INTRODUCTION. The present case concerns the authorities’ refusal to return the applicant’s daughter, whose mother had been deprived of parental authority and who had been placed in a foster family without the applicant’s knowledge or consent, to his care.
CASE OF PAVEL SHISHKOV v. RUSSIA
(Application no. 78754/13)
Art 8 • Family life • Positive Obligations • Authorities’ refusal to order the applicant’s daughter’s transfer to his care following removal of mother’s parental authority • Applicant’s own inaction leading to severance of ties • Child well-integrated into foster family, vulnerable due to young age and previous traumatising experience • Reunion of child with parent with whom he has not lived for some time may not be possible immediately and may require preparatory measures • Applicant with parental authority and rights who could seek his daughter’s transfer to his care as circumstances evolved• Fair and adversarial decision-making process affording requisite protection to applicant’s rights • Authorities’ refusal in the child’s best interests, within their margin of appreciation and based on “relevant and sufficient” reasons
2 March 2021
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Pavel Shishkov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Paul Lemmens, President,
Georgios A. Serghides,
Peeter Roosma, judges,
and Olga Chernishova, DeputySection Registrar,
Having regard to:
the application (no. 78754/13) 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 Russian national, Mr Pavel Grigoryevich Shishkov (“the applicant”), on 28 November 2013;
the decision to give notice to the Russian Government (“the Government”) of the complaint under Article 8 of the Convention;
the decision to grant priority to the above application under Rule 41 of the Rules of Court;
the parties’ observations;
Having deliberated in private on 2 February 2021,
Delivers the following judgment, which was adopted on that date:
1. The present case concerns the authorities’ refusal to return the applicant’s daughter, whose mother had been deprived of parental authority and who had been placed in a foster family without the applicant’s knowledge or consent, to his care.
2. The applicant was born in 1989 and lives in Moscow. He was represented by Mr V.M. Shukh, a lawyer practising in Moscow.
3. The Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by Mr M. Galperin, his successor in that office.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Background to the case
5. In 2006 the applicant started a relationship with Ms Ye. who lived in Orel. They did not get married, and the applicant continued to spend most of his time in Moscow where he lived and worked and where his mother lived. The distance between Moscow and Orel is about 360 km.
6. In 2007 Ms Ye. gave birth to a son, K., and in 2008 she gave birth to a daughter, V. The children’s birth certificates indicated Ms Ye. as their mother, whereas there was a dash in the entry concerning the father; the children’s patronymic reflected the applicant’s first name, and they were given Ms Ye.’s surname. As the applicant later submitted to the national authorities, Ms Ye. wanted to be recorded as a single mother for the purposes of social benefits.
7. According to the applicant, during the period of his relationship with Ms Ye., he regularly came to see her and the children in Orel and took part in the children’ upbringing. In 2009 that relationship broke down, following which the applicant did not maintain any regular contact with his ex-partner or the children.
A. The children’s placement in care
8. On 19 February 2010 the police in Orel received a complaint that Ms Ye. was getting drunk and was neglecting her two children. On 22 February 2010 the police arrived at Ms Ye.’s place of residence, urgently removed K. and V. from their mother and placed them in Orel children’s hospital for infectious diseases. On the same date they informed the Orel childcare authority of this placement.
9. On 12 March 2010 the hospital informed the Orel childcare authority that, to date, no relatives of the children had appeared with the intention of taking them from the hospital.
10. By a decision of 5 April 2010 the Mayor of Orel ordered the transfer of K. and V. into public care, stating that they had both been neglected by their mother, a single parent, and that this situation posed a threat to their life and health. The next day the children were placed in a municipal childcare facility – the Orel specialised infant home (“the Orel infant home”).
11. On 1 June 2010 Ms Ye. asked the Orel infant home to keep her son K. for six months; on 24 December 2010 she made a similar request with regard to her daughter, asking the Orel infant home to keep V. for four months.
12. On 29 July 2010 K., who had reached the age of three, was transferred to another municipal facility – the Mtsensk children’s home. His younger sister V. remained at the Orel infant home.
13. On 25 May 2011 the Orel infant home drew up a report confirming that Ms Ye. had failed to participate in V.’s upbringing. The report stated that the mother had not paid any visits to V. during the past five months, had not inquired about her health and well-being, and had not contributed financially to the child’s maintenance. In such circumstances, and taking into account the fact that the girl had lived away from her mother for over six months, there was no need to seek her consent for the child’s adoption.
B. Withdrawal of Ms Ye.’s parental authority
14. On an unspecified date the Mtsensk children’s home brought a court action seeking to have Ms Ye. deprived of her parental authority in respect of K.
15. On 19 July 2011 the Sovetskiy District Court of Orel (“the District Court”) granted that action, which had been supported by the Orel childcare authority, and deprived Ms Ye. of her parental authority in respect of K. The Mtsensk children’s home argued that since K.’s transfer there in July 2010, Ms Ye. had not paid a single visit to him, had not sent anything, called or otherwise shown any interest in his life. Ms Ye. admitted her failure to take part in her son’s upbringing for over one year and did not contest the claim. The District Court concluded that it was in the child’s best interests to deprive Ms Ye. of her parental authority in respect of her son; it also ordered that she pay child maintenance for the benefit of the Mtsensk children’s home, to cover the costs of her child’s upbringing. The judgment was not appealed against and it entered into force on 30 July 2011.
16. On an unspecified date the Orel infant home instituted court proceedings to deprive Ms Ye. of her parental authority in respect of V.
17. On 15 November 2011 the District Court granted that action, which had been supported by the Orel childcare authority. The Orel infant home pointed out that since V.’s placement there in April 2010, Ms Ye. had only paid four visits to her daughter. Ms Ye. contested the claim and argued that she had paid visits to her daughter as often as she could, and that at other times when she wanted to visit, the Orel infant home had not been admitting visitors. She argued that she was working, had little time to spend with the child, but that she intended to take her daughter to Moscow where V.’s father (the applicant) and his mother lived. She did not name the father and the court does not seem to have followed up on this information. The District Court concluded that it was in the child’s best interest to deprive Ms Ye. of her parental authority in respect of her daughter; it also ordered that she pay child maintenance for the benefit of the Orel infant home to cover the costs of her child’s upbringing. The judgment was not appealed against and it entered into force on 29 November 2011.
C. V.’s transfer to a foster family
18. On 25 November 2011 the Orel infant home gave its consent to V.’s transfer into the care of third parties, Ms L.P and Mr Yu.P. The relevant document noted that the prospective foster parents had established good emotional and psychological contact with the child, who was in need of attention and support from caring adults. Since the child’s placement in the institution, her mother had not paid any visits and had not made any attempt to re-establish contact with the child. The report concluded that V.’s transfer into the care of Ms L.P. and Mr Yu.P would be in her best interests.
19. By a decision of 30 December 2011 the Mayor of Orel ordered V.’s transfer into the foster care of Ms L.P and Mr Yu.P. On 11 January 2012 Ms L.P and Mr Yu.P. concluded a fostering agreement with the Orel Town authorities, which determined their rights and obligations as V.’s foster parents.
20. On 12 January 2012 V. was transferred into the care of Ms L.P. and Mr Yu.P. and has been living in their family ever since. According to the explanation given by Ms L.P. and Mr Yu.P. in the context of the proceedings before the Court, at that time the childcare authority had informed them that V. had a brother, K., and invited them to take both children into their care. They had, however, refused as they had been informed that V.’s brother had a mental disability.
II. the applicant’s attempts to obtain care of the children
21. On 5 April 2012 the applicant wrote to the Orel childcare authority seeking their consent, as required by the relevant domestic law, for the purpose of filing a request for a formal recognition of his paternity. He stated that the children’s mother had been deprived of her parental authority; that during the relevant court proceedings she had informed the authorities that the children had a father but the court had disregarded that information; that a relevant childcare authority had concealed the fact that the applicant’s mother had assured them that she and the applicant were willing to take the children in the event of the removal of Ms Ye.’s parental authority; and that Ms Ye. had concealed from him the fact that she had been deprived of her parental authority. The applicant stated his intention to have the children transferred into his care and stressed that the children had been separated in July 2010, which must have caused them further emotional distress. He also stated that he was aware of K.’s whereabouts but was unable to establish V.’s whereabouts as she was living in a foster family.
A. The applicant’s court claim
22. On 15 May 2012 the applicant applied to the District Court seeking to have his paternity in respect of K. and V. legally recognised and to have the children transferred into his care and assigned his surname.
23. In his claim, the applicant pointed out that he had cohabited with Ms Ye. and that K. and V. had been born as a result of that relationship. He had not been indicated as the children’s father on their birth certificates, as Ms Ye. had wished to retain the status of single mother to obtain welfare allowances. In March 2010 the applicant had found out that the children had been removed from Ms Ye. He had immediately suggested that he should have his paternity over them legally recognised but Ms Ye. had ignored his telephone calls. In April 2011 Ms Ye.’s aunt had informed him that Ms Ye. had taken the children from their children’s homes. In October 2011 he had gone to Orel and found out that the children were living in two different children’s homes. He had again told Ms Ye. that he had been ready to have his paternity legally recognised but she had replied that she did not have the children’s documents. After that conversation Ms Ye. had again started ignoring his telephone calls. Eventually, his mother found out that Ms Ye. had been deprived of her parental authority in respect of the children.
B. Recognition of the applicant’s paternity
24. In the context of those proceedings, on 18 June 2012 the District Court ordered a DNA paternity test in respect of V., as her foster parents had doubts that the applicant was her biological father.
25. An expert’s report of 2 August 2012 stated that the results of the DNA test revealed that the applicant was V.’s biological father.
26. On 23 August 2012 the District Court disjoined the applicant’s claim for recognition of his paternity from his claim seeking the children’s transfer into his care, stating that the two issues should be examined in separate sets of proceedings.
27. By a judgment of the same date, the District Court recognised the applicant’s paternity in respect of K. and V.
28. In October 2012 the Orel Town civil registration office issued new birth certificates for the children, indicating the applicant as their father.
C. K.’s transfer to the applicant
29. By an interlocutory decision of 24 September 2012 the District Court disjoined the applicant’s claim for K.’s transfer into his care from his claim for V.’s transfer into his care and suspended the proceedings as regards the latter claim.
30. On the same date the District Court delivered a judgment by which it ordered that K. be returned to the applicant’s care. The court noted that the applicant and his mother had paid regular visits to the boy in the Mtsensk children’s home, and had brought him presents and clothes. The child had looked forward to their visits, was happy to see them and had good contact with both his father and grandmother. The court was satisfied with the applicant’s living conditions, and his financial and personal references. It noted that, as a parent, the applicant had a preferential right to take care of his child and that it would be in K.’s best interests to live with his father.
D. The applicant’s claim for V.’s transfer into his care
1. Proceedings before the first-instance court
31. On 21 February 2013 the District Court examined the applicant’s claim seeking V.’s transfer into his care. The applicant and his representative participated in the court hearing.
32. The court observed that the applicant was the father of V., born in 2008, and that V.’s mother had been deprived of her parental authority in respect of the girl by a court judgment of 15 November 2011 (see paragraph 17 above). It further noted that on 6 April 2010 V. had been placed in the infant home, and that her mother had never sought her return, prior to the withdrawal of her parental authority in respect of the girl. The court further dismissed as unconvincing the applicant’s allegation that he had found out about V.’s placement in the infant home only six months later. In that connection, the court pointed out that in his claim the applicant had clearly stated that he had known about that fact in March 2010 (see paragraph 23 above). It considered that the applicant had erred in the exact dates, given that V. had been placed in the infant home in April rather than March 2010, but that, in any event, he had known about the child’s removal from Ms Ye. from the very beginning. The court stressed that nothing had prevented the applicant from seeking recognition of his paternity of V. or taking her from the infant home already in that period. However, the applicant had not filed his relevant claim until May 2012 (see paragraph 22 above), more than two years later, which fact had demonstrated his indifference to his daughter.
33. The District Court critically assessed and rejected the applicant’s allegations that he had trusted Ms Ye.’s statement that she had taken V. from the infant home. In the court’s view, if the applicant had been genuinely interested in his daughter’s life, it would have been impossible to conceal from him for such a long period the fact that V. had no longer been living with her mother. Whilst, in the applicant’s submission, he had talked to Ms Ye. over the telephone, he had never attempted to talk to his daughter, let alone come to see her in Orel.
34. The court further noted that since 12 January 2012 V. had been living with her foster parents, Ms L.P. and Mr Yu.P. Two reports by the Orel Town authorities stated that there were very good and friendly relations between the child and the foster parents, that the latter were taking good care of the girl and loved her; she called them “mum” and “dad”. Her living conditions were good, she had toys and books; the girl attended a nursery school; her foster parents expressed an interest in her life, attended all parents’ meetings and other nursery school events. The report also stated that, when she had just been transferred to the foster family, V. had been reluctant to go to the nursery school, as she had been afraid that she would not be taken home. Then the situation had changed, the child had become open, sociable and affectionate. She did not know her natural father.
35. The court also took into account an expert’s report on V.’s psychological examination dated 3 December 2012. The report stated that V. included her foster parents and herself in her family circle. She had a strong emotional attachment to her foster mother; her attitude towards her foster father was positive and friendly. The examination had not established any other important adults to whom V. was attached.
36. The court went on to refer to two reports on the examination of the applicant’s living conditions dated 14 June and 6 December 2012. They stated that, whilst there had been living space for the applicant’s son, K., no such space had been envisaged for V.; the kitchen was untidy. The earlier report indicated that the applicant’s mother had intended to have the flat renovated within the coming months; however, the second report stated that no renovation had been carried out to date. K. lived in the applicant’s flat but had no medical insurance and was not attending a nursery school.
37. In a report of 13 December 2012 a childcare authority in Moscow, at the place of the applicant’s home, pointed out that an interview with the applicant had revealed his lack of emotional attachment to his son. Moreover, the applicant had difficulty recalling when he had last seen his daughter and had not wanted to talk about his plans in the event of his daughter’s transfer into his care. The report thus concluded that such transfer would not be in V.’s interest.
38. An opinion from psychiatric experts pointed out that the applicant was unable adequately to assess possible psychological consequences for his daughter in the event of her transfer into his care, given that she had not seen him for four years. He was also unable to anticipate her reaction if she met her brother, whom she had not seen for two years.
39. The court also called and examined a number of witnesses. Ms S., a child psychologist, who had carried out V.’s examination (see paragraph 35 above) stated that V.’s separation from her foster parents, whom she considered to be her only parents and to whom she was strongly attached, would be extremely stressful for her. As a result, she might lose confidence in adults, as at her age she would have difficulty understanding that she had been separated from her foster parents so that she could be transferred to her biological father; she might assume that she had again been abandoned.
40. The head teacher of the nursery school which V. attended stated that whilst initially V. had been an anxious, reserved and unsociable child, she had eventually changed. After she had met her biological parents in the context of the DNA test procedure (see paragraph 24 above), the child had started worrying that she might be taken away from her “mum” and “dad” – her foster parents – and transferred to strangers. When she saw unknown men, the girl would start crying and ask whether those men would take her away. On several occasions, V. had asked Ms L.P. not to give her to anyone. Her biological father had never expressed any interest in the child during the period when she was attending nursery school.
41. In a written statement, the director of an arts studio which V. attended pointed out that initially the girl had been anxious and had refused to take part in the activities; she had remained on her foster mother’s lap. Eventually, she had become more confident and open; and currently participated in all the activities. She was very attached to her foster parents, and would express her affection by hugging and kissing them.
42. Having summarised the above and taking into account V.’s attachment to her foster parents, the District Court concluded that V.’s transfer into the applicant’s care was not in her best interests and dismissed his claim.
2. Proceedings before higher courts
43. The applicant appealed against the judgment of 21 February 2013. He argued, in particular, that Ms Ye. had concealed the children’s removal and placement in public care from him and his mother; that he had only found out about it in March 2010; that from that time onwards Ms Ye. had been refusing his requests for his paternity to be formally recognised, with the result that he had lodged a relevant court claim in May 2012. He thus challenged as incorrect the first-instance court’s conclusion that he had shown indifference and disregard for his daughter’s life. The applicant also challenged as unlawful V.’s transfer to a foster family. He complained that the first-instance court had not taken into account a report drawn up by psychiatrists which had stated that he was fully able to bring up his children. He also pointed out that V. had not been heard by the first-instance court and that, as a result of the latter’s judgment, she remained separated from her biological relatives, including himself, her brother and her grandparents.
44. On 28 May 2013, having heard the parties, the applicant’s representative speaking on his behalf, the Orel Regional Court upheld the judgment of 21 February 2013. It fully endorsed the findings of the District Court and noted that, should there be a change in the circumstances underlying the first-instance court’s refusal to order V.’s transfer into the applicant’s care, it would be open to the applicant to seek the establishment of his parental authority in respect of V.
45. On 8 November 2013 and 31 January 2014, respectively, the Orel Regional Court and the Supreme Court of Russia refused to grant leave for the applicant’s cassation appeal. The Orel Regional Court rejected, in particular, the applicant’s argument that he was unable to exercise his parental rights and obligations in respect of V.; it stated that a child’s placement in a foster family did not break the legal link between that child and his or her parents, with the result that the parents could still maintain contact with the child.
E. Contact sessions with V.
46. On 22 July 2013 the applicant was informed by the Orel child care authority that Ms L.P and Mr Yu.P. had been invited to discuss the possibility of contact between V. and her biological relatives, including himself. The foster family refused to arrange such meetings, arguing that the girl had not known any other family except for themselves. The applicant was invited to apply to a court in order to resolve the situation.
47. On 27 September 2013 the Zheleznodorozhny District Court of Orel approved a friendly settlement agreement, which provided for contact sessions between V. and the applicant. On 21 November 20013 the same court approved a similar agreement regarding contact sessions between V. and her paternal grandmother. According to the terms of the agreements, the applicant and his mother could see V. twice a month on Saturday or Sunday for two hours during the first three months, and every week on Saturday or Sunday for two hours in the further period.
48. According to the Government, which relied on the explanation given by Ms L.P. and Mr Yu.P. in the context of the proceedings before the Court, during the period between the date when the friendly settlement agreement had been approved by the domestic court and 15 September 2014, the date of submission by the Government of their observations, the applicant had only seen his daughter on two occasions, on 20 October 2013 and 8 June 2014. During the first contact session, the applicant had not approached his daughter, had not talked to her nor expressed any interest in her. As for the second contact session, the applicant had arrived ten minutes before it ended, had not expressed any interest in his daughter and had left without saying goodbye. His mother had made inappropriate remarks towards V.’s foster parents.
49. The applicant disagreed with that account and stated that he had attended the contact sessions as often as he could. Indeed, he had been unable to participate in some of the contact sessions as his working schedule had prevented him. However, on several occasions it was V.’s foster parents who had cancelled or postponed the sessions. They had been hostile towards him; they would refuse to accept some toys for V.; they were reluctant to leave the applicant and his daughter alone during contact sessions and would always supervise them. The applicant submitted photographs picturing him, his mother, K. and V. during contact sessions.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. RUSSIAN FAMILY CODE
A. Legal provision concerning protection of children’s rights
50. Article 54 of the Family Code provides that every child, that is a person under the age of 18 years, has a right to live and to be brought up in a family, in so far as it is possible, a right to know his or her parents, a right to their care, and a right to live together with them, except where it is contrary to his or her interests.
51. Article 55 entitles a child to maintain contact with his or her parents, grandparents, brothers, sisters and other relatives.
B. Legal provisions concerning parents’ rights and obligations
52. Article 63 provides that the parents’ right to bring up their children takes precedence over such a right of any other person.
53. Article 64 provides that the parents act on the child’s behalf and defend the child’s rights and interests in any relations with persons or legal entities. They act ex officio as the child’s legal representative in court proceedings.
54. Article 68 vests in the parents a right to seek the return of their child from any person who retains the child other than on the basis of law or pursuant to a court decision. In case of dispute, the parents are entitled to file a court claim for protection of their rights. When examining that claim, the court, with due regard to the child’s opinion, is entitled to reject the claim if it finds that the child’s transfer to the parents is contrary to the child’s interests.
C. Legal provisions governing foster care
55. Article 145 establishes that siblings cannot be transferred into the guardianship (foster care) of different persons, except in situations where such placement is in the children’s interest.
II. Supreme Court practice
56. In its ruling no. 10 on the application by the courts of legislation when resolving disputes concerning the upbringing of children, dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular:
6. In accordance with the law, the parents’ right to bring up their children has precedence over such a right of any other person (Article 63 § 1 of the Russian Family Code), and they are entitled to seek the return of their child from any person who retains the child other than on the basis of law or pursuant to a court decision (Article 68 § 1 (1) of the Russian Family Code). At the same time, a court is entitled, with due regard for the child’s opinion, to reject a parent’s claim if it finds that the child’s transfer to the parent is contrary to the child’s interests …
When examining such cases, the court takes into account whether there is a realistic possibility for a parent duly to bring up the child; the nature of the relations between the parent and the child, the child’s attachment to the individuals with whom he or she is living at that time, and other particular circumstances that are relevant for securing adequate conditions for the child’s life and upbringing by his or her parents, or by the individuals with whom the minor is actually living and being brought up by …
7. When examining parents’ claims for the return of their child from individuals by whom [the child] is retained on the basis of the law or in accordance with a court decision (guardians, foster parents …), it is necessary to ascertain whether the circumstances on the basis of which the child was transferred to those individuals …, have changed by the time the case is examined, and whether the child’s return to his or her parents would be in his or her interest.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
57. The applicant complained that the courts’ refusal to order the transfer of his daughter into his care had breached his right to respect for his private and family life as provided in Article 8 of the Convention, which reads as follows:
“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.”
58. The Government raised an objection alleging a failure by the applicant to exhaust domestic remedies. They pointed out that the judgment of 21 February 2013, as upheld on appeal on 28 May 2013 (see paragraph 44 above), had made it clear that it was open to the applicant to obtain a reconsideration of a refusal to transfer V. into his care should there be a change in the circumstances underlying that refusal. The Government argued that, after the proceedings in the applicant’s case, the competent childcare authority had issued a report in which it had noted improvements in the applicant’s living conditions. The Government argued that he should therefore have brought a new claim seeking his daughter’s return to his care. By failing to do so, the applicant had failed to exhaust the available domestic remedies.
59. The applicant contested the Government’s arguments and insisted that he had exhausted the available domestic remedies.
60. The Court reiterates that the issue of whether domestic remedies have been exhausted is normally determined by reference to the date on which the application was lodged with the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts), and, more recently, O’Sullivan McCarthy Mussel Development Ltd v. Ireland, no. 44460/16, § 136, 7 June 2018). In his application, which was introduced on 28 November 2013, the applicant complained about his inability to have his daughter transferred into his care in 2013, the situation that had been examined by the domestic courts at four levels of jurisdiction (see paragraphs 31, 44 and 45 above). The Government did not argue that there had been any other remedies to exhaust in the context of that procedure. As regards the subsequent developments in the applicant’s circumstances to which the Government referred (see paragraph 58 above), these cannot be taken into account in so far as the question of the applicant’s compliance with the exhaustion requirement under Article 35 § 1 of the Convention for the purpose of the present application is concerned.
61. It is thus clear that this complaint cannot be rejected for non‑exhaustion of domestic remedies. The Court accordingly dismisses the objection raised by the Government.
62. The Court further 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.
1. The parties’ submissions
(a) The applicant
63. The applicant argued that, in their relevant decisions, the domestic courts had applied erroneous provisions of national law and therefore the interference with his right to respect for his family life had not been “in accordance with the law”.
64. He further contended that, in any event, that interference had not been necessary in a democratic society. He denounced numerous breaches in the procedures for the children’s removal from their mother and their placement in public care and for V.’s placement in foster care. He pointed out that, whilst in public care, the children had been separated, in breach of the relevant provisions of domestic law (see paragraph 55 above), when K. had been transferred to a children’s home immediately after he had reached the age of three, whereas V. had remained in an infant’s home (and thus separated from K.) even after she had reached that age. Moreover, the authorities had made no attempt to reunite them with each other or with their natural family (their father and grandparents), even though in the proceedings to deprive Ms Ye. of her parental authority in respect of V. she had mentioned that the girl had a biological father. In the applicant’s view, that was indicative of the authorities’ biased attitude in favour of V.’s foster parents and their unwillingness to ensure the reunification of the applicant’s family.
65. The applicant argued that he had been placed in a disadvantageous position, having been left fully unaware of the removal of Ms Ye.’s parental authority in respect of the children and of V.’s transfer to a foster family. As a result, he had been unable to take any steps with a view to exercising his parental authority in respect of V.
66. The applicant went on to stress the inconsistency of the domestic courts’ approach in dealing with his claim for K.’s return to his care and that regarding V.’s return to his care. In the former case, the courts had not challenged the applicant’s child-rearing abilities and had held that the child’s transfer to his father would be in the child’s interest. Yet, in the latter case they had concluded that it would not be in the child’s interest to live with her natural family. As a result, V. had remained separated from her father, brother and grandparents.
67. The applicant insisted that before his separation from Ms Ye. he had cared for the children, had taken part in their upbringing and had supported them financially. After his relationship with Ms Ye. had broken down, he had been unable to maintain contact with the children because of tensions between him and their mother. As V. had been taken into public care and then placed in foster care, he had been unable to see her until so authorised by a court. According to the applicant, after he had resumed his contact with V., the girl had established good relations with him, her brother and her paternal grandmother, and had even been asking the latter when she would take her to live with her in Moscow. In that connection, the applicant argued that, in so far as the domestic courts had referred to the risk of stress and trauma for the girl as the ground for their refusal to order her transfer into his care, that reasoning had been unconvincing.
68. As regards the Government’s argument that he had not sought a formal recognition of his paternity or the children’s transfer into his care until two years after the children had been removed from their mother and taken into public care, the applicant submitted that he had attempted to settle the matter with the children’s mother. The latter had concealed from him the fact that her parental authority had been removed, and the applicant had lodged a court claim as soon as he had become aware of this. He argued that, in any event, at the time when he had brought an action seeking V.’s return, she had only been living in the foster family for three and a half months. Therefore, her transfer to his family had not been susceptible of causing her any serious harm. The applicant also called into question the courts’ finding that “close emotional ties” had been established between the girl and her foster parents over such a short period.
69. Overall, the applicant insisted that the domestic authorities had failed to secure a fair balance between the interests involved.
(b) The Government
70. The Government submitted that the refusal to return the applicant’s daughter to his care had constituted an interference with his right to respect for his family life as secured by Article 8 § 1 of the Convention. They argued, however, that the impugned measure had been justified under Article 8 § 2. In particular, it was lawful, pursued the legitimate aim of protecting V.’s interests and was necessary in a democratic society.
71. More specifically, the Government contended that K. and V. had been removed from Ms Ye. as the latter had failed to perform her parental obligations in respect of them. Given that Ms Ye., who had been a single mother, had then been deprived of her parental authority, and in the absence of a formal recognition of the applicant’s paternity, the authorities had assumed that the children had been left without parental care, had taken them into public care and had declared them available for transfer to a foster family. It had not been until two years after the children’s removal from their mother and their placement in public care that the applicant had lodged a court claim for recognition of his paternity and the children’s return to his care. In the latter connection the Government pointed out that, as had been established by the domestic authorities, the applicant had been aware of the children’s removal from their mother since March 2010, and that nothing had prevented him from seeking his children’s transfer to his care at that point.
72. The Government further argued that, prior to 2009, contacts between the applicant and his daughter had been infrequent and limited, given that he had not lived together with Ms Ye. and the children but had only visited them occasionally. After the relationship between the applicant and Ms Ye. had broken down in 2009, the applicant had discontinued his visits to the children, and had thus interrupted contact with them. The Government thus argued that there had been no close relations between the applicant and V.
73. On the other hand, the domestic courts had abundant evidence showing that there had been a deep mutual attachment between the girl and her foster parents; that those were the only family she knew; that V.’s separation from them would be an extremely stressful situation for her and might seriously traumatise her. Against this background, the domestic courts were justified in their decision to refuse V.’s transfer to the applicant’s care. They had struck a fair balance between all interests involved and had taken their decision in the child’s best interests.
74. The Government also stressed that the applicant’s right to have contact with his daughter had been respected. In that connection, they referred to friendly settlement agreements of 27 September and 21 November 2013.
2. The Court’s assessment
(a) General principles
75. The Court reiterates that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention, even if the relationship between the parents has broken down (see, as a recent authority, Ilya Lyapin v. Russia, no. 70879/11, § 44, 30 June 2020). There is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk [GC], no. 41615/07, § 135, 6 July 2010, and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). Generally, those interests dictate that the child’s ties with his or her family must be maintained, except in cases where the family has proved to be particularly unfit and this may harm the child’s health and development (see, for instance, K.B. and Others v. Croatia, no. 36216/13, § 143, 14 March 2017). Severing such ties means cutting a child off from his or her roots, which may only be done in exceptional circumstances (see Görgülü v. Germany, no. 74969/01, § 48, 26 February 2004); everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see Kacper Nowakowski v. Poland, no. 32407/13, § 75, 10 January 2017).
76. Beyond protection against arbitrary interference, Article 8 imposes on the State positive obligations inherent in effective respect for family life. Where a family tie has been established, the State must in principle act in such a way as to allow the relationship to develop (see, for instance, S.H. v. Italy, no. 52557/14, § 38, 13 October 2015). Article 8 of the Convention thus imposes on every State the obligation to aim to reunite a natural parent with his or her child (see K. and T. v. Finland [GC], no. 25702/94, § 178, ECHR 2001‑VII, and Görgülü, cited above, § 45). It includes a parent’s right to take measures with a view to being reunited with the child, and an obligation on the national authorities to take such action (see R.M.S. v. Spain, no. 28775/12, § 71, 18 June 2013, and Omorefe v. Spain, no. 69339/16, § 38, 23 June 2020).It must be borne in mind that the State’s positive obligation is not one as to results, but one as to means employed. The key consideration is whether those authorities have taken all necessary steps to facilitate contact as can reasonably be demanded in the special circumstances of each case (see, among many other authorities, Suur v. Estonia, no. 41736/18, § 77, 20 October 2020).
77. At the same time, it is clearly also in the child’s interest to ensure his or her development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Strand Lobben and Others v. Norway [GC], no. 37283/13, § 207, 10 September 2019). The child’s best interests may, depending on their nature and seriousness, override those of the parents (see, for instance, V.D. and Others v. Russia, no. 72931/10, § 114, 9 April 2019). In particular, where contact with the parent might appear to threaten the best interests of the child or interfere with his or her relevant rights, it is for the national authorities to strike a fair balance between them (see Khusnutdinov and X v. Russia, no. 76598/12, § 80, 18 December 2018).
78. It must be borne in mind that generally the national authorities have the benefit of direct contact with all the persons concerned. It is accordingly not the Court’s task to substitute its own assessment for that of the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their power of appreciation (see, among other authorities, X v. Latvia [GC], §§ 101-02, and Strand Lobben and Others, § 210, both cited above). The margin of appreciation to be granted to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Whilst the Court recognises that the authorities enjoy a wide margin of appreciation when deciding on custody matters, stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights and access, and of any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger of family relations between parents and child being effectively curtailed (see Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I; Haase v. Germany, no. 11057/02, § 92, ECHR 2004-III (extracts); and Strand Lobben and Others, cited above, § 211).
79. In the context of both negative and positive obligations, the Court has to consider whether, in the light of the case as a whole, the reasons given by the competent domestic authorities to justify their relevant decisions were “relevant and sufficient” for the purposes of Article 8 § 2 of the Convention. To that end, the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and a whole series of factors, particularly those of a factual, emotional, psychological, material and medical nature, 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 (see Neulinger and Shuruk, cited above, § 139).
80. It is for each Contracting State to equip itself with adequate and effective means to ensure compliance with its obligations under Article 8 of the Convention, and it is for the Court to ascertain whether the domestic authorities, in applying and interpreting the applicable legal provisions, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests (as a recent authority, see Haddad v. Spain, no. 16572/17, § 56, 18 June 2019). The decisive issue in this area is whether a fair balance between the competing interests at stake has been struck, within the margin of appreciation afforded to States in such matters (see, for instance, Różański v. Poland, no. 55339/00, § 61, 18 May 2006).
81. The Court will also have to determine whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of his interests safeguarded by Article 8 (see Schneider v. Germany, no. 17080/07, § 93, 15 September 2011).
(b) Application of those principles in the present case
82. The Court observes at the outset that it has not been in dispute between the parties that the tie between the applicant and his daughter amounted to “family life” within the meaning of Article 8 of the Convention (see Khusnutdinov and X, cited above, § 84, and Ilya Lyapin, cited above, § 48). It further considers that the decisive question in the present case is whether the domestic authorities took all necessary and adequate steps that could be reasonably expected from them to enable V. to lead a normal family life with her father and brother (see Uzbyakov v. Russia, no. 71160/13, § 107, 5 May 2020, and the authorities cited therein).
83. In the above connection, the Court notes that its examination of the case at hand is limited to the applicant’s complaint concerning the domestic courts’ refusal to order his daughter’s transfer to his care. It has, however, to put this complaint into context, which inevitably means, to some extent, having regard to earlier events (see Strand Lobben and Others, cited above, § 148; Zelikha Magomadova v. Russia, no. 58724/14, § 82, 8 October 2019; and Uzbyakov, cited above, § 98).
84. On the facts, the Court observes that from 2006 until 2009 the applicant had extramarital relations with Ms Ye. Two children were born from that relationship, K. in 2007 and V. in 2008. The applicant never lived with Ms Ye. or the children on a permanent basis; his contact with them was limited to his visits, which, in his submission, were regular (see paragraph 7 above). After the relations between the applicant and Ms Ye. broke down in 2009, it does not appear that he saw his daughter V. even once (see paragraphs 33 and 38 above).
85. On 22 February 2010, alerted to a situation where two very young children were being neglected by their mother, the authorities urgently removed K. and V. from Ms Ye. (see paragraph 8 above). The Court notes that, at the time, the applicant had no formal parental status in respect of the children, and thus there were no entries about their father on their birth certificates (see paragraph 6 above). In such circumstances, it was not unreasonable for the authorities to consider the children abandoned and to take them into public care (compare Uzbyakov, cited above, §§ 108-109). In the absence of information about the children’s father, and given the urgent nature of the situation they were facing, where two very young children were being neglected by their mother, the authorities cannot be blamed for a failure to inform the applicant of the children’s removal from their mother, let alone transfer them into his care. The Court does not doubt, therefore, that the initial taking into care of the children was necessary to protect their interests.
86. The Court further observes that on 6 April 2010 the children were placed in an infant home, as during the period that had elapsed since their removal, neither their mother nor any other relatives had expressed any intention of taking them into their care (see paragraphs 9 and 10 above). By court decisions of 19 July and 15 November 2011 Ms Ye. was further deprived of her parental authority in respect of K. and V. respectively (see paragraphs 15 and 17 above). On 12 January 2012 V. was transferred to live with foster parents on the basis of an administrative decision of 30 December 2011 (see paragraphs 19 and 20 above). On 15 May 2012 the applicant filed a court claim with a view to having his paternity in respect of both children recognised in law and to having them transferred to his care (see paragraph 23 above). The national court established that the applicant was the children’s biological father and formally recognised his paternity and thus parental authority over them (see paragraph 27 above). Eventually, the court ordered K.’s transfer to the applicant’s care (see paragraph 30 above) but rejected the applicant’s similar claim in respect of V.
87. In the latter connection, the Court observes that the national courts at four levels of jurisdiction assessed the situation in the light of oral and written evidence available to them. In particular, the first-instance court stressed the applicant’s inaction between March 2010, when he had found out about the children’s removal from their mother and their placement in public care (see paragraphs 23 and 32 above), and May 2012, when he had lodged his relevant claim (see paragraph 22 above). It also observed that the girl had been living with her foster family since January 2012 (see paragraph 34 above). On the basis of various expert reports and witness statements, the first-instance court further considered that V.’s immediate transfer to her father’s care could have detrimental psychological consequences for her and thus would not be in her interest (see paragraphs 35, 39-41 above). These findings were further upheld by higher courts (see paragraphs 44 and 45 above).
88. Having examined the relevant courts’ decisions, the Court finds no reason to doubt that they were based on V.’s best interests.
89. It is relevant, in the above connection, that the contact between the applicant and his children was lost at some point in 2009, when his relations with Ms Ye. broke down. By the time when the domestic courts had to adjudicate on the applicant’s claim for V.’s transfer into his care, the contact between the applicant and his daughter had remained lost for four years (see paragraphs 33 and 38 above). Moreover, their ties were severed at the very early stage of V.’s life, when she was an infant, with the result that the child did not remember her father (see paragraph 34 above). It is relevant that during that entire period, the applicant does not seem to have made any attempts to obtain access to the children or to resume contact. On the assumption that the applicant was unable to maintain his contact with the children because of the tension in his relations with Ms Ye., as alleged by him (see paragraph 67 above), the Court notes that at that stage the applicant had taken no steps to have his parental status formally recognised in law or to seek assistance from the childcare authorities or domestic courts with a view to arranging access and determining his contact sessions with the children.
90. Moreover, as it was established by the domestic courts, it was in March 2010 that the applicant found out about the children’s removal from their mother and their placement in public care. Yet, it was not until May 2012, more than two years later, that he lodged a court claim seeking formal recognition of his parental status and the children’s transfer to his care, at which time V. was already living in a foster family. The applicant alleged that during that period he had not taken any formal steps, as he had trusted Ms Ye.’s statements that she had taken the children from the children’s homes, and he had attempted to settle the situation with her. The Court observes that those arguments were carefully examined by the first-instance court and rejected as unconvincing (see paragraph 33 above). The Court does not find the domestic courts’ assessment arbitrary or manifestly unreasonable.
91. In the light of the foregoing, the Court considers that it was the applicant’s own inaction that led to the severance of ties between him and his daughter and prompted the situation which he sought to resolve in the proceedings in question (compare Khusnutdinov and X, § 90; and Ilya Lyapin, § 54, both cited above, and compare and contrast Uzbyakov, § 124, cited above, and Omorefe, cited above, § 50).
92. As regards the applicant’s argument concerning a conflicting approach taken by the domestic courts in respect of his claim for K.’s transfer into his care, which had been granted, compared to his claim for V.’s transfer to his care, which had been refused (see paragraph 66 above), the Court observes that at the time when the relevant court decisions were taken, the children were not in comparable situations. Indeed, before ordering K.’s transfer into the applicant’s care, the relevant court observed, in particular, that good contact had been established between the boy and the applicant; that the latter had regularly visited the child in the children’s home; and that the child looked forward to his visits and was happy to see him (see paragraph 30 above).
93. In the proceedings regarding V.’s transfer into the applicant’s care, it was noted that the girl had not seen her natural father for four years and did not know him (paragraphs 33, 34 and 38 above). At the same time, the written and oral evidence examined by the domestic courts consistently showed she was well integrated into her foster family and was deeply attached to her foster parents, particularly her foster mother (see paragraphs 34, 35 and 39-41 above). That evidence also demonstrated that the girl’s previous experience, when she had been abandoned by her mother in a children’s home had traumatised her, with the result that for some time after her transfer to the foster family she had remained anxious and particularly sensitive to any situations involving separation from her new parents even for a short while. It was also shown that she genuinely feared being taken away from her foster parents and given to unknown third parties (see paragraph 40 above), and that sudden separation from her foster parents, whom the girl considered to be the only important adults in her life, would be very stressful for her (see paragraph 39 above). It is thus clear that V.’s immediate transfer into the applicant’s care could have traumatised her and compromised her psychological stability, and that at that stage it was not in the child’s best interests. In this connection, the Court notes that V. was vulnerable on account of her young age and previous traumatising experience, and thus the domestic courts were required to show particular vigilance in assessing her interests and in affording her increased protection.
94. It is also noteworthy that the domestic courts determined the applicant’s claim in the light of circumstances that prevailed at that time; they, however, made it clear that they might reconsider the situation should those circumstances change (see paragraph 44 above). The Court reiterates that the national authorities’ obligation to take measures to facilitate reunion is not absolute. The reunion of a parent with a child who has not lived for some time with that parent may not be able to take place immediately and may require preparatory measures to be taken (see Suur, cited above, § 94).It is important to note that the applicant retains parental authority in respect of V. and has parental rights under the domestic law, including contact rights (see paragraph 45 above). The facts of the case reveal that he was able to have contact arrangements between him and V. put in place by the national courts (see paragraph 47 above); at present, he has access to V. and can maintain contact with her. A practical and effective avenue thus remains open for the applicant to seek his daughter’s transfer into his care if he considers that the circumstances underlying the court’s refusal of his first claim have evolved (compare V.D. and Others v. Russia, cited above, § 118, where the national courts granted the natural parents’ second claim for their child’s transfer into their care, which they lodged after an adaptation period of one year during which they resumed and maintained contact with the child; compare also Suur, cited above, § 98).
95. Against this background, the Court considers that the domestic courts carried out a detailed and carefully balanced assessment of the entire situation and of V.’s needs in the light of the evidence available; they thoroughly considered the pertinent facts and gave due consideration to the child’s best interests. It further finds that the national courts provided “relevant and sufficient” reasons for their decisions, within their margin of appreciation.
96. As regards the decision-making process, the Court observes that the decision in question was reached following adversarial proceedings in which the applicant was placed in a position that enabled him to put forward all arguments in support of his claims. He was fully involved and legally represented in the relevant proceedings and was able to submit written and oral evidence. A number of witnesses were heard and several expert reports obtained. The court decisions provided extensive reasoning for their findings and addressed the arguments raised by the applicant. The Court is therefore satisfied that the domestic decision-making process was fair and provided the applicant with the requisite protection of his rights secured by Article 8 of the Convention.
97. The foregoing considerations are sufficient to enable the Court to conclude that the authorities’ refusal to order the immediate transfer of V. into the applicant’s care corresponded to her best interests, was taken within their margin of appreciation and was based on “relevant and sufficient” reasons.
98. There has accordingly been no violation of Article 8 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
99. The applicant also complained under Articles 6 and 13 of the Convention about the unsuccessful outcome of the proceedings regarding his claim for V.’s transfer to his care. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 2 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Paul Lemmens
Deputy Registrar President