Information Note on the Court’s case-law 228
V.D. and Others v. Russia – 72931/10
Judgment 9.4.2019 [Section III]
Respect for private life
Transfer of child back to biological parents after nine years in care of foster mother: no violation
Foster mother and children denied access to child following his transfer to biological parents after nine years in foster care: violation
Facts – The first applicant had been the appointed guardian of a child, who had several serious health conditions and whose parents had considered themselves unable to attend to his special needs. The remaining applicants had been or were the first applicant’s foster children. The child in question had been transferred to the first applicant’s care at the age of eight months and had lived with her for the first nine years of his life. The child was subsequently transferred back to his parents at their request.
Law – Preliminary issue: The first applicant was not biologically related to the child. Furthermore, she was no longer his guardian, with the result that she no longer had legal status to act on his behalf in judicial or other proceedings at domestic level. The child had been transferred to, and was now living with, his biological parents, who had full parental authority over him, which included, among other things, the representation of his interests. They had not authorised the first applicant to represent him before the Court. The first applicant did not therefore have standing to act before the Court on behalf of the child.
(a) Applicability – The relationship between a foster family and a fostered child who had lived together for many months could amount to family life within the meaning of Article 8 § 1, despite the lack of a biological relationship between them. The existence of family ties between the applicants and the child prior to his transfer to his natural parents was not in dispute between the parties. Indeed, although there was no biological link between them, the child had remained in the first applicant’s constant care from the age of eight months for the first nine years of his life. The other applicants, when still minors, had, at various times, been taken into the care of the first applicant, and had lived as a family with the child for periods ranging from one to seven years before he had eventually been transferred to his biological parents. Close personal ties between the applicants and the fact that the first applicant had assumed the role of the child’s parent had been acknowledged by domestic courts in various sets of proceedings. In such circumstances, the relationship between the applicants and the child constituted “family life” within the meaning of Article 8 § 1.
(i) Termination of the first applicant’s guardianship over the child and his transfer to his natural parent’s care – There was currently a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests had to be paramount. A child’s best interests might, depending on their nature and seriousness, override those of the parents. In particular, a parent could not be entitled under Article 8 to have such measures taken as would harm the child’s health and development. The parents’ interests nevertheless remained a factor when balancing the various interests at stake. Child interests dictated that the child’s ties with his or her family be maintained, except in cases where the family had proved particularly unfit. It followed that family ties might only be severed in very exceptional circumstances and that everything had to be done to preserve personal relations and, if and when appropriate, to “rebuild” the family. Article 8 imposed on every State the obligation to aim at reuniting natural parents with his or her child.
In the applicants’ case, the domestic authorities had been faced with a difficult choice between allowing the applicants, who at that time were the child’s de facto family, to continue their relationship with him or to take measures to bring about the boy’s reunion with his biological family. To that end, they had been called upon to assess and fairly balance the competing interests of the child’s parents and those of the applicants. They had also had to bear in mind that, in view of his special physical and psychological conditions, the child was particularly vulnerable. The domestic authorities had therefore been required to show particular vigilance in assessing his interests and to afford him increased protection with due regard to his state of health.
The child had spent the first nine years of his life in the first applicant’s care, a period during which she had remained the boy’s primary carer, having fully assumed the role of his parent. Albeit undoubtedly a considerable period of time, that factor could not alone rule out the possibility of the child’s reunification with his biological family. Indeed, effective respect for family life required that future relations between parent and child be determined in the light of all the relevant considerations and not by the mere passage of time.
It was true that the child’s parents had acquiesced to the appointment of the first applicant as his guardian. At the same time, they had never formally renounced their parental authority over their son; neither had they been restricted in, nor had they been deprived of, that authority. The domestic courts had established that although during the first eight years of the child’s life his parents had not maintained contact with him, they had nevertheless supported him financially and had accommodated the first applicant’s requests regarding, inter alia, his medicine and diet. They had remained present in their son’s life, with the result that the first applicant could not have realistically assumed that the boy would remain in her care permanently. Care orders were by their very nature meant to be temporary measures, to be discontinued as soon as circumstances permitted, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child.
The domestic courts had carefully assessed the child’s best interests, with due regard to his state of health and his needs. In various sets of court proceedings, they had noted, in particular, the first applicant’s attachment and genuinely caring attitude towards the child, and her proactive approach in taking care of him and addressing his health issues, which had ensured progress in his physical and psychological development and overall improvement of his conditions. As regards the biological parents, initially the authorities had had doubts as to whether they were fit and capable of securing their son’s needs. In particular, the authorities had pointed to the lack of personal contact between them and had urged them to take a more responsible attitude regarding their parental obligations. In that connection, the courts had rejected their first claim for the boy’s transfer to their care, noting that such an immediate transfer could traumatise him and compromise his health, and that an adaptation period was necessary for him to get used to his natural parents. In the subsequent proceedings, however, the courts had found that the parents were fit to raise him. It was noteworthy that by that time the contact arrangements between the child and his parents had been in place for a year. When taking that decision, the domestic courts had satisfied themselves, with due regard to written evidence, including psychological reports, and witness statements, that his parents had re-established their relations with him; that they could adequately understand his psychological particularities, emotional state, needs and capabilities; that they had appropriate living conditions for the child; and that the latter felt calm and comfortable with them.
When ordering the child’s transfer to his biological parents and the termination of the first applicant’s guardianship over him, the domestic authorities had acted within their margin of appreciation and in compliance with their obligation under Article 8 to aim for the reunification of the child with his parents. They had provided “relevant and sufficient” reasons for the measure complained of. Whilst the Court acknowledged the emotional hardship that that decision must have caused the applicants, their rights could not override the best interests of the child. The first applicant’s arguments had been addressed and had received reasoned replies. The Court was satisfied that the decision-making process had been fair and had provided the applicants with sufficient safeguards of their rights under Article 8. The interference with the applicants’ family life had been “necessary in a democratic society”.
Conclusion: no violation (unanimously).
(ii) The applicants’ access to the child – The domestic courts had rejected the first applicant’s claims in respect of access to the child with reference to the absence of any legal link between them after her guardianship had been terminated; they also pointed out the lack of biological kinship between them, which pursuant to the Russian Family Code had ruled out any possibility for the first applicant to seek access to the child.
The Court had previously expressed its concern regarding the inflexibility of the Russian legal provisions governing contact rights. Those provisions set out an exhaustive list of individuals who were entitled to maintain contact with a child, without providing for any exceptions to take account of the variety of family situations and of the best interests of the child. As a result, a person who was not related to the child but who had taken care of him or her for a long period of time and had formed a close personal bond with him or her was entirely and automatically excluded from the child’s life and could not obtain contact rights in any circumstances, irrespective of the child’s best interests.
The texts of the court decisions revealed that the courts had made no attempt to assess the particular circumstances of the case, and, in particular, had not (i) taken into consideration the relationship that had existed between the applicants and the child prior to the termination of the first applicant’s guardianship over him; (ii) considered the question of whether, and why, contact between the applicants and the child might or might not be in his best interests; or (iii) given any consideration to the question of whether and why the interests of the child’s natural parents might or might not override those of the applicants. In fact, in its final and binding decision, the appellate court had limited itself to holding that the right to seek access to a child could in no circumstances be guaranteed to any individuals other than those listed in the Russian Family Code. The Court could not accept such reasoning as “relevant and sufficient” to deny the applicants access to the child. The relevant court decisions had not been based on the assessment of the individual circumstances of the case and had automatically ruled out any possibility for the family ties between the applicants and the child to be maintained.
The domestic authorities had failed in their obligation to fairly balance the rights of all individuals involved with due regard to particular circumstances of the case, which had amounted to a failure to respect the applicants’ family life.
Conclusion: violation (unanimously).
Article 41: EUR 16,000 jointly to the applicants in respect of non-pecuniary damage.
(See also Nazarenko v. Russia, 39438/13, 16 July 2015, Information Note 187; and Antkowiak v. Poland (dec.), 27025/17, 22 May 2018, Information Note 219)