. Having regard to the finding relating to Article 8, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 14 of the Convention, taken in conjunction with Article 8.

III. ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL No. 7

49. The applicant further complained that the decision to grant a residence order in respect of his children in favour of their mother had violated his right to equality between spouses. He relied on Article 5 of Protocol No. 7, which reads as follows:

“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.”

50. The Court reiterates that it has previously decided that Article 5 of Protocol No. 7 essentially imposes a positive obligation on States to provide a satisfactory legal framework under which spouses have equal rights and obligations concerning such matters as their relations with their children. It is not concerned with the way in which the national courts applied it (see Leonov v. Russia, no. 77180/11, § 94, 10 April 2018, with further references).

51. In the present case, the applicant does not question the legislative framework. His criticism only concerns the way in which the national courts applied it. The Court finds no indication that the law in question violates the equality clause provided in Article 5 of Protocol No. 7.

52. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

53. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

54. The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

55. The Government submitted that the claims were excessive.

56. The Court awards the applicant EUR 9,800 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

57. The applicant asked to have his costs and expenses reimbursed without giving any further details.

58. The Government submitted that the applicant had not submitted any documents confirming the costs and expenses.

59. In accordance with Rule 60 §§ 2 and 3 of the Rules of Court, the Court rejects the claim for costs and expenses because the applicant did not submit itemised particulars of all claims, together with any relevant supporting documents.

C. Default interest

60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the alleged violation of the applicant’s right to respect for his family life and the alleged discrimination on grounds of sex admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds that there is no need to examine the complaint under Article 14 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 9,800 (nine thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                      Georgios A. Serghides
Deputy Registrar                        President


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