Last Updated on August 22, 2019 by LawEuro
THIRD SECTION
CASE OF PETROV AND X v. RUSSIA
(Application no. 23608/16)
JUDGMENT
STRASBOURG
23 October 2018
FINAL
04/02/2019
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Petrov and X v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Vincent A. De Gaetano, President,
BrankoLubarda,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides,
JolienSchukking,
María Elósegui, judges,
andFatoş Aracı, DeputySection Registrar,
Having deliberated in private on 25 September 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 23608/16) 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”) bytwo Russian nationals, Mr Daniil ViktorovichPetrov (“the first applicant”) and X (“the second applicant”), on 25 April 2016. The Court decided of its own motion that the second applicant’s name should not be disclosed (Rule 47 § 4 of the Rules of Court).
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The applicants alleged, in particular, that the refusal to make a residence order in the first applicant’s favour in respect of the second applicant had violated their right to respect for their family life, and had, moreover, amounted to discrimination on grounds of sex.
4. On 13 September 2016 the application was communicated to the Government. On the same date the President decided to grant the case priority under Rule 41 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background information
5. The first applicant was born in 1975 and lives in St Petersburg.X, the second applicant,was born in 2012 and lives in the Moscow region.
6. The applicants are father and son. The first applicant lodged the application on his own behalf and on behalf of his son, who is a minor.
7. Until April 2013 the first applicant, his wife M. and their son X lived together in St Petersburg, where X had his residence registration and his continuing paediatric and specialist care for his chronic illness, and where he was on the waiting list for a local nursery school.
8. On 28 April 2013 M. left the first applicant and took X with her. According to M., she left the first applicant because of frequent disputes between them during which the first applicant had shouted at her. She left a note promising to contact him shortly. She went directly to her flat inNizhny Novgorod. She sent him an email on 30 April 2013,indicating her whereabouts.According to the first applicant, she did not leave an address and did not answer her mobile phone. The first applicant unsuccessfully searched for her in Nizhniy Novgorod, where she possessed a flat jointly with her parents, and in Moscow, where her parents lived at that time.
9. On 30 April 2013 the first applicant contacted the St Petersburg childcare authorities and asked for assistance in finding his son and returning him to his registered place of residence in that city.
10. Later on the same day the first applicant learned that M. and the second applicant were in Nizhniy Novgorod and on 17 May 2013 M. allowed him to visit them there.
11. Since that date M. has allowed the applicant to see his son on average six days per month for two hours each time. However, sometimes she has not allowed the first applicant to see his son for weeks at a time or has taken him out of town for long periods without informing the first applicant about his son’s whereabouts. For example, on 29 December 2013 the first applicant complained to the Nizhniy Novgorod childcare authorities that M. had taken X away to an unknown location and had cancelled a meeting that had been scheduled by mutual agreement for 27 December 2013.
B. Child residence proceedings
12. On 30 August 2013 M. instituted divorce proceedings before the Nizhegorodskiy District Court of Nizhniy Novgorod, and asked for a residence order in respect of X. She submitted, in particular, that she was on parental leave and was still breastfeeding her son. She was a part‑ownerof her parents’ flat where she and her son occupied a room. She also argued that she could create better conditions for the development of the child because she had a university diploma and good references from her previous place of work and also because she was calm and loving.
13. M. submitted an opinion by a psychologist, L., whom she and the first applicant had consulted once before their separationregarding their marital problems. L. noted that the first applicant’s supressed aggression towards M. and his wish to dominate her had been the cause of their marital issues. L. considered that in the event of divorce, it would be in X’s best interest to live with his mother.
14. The first applicant asked that M.’s request for a residence order be rejected and that X be returned from Nizhniy Novgorod to St Petersburg. He submitted that it would be better for the child if he and both his parents lived in St Petersburg for the following reasons. Firstly, considerable amounts of money would be spent by the first applicant travelling to Nizhniy Novgorod to visit his son. If the entire family lived in St Petersburg, that money could be better spent on the child’s needs. Secondly, living conditions in St Petersburg were better than in Nizhniy Novgorod. The first applicant had three spacious flats in St Petersburg and a dacha in the surrounding region, while in Nizhniy Novgorod M.’s family possessed only a small one-bedroom flat. St Petersburg provided better development and educational opportunities having more sports centres, better schools and universities, and world-famous cultural heritage. It also had better medical services, less air pollution and a lower crime rate than Nizhniy Novgorod. Thirdly, the second applicant had been born in St Petersburg and had lived there until taken away by M. He had his residence registration and his continuing paediatric and specialist care there and was on the waiting list for a local nursery school. Moreover, X’s paternal grandparents and other relatives lived in St Petersburg. If M. agreed to move back to St Petersburg, the first applicant proposed donating one of his three flats to her. He proposed an arrangement according to which X would live one third of every month with him and two thirds of every month with M. until the age of three, and half of every month with each of the parents after that. He argued that that arrangement would ensure that the second applicant maintained family ties with both parents.
15. Subsequently, the first applicant lodged a counterclaim, applying for a residence order in respect of the second applicant. He submitted that X’s young age alone could not justify his residence with his mother.He was older than one and a half years and there was no longer any need to breastfeed him. He submitted a copy of X’s medical records from which it was apparent that the breastfeeding had stopped in May 2013. The first applicant further submitted that he had a stable income from bank‑deposit interest while M. had no income and lived on the child maintenance that he paid her. He worked as a volunteer in a number of social NGOs and had flexible working hours and could therefore devote a lot of time to his son. Indeed, while they had lived together, he had spent as much time with the child and had been responsible for his everyday care as much as M. They had a very strong mutual attachment. Given his education and background, the first applicant could provide the child with a better upbringing. For example, he had teaching experience – in particular he had worked as a teacher in children’s summer camps.The first applicant further submitted that M. had abducted the child. She had restricted the first applicant’s contact with his son and had sometimes taken him away for long periods of time without informing the first applicant of his whereabouts. He vowed that if the child were to reside with him, he would not in any way hinder his contact with his mother.
16. The Nizhegorodskiy District Court refused to accept the first applicant’s application for a residence order, finding that he should have submitted it at the beginning of the proceedings. It also refused to accept X’s medical records in the file, finding that they were irrelevant and that M. was the only one who could tell whether she was still breastfeeding.
17. Lastly, the first applicant asked that the court appoint a psychological expert to examine him, M. and the second applicant to assess each parent’s suitability for raising the child and each parent’s relationships with him. The Nizhegorodskiy District Court rejected that application. It however asked the Nizhniy Novgorod and St Petersburg childcare authorities to assess the first applicant’s and M.’s living conditions and to express an opinion on the issue of the second applicant’s residence.
18. The first applicant’s parents applied to intervene as third parties and that the second applicant’s residence be set as St Petersburg. They submitted, in particular, that they had not seen their grandson since March 2013 because M. had refused to bring him to St Petersburg for a visit. They could not visit him in Nizhniy Novgorod because the first applicant’s mother was disabled and could not travel there, a distance of more than 1,000 km. The first applicant’s father could not leave his wife alone and unassisted and could not therefore go to Nizhniy Novgorod either. The decision to set the second applicant’s residence as Nizhniy Novgorod with his mother would therefore most likely mean that they would never be able to see him again. The Nizhegorodskiy District Court dismissed their application to intervene as third parties, finding that they could lodge a separate suit.
19. On 20 November 2013 the Nizhegorodskiy District Court adjourned the examination of the case until 20 February 2014, enjoining the first applicant and M. to attempt marriage reconciliation.
20. On 18 February 2014 the St Petersburg childcare authorities issued their opinion on the case, finding that it was in the second applicant’s best interest to live with his father. It noted that M. had taken the child away and had for some time concealed his whereabouts from the first applicant. She had restricted the first applicant’s contact with the child. She was unemployed and had no income except the child maintenance paid by the first applicant. Her only pecuniary asset was a share in her parents’ one‑bedroom flat in Nizhniy Novgorod. M.’s parents lived in Moscow. By contrast, the first applicant had a stable and sufficient income from bank‑deposit interest and did not need to work. He could therefore spend most of his time with the child. He owned a one-bedroom flat in St Petersburg and part-owned two other flats. The first applicant’s parents lived in St Petersburg. His mother was confined to a wheelchair, which restricted her ability to travel to Nizhniy Novgorod to see her grandson.
21. On 31 March 2014 the Nizhniy Novgorod childcare authorities also issued their opinion on the case, finding that it was in the second applicant’s best interest to live with his mother. It found that M. had good living conditions and received child maintenance from the first applicant and financial help from her parents. According to M., she was breastfeeding and was on parental leave devoting all her time to the child. She did not wish to return to St Petersburg. It was true that the first applicant also had good living conditions and had actively participated in the child’s upbringing and care. However, taking into account X’s young age, it was better for him to live with his mother for the time being. In reply to the applicant’s question, the Nizhniy Novgorod childcare authorities explained, in a letter of 12 May 2014, that a child was considered to be of “young age” until 18 years old and that “for the time being” meant until a change of circumstances, for example the child’s reaching the age of ten or fourteen.
22. On 4 April 2014 the Nizhegorodskiy District Court granted the divorce and M.’s application for a residence order in respect of the second applicant. The court firstly cited the opinion of 31 March 2014 of the Nizhniy Novgorod childcare authorities. It then noted that the family had lived in St Petersburg until M. had left her husband and moved to Nizhniy Novgorod taking the child with her. M. co-owned the flat in Nizhniy Novgorod where she currently lived with X; that flat had everything necessary for a small child. The District Court continued:
“It is apparent from [M.’s] submissions that she is still breastfeeding the child. [M.] is on parental leave and devotes all her time to the child. [M.]’s parents help her take care of and [financially] support the child. The [first applicant] pays [M.] 15,000 roubles [RUB] every month of his own accord. The child is on a waiting list for a nursery school.
The [first applicant]… takes an active part in his son’s life. He wants the child to live in St Petersburg, where he has created all necessary conditions for him.[M.] however categorically refuses to move to St Petersburg.
Both parents have positive character references and wish to live together with the child and participate directly in his upbringing.
In such circumstances, and based exclusively on the interests of the child and on the situation in which he is now, taking into account the child’s age, the court considers it opportune [целесообразно] to grant the residence order in respect of [X] to his mother [M.] for the time being.
The court reminds the parties that in accordance with Article 66 of the Family Code the parent residing separately from the child is entitled to maintain contact with the child and to participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development.
[The first applicant]’s … financial situation allows him to visit the child in Nizhniy Novgorod (according to [the first applicant’s] submissions his monthly income is about RUB 60,000).
The [first applicant]’s arguments that St Petersburg has less air pollution, a lower crime rate and better local infrastructure for children than Nizhniy Novgorod are legally irrelevant because the child’s place of residence is with his parents. In the present case the court grants the residence order to the mother [M.]; [M.’s] place of residence is currently in Nizhniy Novgorod.”
23. The first applicant appealed, repeating his previous arguments. He further complained that the District Court had not conducted an in-depth examination of the case. In particular, the District Court had not taken into account the opinion of 18 February 2014 of the St Petersburg childcare authority. It had not even cited the opinion, let alone explained why it disagreed with it. The only reason advanced by the District Court for its decision to grant the residence order to the child’s mother had been the child’s age. The child’s age was only one of the criteria mentioned in Article 65 of the Family Code (see paragraph 58 below) that the domestic courts were to take into account when deciding on a child’s residence arrangements. The District Court had not taken into account the other criteria mentioned in Article 65. Nor had it ordered a psychological expert examination to establish the child’s relationship with each parent and his best interests. Moreover, given that the second applicant had been more than one and a half years old at the time of the District Court’s decision, there had been no justification for automatically preferring residence with his mother over residence with his father. Such automatic preference of the mother over the father in a case where the father could provide better living and development conditions for the child had amounted to discrimination on grounds of sex. The first applicant also disputed some of the facts established by the District Court. In particular, the second applicant’s medical documents indicated that breastfeeding had stopped at the age of one. In any event, the official medical guidance recommended that breastfeeding be stopped at the age of one and a half years old at the latest. Moreover, M. was unemployed rather than on parental leave because she had not been in employment since 2009. In any event, M. had returned to work in December 2014 and since then the second applicant had been taken care of during the day by his maternal grandmother. By contrast, the first applicant had sufficient non-work income and a flexible schedule for his social-volunteer activities and could therefore take care of the child himself. Lastly, the first applicant argued that inherent in the concept of the child’s “best interests” was the right for a child not to be removed from one of his or her parents and retained by the other (he referred to Maumousseau and Washington v. France, no. 39388/05, 6 December 2007). M. had abducted the second applicant and had restricted the number and the length of the first applicant’s visits, including during the period after the District Court’s judgment. In total, during the previous nineteen months he had been allowed to see his son 122 times only. Lastly, the first applicant complained that the refusal to examine his counterclaim – that is his application for a residence order in his favour – had been unlawful.
24. On 2 October 2014 the first applicant complained to the Nizhniy Novgorod childcare authorities that M.had continued to restrict his contact with his son. In particular, on several occasions she had agreed to a visit but after he had travelled from St Petersburg to Nizhniy Novgorod she had changed her mind and refused to let him see his son.
25. On 10 March 2015 the Nizhniy Novgorod Regional Court upheld the judgment of 4 April 2014 on appeal. It held:
“Having analysed the entirety of the evidence in the casefile, including the child authorities’ opinions on the merits of the case, [the District Court] made a reasoned finding that granting a residence order in respect of [X] to the father was not in the interests of the child who, after the parents’ separation, had been brought up by his mother.
The court rejects [the first applicant’s] appeal submissions … which in essence convey a disagreement with [the District Court’s] assessment of evidence. It notes that a parent’s better financial or social situation or professional position are not decisive factors in deciding the question of the child’s residence …
In the present case [the District Court] made a thorough assessment of the evidence presented by the parties in support of their claims and objections. The court’s findings were based on the evidence in the casefile. There is no reason to doubt the impartiality of the examination and assessment of evidence …”
The court also added that the issue of the child’s contact with his grandparentswasto be examined in separate proceedings. Furthermore, the refusal to examine the first applicant’s counterclaim had not breached his rights as the domestic courts had to give a residence order to the parent who could better meet the needs of the child, irrespective of which of the parents had been the first to apply for a residence order in his or her favour and of whether the other parent had lodged a counterclaim or not.
26. On 13 March 2015 the Nizhniy Novgorod childcare authorities informed the first applicant that they had had a meeting with M. during which she had been told that she had to keep the child’s father informed about the child’s whereabouts and that the child was entitled to maintain contact with his grandparents and other relatives.
27. On 12 June 2015 the first applicant’s mother died. She had not seen her grandson since April 2013.
28. On 6 October 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the residence orderto the Presidium of that court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. It noted, in particular, that the main reason for granting the residence order to M. had been the second applicant’s young age. In such circumstances, the first applicant’s argument that it was in the child’s best interest to live with his father had been unconvincing. M.’s actions in taking the child away from St Petersburg had not amounted to abduction, a criminal offence under Article 126 of the Criminal Code. M. had not committed any criminal offence by moving to Nizhniy Novgorod with her son. Lastly, the judge found no evidence of discrimination.
29. On 27 October 2015 a judge of the Supreme Court of the Russian Federation refused to refer the case to the Civil Chamber of the Supreme Court for consideration, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
C. Contact proceedings
30. On 9 September 2015 M. moved to Moscow where she had found a job. X remained in Nizhniy Novgorod with his maternal grandmother.
31. On an unspecified date the first applicant applied to the Nizhegorodskiy District Court for contact rights, claiming that M. decidedwhimsically on the days when she would allow him to see his son without taking into account that he lived in another town, and that she occasionally prohibited any contact between them for long periods of time.
32. On 29 September 2015 the Nizhegorodskiy District Court allowed the first applicant’s application for an interim contact order. It determined the contact schedule as follows. While the main contact proceedings were pending, the applicants should be able to have contactfor no more than ten consecutive days starting on the first Wednesday of each month, from 10 a.m. to 1 p.m. and from 5 to 8 p.m., unless otherwise agreed between the parents. The contact should take place at X’s place of residence, in the mother’s presence, or in her absence if she agreed, and with the right to attend outdoor activities for children if X was in good health. The court also ordered that M. should inform the first applicant immediately by telephone ifXwere suffering from illness, and inform him two days in advance about any temporary change of residence. If the applicants had not seen each other for more than ten days, M. should ensure their communication through IP telephony for no less than five minutes every two days. M. should not hinder the first applicant’s attendance ofX’s medical procedures or educational and recreationalactivities in which X participated. She should also consult the first applicant in writing before taking any decisions concerning X’s medical treatment or education.
33. On 8 December 2015 the Nizhniy Novgorod Regional Court upheld the interim contact order on appeal.
34. On an unspecified date the Nizhegorodskiy District Court ordered an expert report to determine X’s relationship with each of the parents.
35. On 19 January 2016 a panel of psychology and psychiatry experts examined the applicants and M. and found that X was attached to both parents and was emotionally close to both of them. They were both involved in X’s education, although their educational methods were different: M. was milder, more permissive and more supportive, while the first applicant was more domineering and controlling and was not always capable of taking into accountX’s age and stage of development. X was more excitable and capricious in his father’s presence, while his mother’s presence had a soothing effect on him. According to X, his family included his mother and his maternal grandparents. The experts found that it was important that X should have stable residence arrangements; shared residence was not advisable at his age. At the same time, regular contact with the father was necessary for a balanced psychological development. Irregular contact with any of the parents would be detrimental to his relationship with that parent.
36. On 1 February 2016 M. and X moved to Moscow Region.
37. On 29 March 2016 the Nizhegorodskiy District Court found that the bailiffs service had not taken any actions to enforce the interim contact order of 29 September 2015 and ordered that the bailiffs service should redress the consequent breach of the first applicant’s rights.
38. It therefore ordered that M. consult the first applicant before taking any decisions concerning X’s medical treatment or education. It further determined the contact schedule as follows. The applicants should be able to have contact (i) on Saturdays and Sundays of even weeks, from 11 a.m. to 6 p.m. at X’s place of residence with the right to attend outdoor activities for children; (ii) for two weeks during the summer at the first applicant’s place of residence with the right to travel to other places within Russia. The schedule was valid until X’s seventh birthday and was to be revised afterwards.
39. On 8 July 2016 the Nizhegorodskiy District Court rejected the first applicant’s request for immediate enforcement of the contact order of 27 April 2016, finding that it did not belong to the category of cases where immediate enforcement was prescribed by law. There were no special circumstances justifying immediate enforcement, such as circumstances in which a delay in enforcement could lead to serious damage or make future enforcement impossible.
40. On 31 August 2016 the Petrogradskiy District Court of St Petersburg allowed anapplication for a contact order lodged by X’s paternal grandfather and grandaunt. It found that M. had been preventing them from seeing X. It held that they should have contact with X for five consecutive days every two months. In view of their advanced age and consequent inability to travel, contact should take place in St Petersburg where X should be brought either by M. or by the first applicant.
41. On 13 September 2016 M. was fined for hindering contact between the applicants in breach of the interim contact order of 29 September 2015.
42. On 14 September 2016 the Nizhegorodskyy District Court found that, despite its decision of 29 March 2016, the bailiffs service had still not taken any actions to enforce the interim contact order of 29 September 2015 and again ordered that the bailiffs should redress the first applicant’s rights.
43. On 25 October 2016 the Nizhniy Novgorod Regional Court upheld the contact order of27 April 2016 on appeal. It amended the contact schedule, holding that in addition to the contact time determined by the District Court, the applicants should also have contact (i) from 3 to 7 p.m. on X’s birthday each year at X’s place of residence; (ii) on the first Wednesday and third Friday of each month from 3 to 7 p.m. at X’s place of residence; and (iii) for half an hour every day by means of Internet communications.
44. On 13 March 2017 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the contact order of 27 April 2016, as upheld on appeal on 25 October 2016, to the Presidium of that court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
45. On 4 April 2017 the St Petersburg City Court amended the contact order of 31 August 2016 on appeal, finding that the contact schedule was too onerous for X and M.It held that X’s paternal grandfather and grandaunt should be able to have contact with him for seven days every six months at the grandfather’s place of residence.
46. On 18 April 2017 a judge of the Supreme Court of the Russian Federation refused to refer the first applicant’s cassation appeal against the contact order of 27 April 2016, as upheld on appeal on 25 October 2016, to the Civil Chamber of the Supreme Court, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
47. On 1 March 2018 the Zheleznodorozhniy Town Court of Moscow Region granted the first applicant the right to bring X to St Petersburg for ten additional days during the summer holidays. It also increased the time the applicants were to spend together on X’s birthdays.On 11 July 2018 the Moscow Regional Court quashed that judgment on appeal and rejected the first applicant’s request to amend the contact schedule, finding that the contact schedule established by the judgment of 27 April 2016 was valid until X’s seventh’s birthday and that there was no reason to change it before that date.
48. According to the Government, X now lives in Moscow Region with his mother. The first applicant is renting a flat in the vicinity of X’s new place of residence and regularly comes from St Petersburg to visit him. M. does not hinder the contact between the applicants. The first applicant pays child maintenance but does not give any other financial help.
D. Action for compensation for the excessive length of the residence and contact proceedings
49. On 27 April 2015 the first applicant, acting on his own behalf and on behalf of the second applicant, lodged a claim with the Nizhniy Novgorod Regional Court seeking compensation for the non‑pecuniary damage sustained as a result of the excessively long examination of the child residence dispute, and costs and expenses. He submitted, in particular, that the nature of the dispute had called for particular expedition on the part of the domestic courts. Indeed, the case had concerned a residence dispute in respect of a very young child who, owing to the delay in examining the case, had unlawfully resided with his mother for almost two years.
50. On 8 May 2015 a judge of the Nizhniy Novgorod Regional Court declared the claim lodged on behalf of the second applicant inadmissible. The court found that the second applicant had not been a party to the residence proceedings and could not therefore claim compensation for their allegedly excessive length.
51. The first applicant appealed, submitting that the residence proceedings had directly affected the second applicant by determining his residence arrangements. The length of the residence proceedings had therefore breached the second applicant’s rights.
52. On 8 July 2015 the Administrative Chamber of the Nizhniy Novgorod Regional Court upheld the decision of 8 May 2015 on appeal, finding that it had been lawful, well-reasoned and justified.
53. On 9 July 2015 the Nizhniy Novgorod Regional Court awarded the first applicant 30,000 Russian roubles (RUB – about 475 euros (EUR)) for non‑pecuniary damage and RUB 12,886.40 for costs and expenses against the Ministry of Finance. The court noted that the proceedings had lasted one year, six months and seven days before two instances. It found that the first applicant had not contributed to the length of proceedings. It further held that the case had been simple, no expert opinions had been ordered nor witnesses questioned. There had been important delays in the proceedings attributable to the District Court, in particular excessively long intervals between hearings, adjournments caused by repeated failures to inform the parties of the dates of scheduled hearings and substantial delays in serving the reasoned judgment of 4 April 2014 and the hearing record on the parties and in forwarding the parties’ statements of appeal to the Regional Court. Accordingly, the first applicant’s case had not been heard within a “reasonable time”. When deciding on the amount of compensation, the Regional Court noted that the case had concerned a child residence dispute and that the delay in its examination had created legal uncertainty as to the child’s residence and had hindered the exercise by the first applicant of his contact rights.
54. On 19 August 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the decision of 8 May 2015, as upheld on appeal on 8 July 2015, to the Presidium of that court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
55. On 30 September 2015 the Administrative Chamber of the Nizhniy Novgorod Regional Court upheld the judgment of 9 July 2015 on appeal, finding that it had been lawful, well-reasoned and justified.
56. On 27 November 2015 a judge of the Supreme Court of the Russian Federation refused to refer the first applicant’s cassation appeal against the decision of 8 May 2015, as upheld on appeal on 8 July 2015, to the Administrative Chamber of the Supreme Court, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
57. On 5 July 2017 the Nizhniy Novgorod Regional Court awarded the applicants RUB 30,000 (about EUR 475) in respect of non‑pecuniary damage and RUB 11,398.34 for costs and expenses against the Ministry of Finance for the excessive length of the contact proceedings. The court found, in particular, that the delay in determining a definite contact schedule between the applicants had resulted in insufficient contact and had undermined their personal bond.
II. RELEVANT DOMESTIC LAW
58. The Family Code provides that in the event of the parents’ separation, a child’s residence arrangements are determined by an agreement between them. If no such agreement can be reached, the child’s residence arrangements are determined by a court order, having regard to the child’s best interests and his or her opinion on the matter. In particular, the court must take into account the child’s attachment to each of the parents and siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation) (Article 65).
59. The parent residing separately from the child is entitled to maintain contact with the child and to participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development. The parents may reach a written agreement about the manner of exercise of parental authority by the parent residing separately from the child. If the parents are unable to come to an agreement, any dispute between them will be decided by a court after an application by the parents (or one of the parents), with the participation of the childcare authorities. If one of the parents does not comply with the court decision, measures provided by civil procedural law may be taken against him or her. If that parent systematically refuses to comply with the court decision, a court may, after an application by the parent residing separately from the child, transfer the child’s residence to that parent, taking into account the child’s interests and the child’s opinion (Article 66, as in force at the material time).
60. A child is entitled to maintain contact with his parents, grandparents, brothers, sisters and other relatives. The parents’ divorce or separation or the annulment of their marriage must have no bearing on the child’s rights. In particular, in the event of the parents residing separately, the child is entitled to maintain contact with both of them (Article 55 § 1).
61. A child is entitled to express his or her opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests (Article 57).
62. The Code of Civil Procedure provides that any time before the court issues its decision on the case the respondent may lodge a counterclaim which is to been examined simultaneously with the initial claim (Article 137).
THE LAW
I. SCOPE OF THE CASE
63. The Court notes that the applicants raised several new complaints under Articles 8 and 14 of the Convention in their reply to the Government’s observations. In particular, they complained that the contact schedule determined by the interim contact order had been discriminatory against the first applicant on grounds of sex and that there had been delays in the enforcement of the contact orders.
64. In the Court’s view, the new complaints raised by the applicants are not an elaboration of their original complaint lodged with the Court on 25 April 2016 and communicated to the Government on 13 September 2016. The Court will therefore not examine them (for a similar reasoning, see NurayŞen v. Turkey (no. 2), no. 25354/94, § 200, 30 March 2004; Melnik v. Ukraine, no. 72286/01, §§ 61-63, 28 March 2006; Kopylov v. Russia, no. 3933/04, §§ 109-10, 29 July 2010; Antonyuk v. Russia, no. 47721/10, §§ 93-94, 1 August 2013; andMalinin v. Russia, no. 70135/14, §§ 52-53, 12 December 2017).
II. ALLEGED ABUSE AND HINDRANCE OF THE RIGHT OF INDIVIDUAL APPLICATION AND ALLEGED FAILURE TO COOPERATE WITH THE COURT
65. The Government in their observations on admissibility and merits of the case requested that the Court declare the application inadmissible under Article 35 § 3 of the Convention as an abuse of the right of application on the grounds that the first applicant had concealed relevant information from the Court and had used offensive language in respect of the Representative of the Russian Federation to the European Court of Human Rights.
66. The applicants complained in reply that the fact that the Representative of the Russian Federation had concealed his close acquaintance with M.’s fatherand had distorted relevant facts had amounted to a lack of cooperation and a hindrance to the exercise of his right of individual petition under Article 34 of the Convention. The relevant Convention provisions read as follows:
Article 34
“The Court may receive applications from any person … claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
Article 35
“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
(a) the application is … an abuse of the right of individual application; …”
Article 38
“The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.”
A. Submissions by the parties
67. The Government submitted that the first applicant had abused his right of individual petition because he had not informed the Court of the contact orders that had been issued by the domestic courts and had not submitted a copy of the expert opinion of 19 January 2016, thereby presenting a one-sided version of the case. They argued that under Rule 47 § 7 of the Rules of Court the first applicant had an obligation to inform the Court of all circumstances relevant to the application, including about any important developments that had happened after the application had been lodged (they referred to the cases of Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007; Hadrabová and Others v. the Czech Republic (dec.), no. 42165/02, 25 September 2007; andČerveňáková v. the Czech Republic (dec.), no. 26852/09, 23 October 2012).
68. The applicants submitted at the outset that the thrust of their initial complaint had been granting the residence order to M.; they had not complained about the contact proceedings which were still pending when they submitted their observations.By concentrating excessively on the contact proceedings which were not the subject matter of the present application, the Government had attempted to distract attention from the residence-order proceedings to a side issue which, although relevant for the assessment of the main issue, could not supersede it.
69. The applicants further submitted that the contact order of 27 April 2016 had been issued after they had lodged their application with the Court and they could not therefore have enclosed it withtheir application form;they had however mentioned thatthere had been contact proceedings pending.The contact order had not become enforceable until 25 October 2016 and it was not still final when the applicants lodged their observations as the cassation appeal proceedings were still pending. The parties could not therefore rely on it in the proceedings before the Court. The applicants had however sent the interim contact order to the Court on 18 October 2016 and had mentioned in the same letter the existence of the contact order of 27 April 2016. Lastly, the expert opinion of 19 January 2016 was not directly relevant to the present application concerning the residence-order proceedings. Indeed, it had been made after the end of the residence-order proceedings in the framework of the pending contact proceedings. In any event, that expert opinion had confirmed that Xhad been very attached to his father.
70. The applicantsalso submitted that the Government’s former representative Mr Matyushkinwas biased. According to the applicants, M.’s father was Mr Matyushkin’s personal aikido trainer and a close friend. They submitted a photograph featuring Mr Matyushkin and M.’s father together and claimed that it had been taken at M.’s father’s birthday party in 2009. By omitting to disclose his personal connection to the case, Mr Matyushkin had misled the Court; the observations submitted by him should not be accepted therefore (Rule 44D of the Rules of Court). Those observations contained personal gratuitous attacks on the first applicant and many distortions of the facts of the case. Thus, Mr Matyushkin had concealed relevant information and documents, in particular those showing that M. had not complied with the contact orders and that the domestic authorities had acknowledged the bailiffs’ failure to ensure her compliance. The applicants later stated that they no longer insisted on not accepting those observations as they had been endorsed by the Government’s new representative Mr Galperin – who had submitted the Government’s further observations where he had continued to conceal and distort the facts of the case. The applicants also argued thatMr Matyushkin’s behaviour should be interpreted as amounting to a failure to participate effectively in the case (Rule 44C of the Rules of Court)and therefore a hindrance of the effective exercise of the right of petition (Article 34 of the Convention).
71. The Government submitted in reply that Mr Matyushkin was indeed acquainted with M.’s father but denied a close friendship between them. According to Mr Matyushkin, from 2004 to 2006 he had attended an aikido club in Nizhny Novgorod where he had been trained by M.’s father. However, their relationship had never been a close one and had been completely interrupted after Mr Matyushkin had moved to Moscow in 2008. He however conceded that he might have attended M.’s father’s birthday party in 2009 out of courtesy rather than because of any friendly feelings.Mr Matyushkin affirmed that he was not biased against the first applicant and that the first applicant’s allegations of bias were therefore unsubstantiated, dishonest and offensive. The Government further submitted that Mr Matyushkin had been the representative of a party in the proceedings before the Court.His status was closer to that of a barrister rather than a judge;the requirements of impartiality imposed on judges were not therefore applicable to him. The Government also submitted that it had effectively participated in the proceedings by submitting observations on all questions asked by the Court;the observations had been based on the information provided by competent domestic authorities. The fact that Mr Matyushkin was acquainted with M.’s father did not amount to a hindrance of the right of petition.Lastly, the Government argued that the first applicant’s unsubstantiated accusations against Mr Matyushkinhad amounted to an abuse of the right of individual petition (they referred toApinis v. Latvia (dec.), no. 46549/06, 20 September 2011).
B. The Court’s assessment
1. Alleged abuse of the right of application
72. The Court reiterates that under Article 35 § 3 of the Convention an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untruths. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references).
73. In the present case the applicants mentioned in their application form that the first applicant had applied for contact rights and that the proceedings were pending. On 18 October 2016 they submitted a copy of the interim contact order and informed the Court that the main contact order had been issued and appealed against. They then sent five more letters to the Court informing it of further developments in the case, including in the contact proceedings, and enclosing relevant documents. It is true that they did not submit a copy of the expert opinion of 19 January 2016 until after the Government had mentioned it in their observations on the admissibility and merits. That expert opinion however dealt with the issue of contact rather than the issue of residence and was made after the residence order complained of in the present case. It was indeed part of the contact proceedings casefile, which was still under examination at the material time. The contact orders and the expert opinion are therefore only relevant in order to get a broader view of the development of the applicants’ case, but are not as such the subject of the instant application; nor are they essential for deciding the case. There is therefore no basis for finding that the applicants submitted incomplete information concerning the very core of the case or failed to inform the Court of important developments with the intention of misleadingit.
74. The Court further reiterates that the use of particularly vexatious, insulting, threatening or provocative language by the applicant – whether this is directed against the respondent government, its Agent, the authorities of the respondent State, the Court itself, its judges, its Registry or members thereof – may be also considered an abuse of the right of petition within the meaning of Article 35 § 3 (a) of the Convention. However, it does not suffice that the applicant’s language is sharp, polemical or sarcastic; to be considered an abuse, it must exceed the limits of normal, civic and legitimate criticism. If after a warning by the Court the applicant ceases to use the contested expressions, expressly withdraws them or, better still, presents his or her excuses, the application may no longer be rejected as an abuse (see Miroļubovs and Others v. Latvia, no. 798/05, § 64, 15 September 2009, with further references).
75. In the present case the applicants informed the Court that the former Representative of the Russian Federation – who had submitted the Government’s observations on the admissibility and merits – was acquainted with M.’s father, which was confirmed by the Government.The applicants then expressed their doubts as to the Representative’s ability in such circumstances to act without bias against the first applicant. Those doubts were however expressed in a neutral form. The applicants did not use any vexatious, insulting, threatening or provocative language against the respondent State or its Agent. The applicants’ allegations did not therefore in the circumstances of the present case amount to an abuse of the right of petition within the meaning of Article 35 § 3 (a) of the Convention.
76. Accordingly, there is no basis for finding that the applicants abused their right of individual petition in the present case. In view of the foregoing considerations, the Court rejects the Government’s request for the application to be declared inadmissible under Article 35 § 3 of the Convention as an abuse of the right of application.
2. Alleged lack of cooperation and hindrance of the right of individual application
77. The Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant’s right of application.There is no indication in the present case that there has been any hindrance of the applicants’ right to individual petition, either in the form of interference with the communication between the applicants and the Court, or in the form of undue pressure placed on the applicants.
78. The alleged failure to submit relevant information and documents does not raise an issue under Article 34 (see Öcalan v. Turkey [GC], no. 46221/99, § 201, ECHR 2005‑IV, and Baysayeva v. Russia, no. 74237/01, § 168, 5 April 2007).Article 34 is a lexgeneralis in relation to Article 38, which specifically obliges States to cooperate with the Court, and in particular to submit information which is crucial to the establishment of facts (see Baysayeva, cited above, §§ 161-64 and 168). In so far as the applicants’ allegations may be interpreted in substance as a complaint that the Government failed to comply with their obligations under Article 38 of the Convention, the Court notes that the Government submitted all information and documents that were relevant for a proper and effective examination of the application.
79. Having regard to the above, the Court is not persuaded that there is sufficient basis on which to find any hindrance of the right of individual petition in the present case or any failure to cooperate with the Court. Accordingly, the respondent State has not breached its obligations under Articles 34 or 38 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
80. The applicants complained that the granting of a residence order in respect of the second applicant in favour of his mother had violated their right to respect for their family life. They 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
81. As regards the applicants’ complaint that the allegedly excessive length of the residence-order proceedings had resulted in the de facto determination of the issue, the Government submitted that the first applicant had been awarded compensation for the delays in the proceedings. His rights had therefore been redressed at the national level.
82. The Court considers that the question of whether the applicants may still claim to be victims of a violation of Article 8 of the Convention in respect of the alleged length of the residence-order proceedings is closely linked to the merits of the complaint under Article 8 of the Convention. The Court therefore decides to join this matter to the merits.
83. The Government did not contest that the first applicant had standing to lodge an application on behalf of his minor son. Given that the first applicant has parental authority in respect of X, the Court finds that he has standing to act on his son’s behalf (compare Diamante and Pelliccioni v. San Marino, no. 32250/08, § 147, 27 September 2011, and Z. v. Slovenia, no. 43155/05, § 116, 30 November 2010; and compare and contrast Eberhard and M. v. Slovenia, nos. 8673/05 and 9733/05, §§ 88-90, 1 December 2009 (with further references), and K.B. and Others v. Croatia, no. 36216/13, §§ 109-10, 14 March 2017).
84. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Submissions by the parties
(a) The Government
85. The Government submitted thatthe decision to issue the residence order in favour of the mother had been lawful and had been based on the best interests of the child. They argued that it would be cruel to separate a very young child from his orher mother, especially if the mother were breastfeeding (they referred to the cases of P., C. and S. v. the United Kingdom, no. 56547/00, ECHR 2002‑VI, and Haase v. Germany, no. 11057/02, ECHR 2004‑III (extracts), both concerning the taking of newborn babies into public care). In the present case there had been no exceptional circumstances justifyingthe separationof X from his mother. Indeed, the mother’s living conditions had been suitable for a small child. She had been on parental leave, had devoted all her time to caring for X and, according to her own statement, had still been breastfeeding him. Her parents had been helping her in raising the child and the first applicant had been paying child maintenance.
86. The Government further submitted that before taking their decision the domestic courts had conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person concerned. Taking into account the child’s age and the opinion of the childcare authority, the domestic courts had decided that it would be in his best interests to live with the mother. The courts had taken into account that the first applicant’s income had been high enough to permit regular travel to visit his son. The courts had considered irrelevant the fact that St Petersburg had been less polluted, had had a lower crime rate and hadhad better infrastructure for children, finding that the child had had to live with the mother, who had chosen to live in Nizhny Novgorod.
87. The Government also submitted that M. had not committed any unlawful acts when she had moved with her son to Nizhny Novgorod. She had not been obliged to live with the first applicant pending the divorce proceedings. She had moved into her own flat, the address of which had been known to the first applicant; she had not therefore gone into hiding with the boy, nor had she left Russia. She had not disobeyed any judicial residence order, as no such order had been issued or any judicial proceedings hadbeen pendingat the time when she had moved out. She had therefore been free to live with her child where she had wished. The present case was therefore different from the case of HromadkaandHromadkovav. Russia (no. 22909/10, December 2014), which had concerned international abduction of a child who should have been resident in the Czech Republic with her father pursuant to a court order. The present case was similar to the case of Petersen v. Germany ((dec.), nos. 38282/97 and 68891/01, 12 January 2006), where the Court had found that it had been in the child’s best interests to stay with his mother, who could not be prevented from moving abroad. The Government argued that in the present case too a prohibition on moving to another town would have violated M.’s freedom of movement guaranteed by Article 2 of Protocol No. 4 to the Convention. The first applicant could not have prohibited his son from moving outside St Petersburg as M. had been entitled to change residence in order to arrange her private and family life, to find work or to secure a promotion.
88. As regards the length of proceedings, the Government submitted that they had lasted for one year, six months and seven days.The length of the proceedings had therefore been shorter than in the cases examined by the Court (they referred to Ribić v. Croatia, no. 27148/12, 2 April 2015, where the proceedings had lasted for seven years and eight months; Mihailova v. Bulgaria, no. 35978/02, 12 January 2006, where the proceedings had lasted for about two years and a half and where the Court had found no violation of Article 8; and Diamante and Pelliccioni, cited above, where the proceedings had lasted for more than four years and ten months and where the decision had still been pending). In any event, it could not be said that the passage of time had resulted in a de facto determination of the matter, as by the end of the proceedings the second applicant had been only two years, nine months and twenty-one days old.
89. Furthermore, the Government submitted that contact between the applicants had been maintained all the time as M. had never seriously hindered contact between them or between the second applicant and his paternal grandparents. The childcare authorities had talked to M. several times and had explained to her that Xhad been entitled to maintain contact with his father, his paternal grandparents and other relatives. The domestic courts had moreover issued an interim order granting the first applicant contact rights pending the main contact proceedings. Enforcement proceedings had been instituted during which it had been revealed that M. had moved to Moscow Region. A new contact order had been subsequently made, taking account of an expert opinion on the second applicant’s relationship with each of his parents. A separate contact order had been made in respect of X’s paternal grandfather and grandaunt. M. had been fined for failure to comply with the contact orders. The authorities had therefore complied with their obligation to ensure that contact between X and his father and paternal relatives be maintained.
90. Lastly, the Government submitted that the first applicant had been able to present his case fully before the domestic courts. He had attended all hearings and been able to present evidence and make submissions. The St Petersburg and Nizhniy Novgorod childcare authorities had participated in the proceedings and had been asked to submit their opinions on the case.The domestic courts had examined both opinions and had decided to follow the opinion of the Nizhniy Novgorod childcare authorities. The first applicant had been able to contest that opinion. The domestic courts had also taken into account the opinion of the psychologist L., whom the applicant and M. had consulted before their separation. The first applicant’s request for a psychological expert examination had been rejected because the domestic courts had considered that they had already had sufficient material for making a decision on the case (in particular, opinions by the childcare authorities and by a psychologist).There had been no evidence in the case file that Xhad been attached to his father. In the Government’s opinion, the present case was similar to the case of Drenk v. the Czech Republic (no. 1071/12, 4 September 2014), where the Court had found that the domestic courts’ refusal to follow outdated expert recommendations or to order a new expert examination on the grounds that they had sufficient recent relevant information had not violated the procedural requirements of Article 8. In any event, it wasfor the domestic courts to assess the evidence before them. The Government further submitted that X had not been personally interviewed by the courts because in accordance with domestic law only the opinion of a child over ten years old had had to be taken into account (see paragraph 61 above). Xhad been less than two years old when the case hadbeen examined by the District Court and less than three years old at the time of the appeal hearing; it had therefore been impossible to interview him in court.
(b) The applicants
91. The applicants submittedthat the domestic courts had not provided relevant and sufficient reasons for their decision to grant the residence order in respect of X to the mother. The decision had been based on a widespread presumption that a child under ten years old should live with his or her mother. Given that the young child’s age had outweighed all other factors, the domestic courts had not considered it necessary to examine them.By holding that the first applicant’s arguments concerning better living conditions in St Petersburg – in particular, less air pollution, lower criminal rate and better infrastructure for child development – had been irrelevant, the domestic courts had failed to conduct an in-depth examination of the entire family situation and of all relevant factors.
92. Nor had the domestic authorities taken into account the fact that M. had unlawfully removed X from his place of residence unbeknownst to the first applicant. In such circumstances Article 8 required the domestic authorities to take measures with a view to reuniting the applicants. In cases where one parent had taken a child away, the presumption had been in favour of the prompt return of the child to the “left-behind” parent (they referred to HromadkaandHromadkova(citedabove, §§ 148-52)). In the applicants’ opinion, it was irrelevant that in the present case, in contrast to HromadkaandHromadkova, there had been no divorce or residence-order proceedings pending yet, or that M. had remained in Russia and had not removed X abroad. The only relevant circumstance was that M. had taken X away from his lawful place of residence against the first applicant’s will. By doing this, M. had obtained an advantage over the first applicant: by becoming a de facto resident parent, she had been able to have the residence order dispute examined by the courts of Nizhniy Novgorod Region, which was far away from the applicants’ place of residence. The applicants argued that M. had not been entitled to take a unilateral decision as to X’s place of residence pending the residence-order proceedings; that decision had to be taken by the parents together or, in theevent of a dispute, by a court through an interim order. The domestic authorities had not however taken any measures to return X to his lawful place of residence; indeed Russian law did not provide for any legal mechanism to deal with situations where one of the parents removed a child from his or her lawful place of residence without the other parent’s consent.By taking Xfrom St Petersburg to Nizhniy Novgorod, more than 1,000 kilometres away (that is a distance comparable to the distance between Paris and Berlin, Madrid or Prague and considerably longer than the distance between Paris and London, Berlin and Vienna or Vienna and Prague), M. had acted contrary to X’s interests as she had separated him from his father. The first applicant had moreover had to spend a lot of money on travel expenses to visit his son, although that money could have been better spend on X’s material and educational needs.
93. The applicants claimed that the Government’s observations gave the impression that Russian authorities had considered the child to be the mother’s property. Thus, they had put considerable emphasis on the mother’s freedom of movement and her right to take the child with her wherever she had gone, irrespective of the child’s best interests. The Court had however found in Maumousseau and Washington, cited above,that a minor had had the right not to be removed from one of his or her parents and retained by the other. M. had been indeed free to move to Nizhniy Novgorod or anywhere else; her freedom of movement had not however given her any right to take X with her without the first applicant’s consent.
94. The applicants also submitted thatM. had also acted contrary to X’s interests by hindering contact between the applicants, and in particular by occasionally taking X away for long periods of time without informing the first applicant about his whereabouts. The domestic authorities had not taken any measures to stop her unlawful behaviour except fining her once. Nor had they taken her unlawful behaviour and her failure to act according to X’s interests into account when deciding on the residence order (contrast Diamante and Pelliccioni,cited above, §§ 22, 28, 38, 50 and 77). M. had continued to hinder contact between the applicants even after the contact orders had been issued. She had moreover moved to Moscow in September 2015, leaving X in Nizhniy Novgorod with his grandmother in breach of the residence order according to which Xhad had to live with the mother. As a result, Xhad lived separately from both parents for more than four months because M. had given preference to her career over the child’s interests. By contrast, the first applicant wouldhave been able to spend a lot of time with X because he had not been in employment and had had a flexible schedule for his social‑volunteer activities. He had moreover offered to create conditions under which Xcould live near both parents, in particular by donating a flat in St Petersburg to M. He had therefore never intended to separate X from his mother; on the contrary, he had wanted him to be brought up by both parents equally.
95. The applicants submitted that the present case was different from the case of Petersen (cited above) on which the Government relied (see paragraph 87above) and which had concerned contact rights rather than a residence order. In the Petersen case the child had not wished to see his fatherbecause of his behaviour. The contact between them had been therefore found to be detrimental to the child’s interests. In the present case, by contrast, X had been very attached to his father, which an expert examination would have shown had the domestic courts allowed the first applicant’s application in that connection.
96. Furthermore, the applicants submitted that the domestic courts’ procedural approach had not permitted the first applicant to put forward all his arguments. Firstly, the domestic courts had refused to examine the first applicant’s application for a residence order for no valid reason. Secondly, they had rejected his request for a psychological examination to determine X’s relationship with each of his parents. Given X’s young age, a psychological expert examination would have been the only way to have him “heard”, in order to assess his attachment to each of the parents. The opinion of the psychologist L., to whom the Government had referred (see paragraph 90above), had not been cited by the domestic courts in their decisions. Her qualifications had never been checked and she had been moreover subsequently dismissed from her job for unethical behaviour. As regards the opinion of the Nizhniy Novgorod childcare authorities, it had not been made by a psychologist and had not assessed X’s relationship with his parents, referring to his age as the only grounds for the finding that it hadbeen in X’s interest to live with his mother. Thirdly, the domestic courts had also rejected the first applicant’s application to include in the file X’s medical records showing that M. had no longer been breastfeeding him. They had moreover refused to hear submissionsfrom X’s paternal grandparents about M.’s hindering X’s contact with his paternal relatives. Nor had they taken into account the opinion of the St Petersburg childcare authorities that it would be in X’s best interest to live in St Petersburg with the father.
97. Lastly, as regards the length of the proceedings, the applicants submitted that the domestic courts had acknowledged the delays in the residence-order proceedings and that the first applicant had not in any way contributed to them. Given that while the proceedings had been pending X had been unlawfully retained by his mother far from his father and his usual place of residence, it had been particularly important that the domestic authorities had exercised exceptional diligence when dealing with the case in view of the risk that the passage of time could have resulted in the de facto determination of the matter. Indeed, the appellate court had found that granting a residence order to the father had not been in X’s interest because he had been brought up by his mother after the parents’ separation. The mother had therefore benefited from her unlawful actions in taking X away and from the delays in the residence-order proceedings.
2. The Court’s assessment
(a) General principles
98. In determining whether the refusal of custody or access was justified under Article 8 § 2 of the Convention, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their(see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003‑VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003‑VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular 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 v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk v. Russia, cited above, § 134).
99. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Sahin, cited above, § 65, and Sommerfeld, cited above, § 63).
100. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Sahin, cited above, § 66, and Sommerfeld, cited above, § 64).
101. The Court cannot satisfactorily assess whether the reasons advanced by the domestic courts were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision‑making process, seen as a whole, was fair (see Sahin, cited above, § 68, and Sommerfeld, cited above, § 66). While Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, the applicant has been involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests (see Z.J. v. Lithuania, cited above, § 100, with further references).
102. Lastly, the Court considers that in conducting its review in the context of Article 8 it may also have regard to the length of the local authority’s decision-making process and of any related judicial proceedings. In cases of this kind there is always the danger that any procedural delay will result in the de facto determination of the issue submitted to the court before it has held its hearing. And an effective respect for family life requires that future relations between parent and child be determined solely in the light of all relevant considerations and not by the mere passage of time (see W. v. the United Kingdom, 8 July 1987, § 65, Series A no. 121; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003; and Z.J. v. Lithuania, cited above, § 100).
(b) Application to the present case
103. The Court considers that the decision to make a residence order in favour of the mother amounted to an interference with the applicants’ right to respect for their family life (see Antonyuk, cited above, § 119; 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 X and M. It remains to be examined whether the interference was “necessary in a democratic society”.
104. 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 X would live; it did not affect the legal relationship between the applicants, and nor did it take away the first applicant’s parental authority. It is also significant that the first applicant was subsequently granted contact rights.
105. 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 the domestic law does not provide for the possibility to make a shared residence order (see Antonyuk, cited above, § 121).
106. 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 (see the case-law cited in paragraph 98 above). 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 ElitaMagomadova v. Russia, no. 77546/14, § 63, 10 April 2018, with further references).
107. 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.
108. The Court will first examine the applicants’ argument that no expert or other specialist assessment had been performed to establish X’s attachment to each of the parents, and that X had not been therefore duly “heard” on the issue of his residence. The Court reiterates that children are entitled to be consulted and heard on matters affecting them. In particular, as children mature and, with the passage of time, become able to formulate their own opinions, the courts should give due weight to their views and feelings as well as to their right to respect for their private life (see N.Ts. and Others v. Georgia, no. 71776/12, § 72, 2 February 2016). The situation is different with very young children who are still unable to form or express their wishes. The Court has found in the case of Sahin (cited above, §§ 72-75) that it had been acceptable not to interview a five-year-old child in court, having due regard to her age and maturity. When reaching that finding, the Court took into account that an expert had been appointed who had met the child and both parents on several occasions and had analysed the child’s attitude to both parents, as well as whether it hadbeen possible to have her heard in court. In the present case, by contrast, no expert opinion was ever sought on such important questions as X’s relationship with each of his parents, each parent’s parenting abilities or whether it was possible, given his age and maturity, to interview him in court, if need be with the assistance of a specialist in child psychology.
109. The Court is not convinced that in this particular case the opinion given by the childcare authorities could have replaced an expert assessment in the circumstances of the present case. There is no evidence in the casefile that the specialistsof the Nizhniy Novgorod childcare authorities,on whose opinion the courts relied, ever met X and assessed his attitude to each parent. Indeed, their report was limited to assessing M.’s living conditions and financial situation and to stating that M. was on parental leave and breastfeeding (see paragraph21above). Moreover, the case file also contained an opinion by the St Petersburg childcare authorities which found that it was in X’s best interests to live with his father (see paragraph20 above). The domestic courts did not explain why they preferred the opinion of the Nizhniy Novgorod childcare authorities to that of the St Petersburg childcare authorities.
110. The Government also referred to the opinion by the psychologist L. (see paragraph 13above). However, the domestic courts did not rely on that opinion in their decisions. In any event, that opinion was made on the basis of a single consultation prior to the parents’ separation. That consultation concerned difficulties in the marital relationship between the first applicant and M. rather than their relationship with X.The court is therefore not convinced that it could have replaced an expert examination devoted specifically to the issue of child residence and consequently to establishing X’s attachment to each of his parents and their parenting abilities.
111. The Court further notes that the domestic courts refused to take into account items of evidence advanced by the applicant in support of his position. Firstly, the domestic courts refused to examine his application for a residence order in his favour and the arguments raised therein on the grounds that it had been submitted too late (see paragraph 16 above), although under domestic law a counterclaim could have been submitted at any moment before the court issued its decision (see paragraph 62 above). Secondly, the domestic courts refused to admit in evidence and examine X’s medical records from which it was apparent that the breastfeeding had stopped. Nor did the appeal court reply to the first applicant’s argument, supported by documentary evidence, that M. was no longer on parental leave and had resumed work. Thirdly, the domestic courts rejected the first applicant’s arguments – supported by the St Petersburg childcare authorities –relating to better living conditions and better opportunities for child development in St Petersburg, without an assessment on the merits as irrelevant.
112. From the information considered above, the Court concludes that the domestic courts’ examination of the case was not sufficiently thorough. It follows that the decision-making process was deficient and did not therefore allow the best interests of the child to be established. By not adhering to the principles of proportionality and effectiveness, the authorities did not fulfil their duty to secure the practical and effective protection of the applicants’ rights as is required by Articles 1 and 8 of the Convention.The Court accordingly finds that the domestic authorities did not adduce relevant and sufficient reasons for their decision to make a residence order in favour of the child’s mother (compare and contrast Leonov v. Russia, no. 77180/11, §§ 69-76, 10 April 2018, and Malinin, cited above, §§ 67-78).
113. In those circumstances it is not necessary to examine whether the alleged delays in the residence-order proceedings resulted in the de facto determination of the case. Nor is it therefore necessary to examine the Government’s objection relating to the loss of a victim status in respect of that aspect of the complaint under Article 8.
114. The Court finds that notwithstanding the domestic authorities’ margin of appreciation, the interference was not proportionate to the legitimate aim pursued. There has therefore been a violation of Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
115. The first applicant further complained that the decision to grant a residence order in respect of the second applicant in favour of his mother amounted to discrimination on grounds of sex. He relied on Article 14 of the Convention, taken in conjunction with Article 8. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Submissions by the parties
1. The first applicant
116. The first applicant submitted that X’s young age had been the only reason for granting a residence order to the mother. He claimed that in so far as residence orders in respect of children under ten years old were concerned, there existed an assumption in favour of mothers which was very difficult to rebut.That assumption was based on gender stereotypes which prevailed in Russia, in particular the perception of women as primary carers and men as primary breadwinners. He relied on an analytical note of 23 March 2017 by the Institute for Law and Public Politics, an NGO, which showedthat residence orders in respect of children of all ages were granted to the mother in 71.43% of cases and to the father in 28.57% of cases; while residence orders in respect of young children were given to the mother in 97.22% of cases. The first applicant further submitted that the analysis of case-law produced by the Government (see paragraph 98below) also showed that a residence order was given to the father in exceptional circumstances only, in particular where the mother had negative character references. Fathers and mothers were treated equally only in respect of children older than ten years – the age starting from which the courts had to take the child’s opinion into account.
117. The first applicant argued that as far as the role of taking care of the child during the period corresponding to parental leave – that is to say on expiry of the period of maternity leave, which was intended to enable the woman to recover from childbirth and to breastfeed her baby if she so wished – was concerned, men and women were “similarly placed” (seeKonstantin Markin v. Russia, no. 30078/06, § 132, 7 October 2010).
2. The Government
118. The Government submitted that the decision to grant a residence order in respect of the second applicant in favour of the mother had been based on the best interests of the child. There had therefore been no discrimination. The Government referred to the case of Tiemann v. France and Germany ((dec.), nos. 47457/99 and 47458/99, 27 April 2000)where the decisions to grant a residence order to the mother had been found to be in the bests interests of the children and therefore compatible with Article 8 of the Convention. Like in Tiemann, the first applicant in the present case had been trying to separate the second applicant from his mother. In such circumstances the domestic courts had achieved a balance between the interests of the first applicant, the second applicant and M., in particular by granting the first applicant contact rights. Despite the fact that the second applicant lived in another town, the first applicant could still visit him and maintain contact by other means.
119. The Government also referred to the case ofGuichard v. France ((dec.), no. 56838/00, 2 September 2003)where the removal of the child by the mother had not been considered to be “wrongful” within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction and where the Court had found that Article 8 of the Convention had not therefore imposed positive obligations on the French authorities to secure the return of the child.
120. Lastly, the Government submitted thatboth parents had equal rights under Russian law; the mother had not been entitled to any preferential treatment.When deciding on a residence order,the courts had to take into account the child’s attachment to each of the parents and siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them had for creating conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation) (see paragraph 58 above). There were many examples in domestic practice of a residence order being granted in favour of the father. The Government produced copies of eleven judgments granting a residence order in favour of the father, of which three concerned children under five years old.The Government argued that those cases showed that the practice of the domestic courts was not discriminatory.
B. The Court’s assessment
1. Admissibility
121. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case-law (see, among many other authorities, E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008).
122. It has not been disputed between the parties that the case falls within the ambit of Article 8 of the Convention. Indeed, the Court has found that the contested decisions amounted to an interference with the applicants’ right to respect for their family life (see paragraph 103 above). It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case
123. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
2. Merits
124. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, and Konstantin Markin v. Russia [GC], no. 30078/06, §§ 125 and 126, ECHR 2012 (extracts)).
125. Very weighty reasons need to be put forward before a difference in treatment on the grounds of sex can be regarded as compatible with the Convention (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263; Zaunegger v. Germany, no. 22028/04, § 51, 3 December 2009; and Buchs v. Switzerland, no. 9929/12, § 67, 27 May 2014).
126. In the case at hand, the first applicant complained that he had been discriminated against on account of his sex, in breach of Article 14 of the Convention taken in conjunction with Article 8, in that the residence order in respect of the second applicant had been made in favour of his mother.
127. The Court observes at the outset that Russian law does not make any distinction between the sexes, both men and women being equally eligible to obtain a residence order in respect of their child, irrespective of the child’s age. The domestic courts must evaluate all the relevant circumstances and the parties’ parenting abilities in order to find the most appropriate solution in the child’s best interests (see paragraph 58 above). The first applicant, however, argued that the decisions in his case had been based on a general assumption prevailing in Russia that it was in the interest of children under a certain age to reside with the mother rather than the father.
128. The Court notes that the residence order was based on an assessment of the best interests of the child in the particular circumstances of the case, rather than on a general assumption in favour of mothers. In particular, the domestic courts found that M. was on parental leave and was still breastfeeding the second applicant. They considered that, given X’s young age and the fact that after the parents’ separation he had been brought up by the mother, it would be in his best interest to remain living with her.
129. The Court is therefore satisfied that, as regards the examination of the application for a residence order, no difference of treatment on account of sex existed either in the law or in the decisions applying it in the applicant’s case.
130. There has accordingly been no violation of Article 14 of the Convention, taken together with Article 8.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
131. 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
132. The applicants claimed just satisfactionin respect of non‑pecuniary damage. They left the amount to the determination of the Court
133. The Government submitted that the finding of a violation would constitute sufficient just satisfaction. The applicants had already received compensation for the delays in the residence-order proceedings.
134. The Court awards the applicant 12,500 euros (EUR) in respect of non‑pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
135. The first applicant also claimed EUR 602 for the costs and expenses incurred before the domestic courts, in particular travel and postal expenses, and EUR 1,205 for legal consultation fees, stationery, postal and translation expenses incurred before the Court. He submitted payment invoices covering all the expenses mentioned above.
136. The Government submitted that the first applicant had not submitted a copy of the legal-fees agreement; there was therefore no evidence that he was under a legal obligation to pay legal fees. As regards the legal costs incurred before the domestic courts, the Government submitted that no compensation could be awarded for costs and expenses which would have been incurred irrespective of whether the proceedings in issue had violated the Convention (they referred to P., C. and S. v. the United Kingdom, cited above). They added that the stationery expenses were not relevant to the subject-matter of the case. Lastly, they admitted that postal and translation costs in the amount of EUR 415 should be reimbursed.
137. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court has found that that the domestic courts’ examination of the child residence case was not sufficiently thorough and the decision-making process was deficient. There is no causal link between these violations and the costs claimed for attending and preparing for the domestic proceedings, in which the applicants would have participated in any event (compare P., C. and S. v. the United Kingdom, cited above, § 148).The Court therefore rejects the claim for costs and expenses in the domestic proceedings.
138. As regards costs and expenses for the proceedings before the Court, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the first applicant the sum of EUR 1,000.
C. Default interest
139. 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
1. Decides, unanimously, to join to the merits the respondent Government’s objection concerning the loss of the victim status in respect of the allegedly excessive length of the residence-order proceedings, and declares the application admissible;
2. Holds, unanimously, that the respondent State has not failed to comply with its obligations under Articles 34 and 38 of the Convention;
3. Holds, by four votes to three,that there has been a violation of Article 8 of the Convention;
4. Holds, unanimously,that there has been no violation of Article 14 of the Convention;
5. Holds, by four votes to three,
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 12,500 (twelve thousand five hundred euros) to both applicants jointly, plus any tax that may be chargeable, in respect of non-pecuniary damage, to both applicants jointly;
(ii) EUR 1,000 (one thousand euros) to the first applicant, plus any tax that may be chargeable to the first applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses, unanimously,the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 23 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Vincent A. De Gaetano
DeputyRegistrar President
________________
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of JudgesDedov,Lubarda and Poláčková is annexed to this judgment.
V.D.G.
F.A.
JOINT DISSENTING OPINION OF JUDGES DEDOV, LUBARDA AND POLÁČKOVÁ
1. We regret that we cannot agree with the conclusion of the majority regarding a violation of Article 8 of the Convention in the present case. We believe that the analysis made by the majority is contrary to the Court’s established case-law, and more specifically to its conclusion in the recent, identical case of Leonov v. Russia (no. 77180/11, 10 April 2018). We are of the view that in the present case, as in Leonov, the decision at the domestic level was reached following adversarial proceedings in which the applicant was placed in a position enabling him to put forward all arguments in support of his application for a residence order in his favour, and in which he also had access to all relevant information that was relied on by the courts. Therefore, the decision-making process was fair in so far as it allowed the applicant to present his case fully and the reasons advanced by the domestic courts were relevant and sufficient. Accordingly, by making a residence order in favour of the mother, the domestic courts did not overstep their wide margin of appreciation (see paragraphs 74 and 76 of the Leonov judgment).
2. In particular, having examined the impugned decisions of the domestic courts (see paragraphs 22 and 25 of the present judgment), we find no reason to doubt that they were based on the best interests of the child. The domestic courts established that M. was on parental leave and was still breastfeeding the second applicant. They considered that, given the second applicant’s young age and the fact that after his parents’ separation he had been brought up by his mother, it would be in his best interests to remain living with her. There is nothing to indicate that the findings reached by the domestic courts, which had the benefit of direct contact with all the persons concerned, were unreasonable and thus fell outside their wide margin of appreciation. Given that the national authorities are in principle better placed than an international judge to evaluate the evidence before them, it is not the Court’s task to take their place in establishing and assessing the facts and deciding what is in the best interests of the child in the present case (see, for similar reasoning, Leonov, cited above, § 72).
3. As regards the issues of hearing the child in court and obtaining an expert opinion on his relationship with each of the parents, the Court observes that, as a general rule, it is for the national courts to assess the evidence before them, including the means of ascertaining the relevant facts. It would be going too far to say that the domestic courts are always required to interview a child in court or involve a psychological expert in issues concerning a child’s residence, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned (see Sommerfeld v. Germany [GC], no. 31871/96, § 71, ECHR 2003‑VIII, and Sahin v. Germany [GC], no. 30943/96, § 73, ECHR 2003‑VIII, both cited in the judgment).
4. Although the domestic authorities decided that a psychological expert opinion was not necessary (see paragraph 17 of the judgment), they referred to the childcare authorities’ opinion, issued after a visit to M.’s place of residence, and also examined the opinion of a psychologist who had seen the family before the separation (see paragraphs 21 and 90 of the judgment). In these circumstances we are not persuaded that the failure to obtain an expert report on the child’s relationship with each of the parents constituted a serious flaw in the proceedings (see the conclusion of the majority in paragraph 110 of the judgment).
5. The majority also criticised the domestic courts for giving no explanation as to why they did not take into account the opinion of the St Petersburg childcare authorities (and rejected the first applicant’s arguments based on that opinion) concerning the supposedly better living conditions and better opportunities for child development in St Petersburg (see paragraphs 109 and 111 of the judgment). We believe that this argument is not sufficient to find a violation of Article 8 of the Convention. In Leonov, the Court was satisfied that the decision at the domestic level had been reached following adversarial proceedings in which the applicant had been placed in a position enabling him to put forward all arguments in support of his position (see Leonov, cited above, § 74). We would like to add that the role of the Court in such circumstances should be limited to the most fundamental factors affecting the child’s interests as provided for by the Convention (right to life, human treatment, respect of dignity). It is not the Court’s task to assess whose living conditions are better, who has the bigger house and who has more money to support the child’s development. Instead, in accordance with its well-established case-law, the Court should verify whether the domestic authorities took into account any risk to life and allegations of ill-treatment, and other factors indicating a “grave risk” (see X v. Latvia [GC], no. 27853/09, §§ 107, 111 and 114, ECHR 2013). In the present case there was an indication that such a risk existed. The first applicant’s former wife, M., informed the national authorities that her husband had shouted at her. According to the report of the psychologist L., this kind of behaviour reflected suppressed aggression towards M., with an intention to dominate and humiliate her. L. considered that in the event of a divorce, it would be in the child’s best interests to live with his mother (see paragraphs 8 and 13 of the judgment).
6. The Court has opted for the same methodology in another category of cases regarding equality of arms. In the case of C.B. v. Austria (no. 30465/06, 4 April 2013), the Court had an opportunity to examine the issue in a situation of conflicting expert opinions prepared by a private expert (in favour of the applicant) and a court-appointed expert (against the applicant because of his “disordered conduct” and dangerousness). The Court found no violation of Article 6 §§ 1 and 3 (d) of the Convention, because the refusal to admit the private expert opinion into the proceedings, the refusal to allow the private expert to testify as a witness, the refusal of the requests for additional witnesses and the refusal to put certain unspecified questions to the court-appointed expert did not put the applicant in a more unfavourable position than the opposing party and thus did not violate the principle of equality of arms in the criminal proceedings against him. The Court was satisfied that the applicant had had ample opportunity to challenge the court-appointed expert and to submit any arguments in his defence (see C.B. v. Austria, cited above, §§ 44 and 47).
7. In C.B. v. Austria the Court set forth some general principles regarding its own examination of evidence:
“39. The Court further observes that it is not within its province to substitute its own assessment of the facts and of the evidence for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see, among many other authorities, Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235-B; G.B. v. France, cited above, § 59, and, more recently, Gregačević v. Croatia, no. 58331/09, § 63, 10 July 2012).
40. An expert in general assists in solving a question or problem raised in the proceedings that a judge is unable to solve by him- or herself. How the domestic authorities organise their system for the admission of evidence into criminal proceedings is essentially left to the member States. It is not the Court’s role to impose one system over another, but to ensure that the existing system in a given member State provides for sufficient safeguards to guarantee fair proceedings and respect for the equality of arms of the parties involved (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011, and Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010, with further references).
44. … The Court has stated above that it is not its task to organise the domestic system for admitting evidence in a given member State but to ensure that there are sufficient safeguards available for the applicant to have access to overall fair proceedings …”
In the present case the applicant also had an opportunity to challenge the expert opinion of the Nizhniy Novgorod childcare authorities and to submit any arguments in his favour. Unfortunately, the Court did not apply the above principles and thus, in our view, deviated from its case-law in the present case.
8. Usually the Court takes into account any circumstances relating to the prevention of family contacts. The existence of such circumstances should be established beyond reasonable doubt (see, for example, S.H. v. Italy, no. 52557/14, 13 October 2015; Krapivin v. Russia, no. 45142/14, 12 July 2016; and McIlwrath v. Russia, no. 60393/13, 18 July 2017). In the present case the majority did not find any irregularities (concerning either inaction on the part of the authorities or hostile conduct on the part of the mother) apt to demonstrate that granting a residence order in favour of M. might lead to the child’s complete loss of contact with the father and his family. However, the majority concluded that the interference had not been proportionate to the legitimate aim pursued (see paragraph 113 of the judgment), without any analysis as to whether there had been interference or as to the nature of the legitimate aim, and without conducting the proportionality test. Instead, the Court in fact confined itself to assessing whether the reasoning of the domestic courts had been relevant and sufficient.
9. Moreover, contrary to its own conclusion under Article 8 in the present case, the Court, in examining the application under Article 14 of the Convention, acknowledged that the residence order had been based on an assessment of the best interests of the child. The Court referred to the relevant circumstances of the present case (the young age of the child, the breastfeeding, the parental leave) which should have prevailed over the alleged procedural deficiencies, leading the Court to find no violation of Article 8 (see paragraph 128 of the judgment).
10. The majority found that it was not necessary to examine whether the alleged delays in the residence-order proceedings resulted in the de facto determination of the case, because they had already found a violation of Article 8 of the Convention. We would like to stress that the domestic courts actually acknowledged that the delays in the residence-order proceedings had breached the first applicant’s rights (see paragraph 53 of the judgment). Although they declared inadmissible a claim for compensation lodged on behalf of the child because he had not been formally a party to the residence-order proceedings, they expressly acknowledged when examining the first applicant’s claim that the delays in the proceedings had created legal uncertainty as to the child’s residence and difficulties in his contact with the first applicant. They therefore acknowledged in substance that certain delays in the proceedings had breached the child’s rights too. It is obvious that the domestic courts’ calculation of the overall length of proceedings, as well as the compensation awarded, are in line with the Court’s practice in Article 6 cases (see Palacheva v. Russia, no. 39814/04, § 61, 19 June 2014, and Fateyenkov and Others v. Russia, nos. 44099/04 and 9 others, 18 February 2016). We believe that the authorities acknowledged the breach of the applicants’ rights under the Convention and granted them adequate and sufficient redress. Accordingly, the applicants may no longer claim to be victims of the violation of the length-of-proceedings aspect of Article 8 of the Convention. This could be considered an additional factor leading to the conclusion that the domestic courts examined the case thoroughly (see, by contrast, the conclusion in paragraph 112 of the judgment).
11. Lastly, we cannot accept that the deficiencies in the proceedings (summarised in paragraph 111 of the judgment) were such as to result in a violation of Article 8 of the Convention. None of those arguments (better living conditions, the termination of breastfeeding by the mother and the ending of her parental leave) were sufficient to decide the case in favour of the father. The domestic courts did not reject those arguments presented by the first applicant, but weighed them up against other arguments in favour of the mother (the psychological and emotional attachment of the child to his mother; the divorce caused by the repeated humiliation by the first applicant; the young age of the child; good living conditions, and so on). We believe that it is not for the Court to decide that since breastfeeding had stopped, the child could automatically be handed over to the father. In the absence of a clear methodology (in other words, application of the Convention standards) the Court may decide arbitrarily whether or not the reasoning of the domestic authorities was sufficient. The Court’s task is not to substitute its own assessment for that of the domestic authorities in the exercise of their responsibilities regarding child custody or to act as a court of fourth instance assessing every argument. The Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation, in accordance with the general principles set out in paragraph 98 of the judgment. In its appeal decision, referred to in paragraph 25 of the judgment, the Regional Court made an assessment of the case based on the same principles, set out in paragraph 5 of Resolution of the Russian Supreme Court no. 10 of 27 May 1998.
Leave a Reply