Last Updated on April 24, 2019 by LawEuro
Communicated on 11 February 2019
THIRD SECTION
Application no.46413/18
Natalya Aleksandrovna SAMOYLOVA
against Russia
lodged on 25 September 2018
STATEMENT OF FACTS
The applicant, Ms Natalya AleksandrovnaSamoylova, is a Russian national who was born in 1977 and lives in St Petersburg. She is represented before the Court by Ms N.A. Shvechkova, a lawyer practising in St Petersburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2004 the applicant married Mr V.Zh. The couple settled in St Petersburg.
On 20 October 2006 the applicant gave birth to their son, S.
In 2007 the relations between the applicant and V.Zh. deteriorated and they started living apart. In the same year the applicant and S. moved to live with the applicant’s parents in Tyumen. V. Zh. stayed in St Petersburg.
On 12 August 2008 the marriage between the applicant and V.Zh. was officially dissolved. The applicant and S. continued living in Tyumen.
In 2009 the applicant and S. returned to St Petersburg.
1. First set of proceedings for determination of S.’s place of residence
On 17 March 2010 V.Zh. applied to the Vyborgskiy District Court of St Petersburg (“the District Court”) for a residence order in respect of S. The applicant brought a counterclaim seeking the residence of the child to be determined as being with her. During the proceedings V.Zh. withdrew his claims and acknowledged the applicant’s claims.
On 30 June 2010 the District Court decided that S. should reside with his mother, the applicant. It further discontinued the claims raised by V.Zh. The judgment became final on 13 July 2010.
2. Proceedings concerning V.Zh.’s contact with S.
On 19 October 2012 V.Zh. applied to the District Court for a contact order in respect of S.
While the proceedings were pending, in December 2012 V.Zh. collected S. from kindergarten and refused to return him to the applicant unless she signed a parental agreement on a contact order in respect of his child.
The applicant tried to secure S.’s return by applying to the District Court for a writ of enforcement in respect of the judgment of 30 June 2010.
However, on 4 February 2013 the District Court refused the applicant’s request, on the ground that the operative part of the above judgment did not impose on V.Zh. an obligation to commit, or abstain from, a particular action.
In order to speed up the child’s return, the applicant decided against lodging an appeal against the decision of 4 February 2013 and signed a parental agreement with V.Zh. providing for the terms of his contact with the child as requested by him.
On 11 February 2013 the District Court approved the above agreement and discontinued the contact proceedings.
Soon after that V.Zh. returned the child to the applicant. The applicant noticed that S. had become withdrawn and anxious, and took a decision to move to Tyumen.
On 1 March 2013 the applicant and the child moved to Tyumen. The applicant immediately informed the childcare authorities in St Petersburg of the child’s whereabouts.
On 5 March 2013 the applicant sought a consultation for the child with a psychologist in Tyumen, who examined the boy and noted that he was very nervous, emotionally unstable and edgy.
On 6 March 2013 the applicant informed the childcare authorities in Tyumen that it was impossible to comply with the terms of the parental agreement approved by the District Court on 11 February 2013.
3. Second set of proceedings for determination of S.’s place of residence and ensuing enforcement proceedings
(a) Judgment in favour of V.Zh. and ensuing enforcement proceedings
On 12 March 2013 V.Zh. applied to the District Court for a residence order in respect of S.
On 17 June 2013 the District Court determined the child’s place of residence as being with V.Zh and ordered the applicant to move S. to live with his father. That judgment was given in the applicant’s absence.
On an unspecified date V.Zh. instituted enforcement proceedings.
On 13 March 2014 the bailiffs’ service in Tyumen took S. from school and handed him to V.Zh.
(b) Judgment in favour of the applicant and ensuing enforcement proceedings
On 21 March 2014 the applicant applied to the District Court for the quashing of the judgment of 17 June 2013 taken without her participation.
On 17 April 2014 the District Court quashed the judgment of 17 June 2013 and resumed the proceedings.
On 21 May 2014 the District Court determined the territorial jurisdiction of the case as being with the Kalininskiy District Court in Tyumen.
The applicant brought a counterclaim seeking that V.Zh. be compelled to return the child to her.
A forensic psychiatric examination was conducted which revealed that S. was psychologically and emotionally uncomfortable because of the conflict between his parents, and that these stressful situations were feeding the child’s fears and anxiety and preventing the fulfilment of his basic needs, and were also distorting the fundamental basis for the development of his personality. Living with his father had resulted in the child’s developing a negative image of his mother, whereas during the child’s psychological examination in March 2013 it was noted that he perceived his relations with his mother at that time as stable and reliable, and her presence in his life as necessary. The expert concluded that in order to avoid psychological trauma it was necessary to ensure meaningful communication between the child and both of the parents.
On 17 March 2015 the Kalininskiy District Court, relying on the conclusions of the above-mentioned forensic psychiatric examination and V.Zh.’s behaviour aimed at restraining S.’s contact with the mother, dismissed V.Zh.’s claims for a residence order in respect of S. and determined that the child should reside with the applicant. V.Zh. was thereby obliged to hand S. to the applicant within fifteen days. V.Zh. appealed.
On 1 July 2015 the Tyumen Regional Court (“the Regional Court”) upheld the judgment of 17 March 2015 on appeal. The Regional Court noted the child’s difficult psycho-emotional state and the father’s unacceptable behaviour aimed at preventing the child from communicating with his mother.
On 1 September 2015 bailiffs from the Inter-District Bailiffs’ Service in St Petersburg opened enforcement proceedings in this connection.
In the period between October 2015 and February 2017 the bailiffs made unsuccessful attempts to enforce the judgment of 17 March 2015. In particular, they launched a search for V.Zh. on two occasions (October 2015 and January 2017) and visited, in vain, the latter’s presumed place of residence on ten occasions (February 2016 – February 2017). They also sent requests to various domestic authorities.
The applicant had on several occasions applied to the Ombudsman for Children in the Tyumen Region and the Prosecutor’s Office challenging the bailiffs’ failure to secure enforcement of the judgment of 17 March 2015.
On 26 February 2016 the deputy head of the Department for Examination of Complaints in Enforcement Proceedings at the Bailiffs’ Service informed the applicant that the bailiff in charge of the enforcement proceedings had indeed failed to carry out enforcement proceedings in a timely manner and had been subjected to disciplinary measures.
On 11 March 2016 the Prosecutor’s Office in St Petersburg established that the bailiff had failed to act in a timely manner and to take all the measures provided for by the law to secure the enforcement of the judgment of 17 March 2015. The bailiff’s actions were found to have been limited to sending various requests. The visits to the debtor’s place of residence had not been carried out in due time; the search activities had been carried out without regard to the debtor’s character; and the latter’s relatives, acquaintances and other persons who could have known his whereabouts had not been identified or questioned. In view of the foregoing, on 11 March 2016 the Prosecutor’s Office for St Petersburg issued a formal warning (представление) to the head of the Bailiffs’ Service for St Petersburg.
By a letter of 16 February 2017 the Prosecutor’s Office for St Petersburg further acknowledged a breach of domestic law in respect of the proceedings for enforcement of the judgment of 17 March 2015.
4. Proceedings for termination of V.Zh.’s parental rights
Meanwhile, on 17 May 2015 the applicant initiated court proceedings for termination of the parental rights of V.Zh. on the ground of his abuse of parental rights.
On 8 December 2016 the District Court dismissed the applicant’s claim. V.Zh. was, however, warned that his failure to duly carry out his parental rights could lead to their termination. The childcare authority was charged with control over the exercise of parental rights by V.Zh.
5. Third set of proceedings for determination of S.’s place of residence
On 24 November 2016 V.Zh. applied to the District Court for a residence order in respect of S. and child maintenance from the applicant.
A forensic psychological examination (report of 15 January 2018) showed that the child’s emotional state was characterised by an elevated level of anxiety, a low level of emotional control, and stress connected with fear of being withdrawn from his father’s family. Issues connected to relations with the mother caused tension and negative feelings. Owing to his involvement in a protracted parental conflict and being brought up by one of the parents in the absence of stable relations with the other parent, the child was developing social anxiety disorder. In order to avoid psychological trauma it was necessary for the child to have meaningful contact with both parents. The father was found to have influenced the child into having a negative image of the mother and a negative attitude towards her.
On 13 April 2017 the District Court took an interim decision to determine the child’s residence as being with his father pending the outcome of the residence proceedings.
During the hearing of the case on 17 January 2018 S., 11 years old, was questioned and expressed the wish to continue residing with his father, with whom he had a warm and trusting relationship. He explained his unwillingness to reside with his mother by fear of being taken back to Tyumen and left there with his maternal grandparents. S. did not mind renewing contact with his mother so long as she did not continue to pursue him with the bailiffs and cause him to fear being taken away from his father.
On 17 January 2018 the District Court granted V.Zh.’s claim and determined that the child should reside with his father. The applicant was ordered to pay child maintenance. The District Court further warned V.Zh. not to prevent the applicant from having contact with the child, participating in the latter’s upbringing, and having a role in decisions about his education.
The applicant appealed.
On 20 June 2018 the St Petersburg City Court upheld the above judgment on appeal.
Cassation review proceedings are currently pending.
B. Relevant domestic law and practice
1. Family Code of the Russian Federation
Under the Code, a child has the right to live and to be brought up in a family in so far as it is possible; the right to know his parents; the right to enjoy their care and the right to live with them, except where this is contrary to the child’s interests (Article 54 § 2).
Parents enjoy equal rights and discharge equal duties with respect to their children (Article 61 § 1).
Parents are entitled, and have an obligation, to raise and educate their children. Parents are obliged to take care of their children’s health and their physical, psychological and moral development (Article 63 § 1).
The exercise of parental rights must not contravene the children’s interests. Providing for the children’s interests is the principal object of the parents’ care. Parents who exercise parental rights to the detriment of the rights and interests of the children are answerable under procedures established by law (Article 65 § 1).
In the event of the parents’ separation, the child’s residence arrangements are fixed by an agreement between the parents. If no such agreement can be reached, the child’s residence arrangements are fixed 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 any siblings, the relationship between the child and each of the parents, the child’s age, the parents’ characters and other personal qualities, and the situation of each of them as regards creating appropriate conditions for the child’s upbringing and development, such as each parent’s occupation, employment schedule, and financial and family situation (Article 65 § 3).
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. Parents may reach a written agreement on the manner in which the parent residing separately from the child shall exercise his or her parental authority. If the parents are unable to come to an agreement, any dispute between them shall 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 may be taken against him or her under civil law. If that parent systematically refuses to comply with a court decision, a court may, following 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).
A child is entitled to express her or his 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).
2. Ruling of the Supreme Court of the Russian Federation
In its ruling no. 10 “On application by the courts of legislation when resolving disputes concerning upbringing of children” dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular:
“5. When examining the issue of a child’s residence with one of the parents … it is necessary to bear in mind that the child’s residence is determined on the basis of the child’s interests and, if the child has reached the age of ten, his or her opinion, unless this contradicts the child’s interests …
At the same time, the court takes into consideration the child’s age, his or her attachment to each parent, his or her siblings and other family members, the character and other personal qualities of the parents, the relations between the child and each parent, the situation of each of them as regards creating the necessary conditions for the child’s upbringing and development (with regard to the nature of the parents’ occupation and work schedule, their financial and family situation, bearing in mind, however, that a better financial position of one of the parents cannot as such be an unconditional ground for granting that parent’s claims), and other circumstances characterising the situation at each parent’s place of residence …”
COMPLAINTS
The applicant complains under Article 8 of the Convention that the State has failed to comply with its positive obligation to secure the applicant’s right to respect for her family life by failing to enforce the judgment of 17 March 2015 granting her claim for a residence order in respect of her son.
She further complains under Article 8 of the Convention of a violation of her right to respect for her family life by the judgment of 17 January 2018 determining her son’s residence as being with his father.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for her family life, contrary to Article 8 of the Convention? More specifically:
2. Has there been a failure by the State to comply with its positive obligation to secure the applicant’s right to respect for her family life guaranteed by Article 8 of the Convention? In particular:
(a) Has the judgment of the Kalininskiy District Court of Tyumen of 17 March 2015 granting the applicant a residence order in respect of her son been enforced?
(b) Have the domestic authorities taken, without undue delay, all the measures that they could reasonably have been expected to take to enforce the judgment of 17 March 2015?
3. Does the judgment of the Vyborgskiy District Court of St Petersburg of 17 January 2018 granting the residence order in respect of the child to the applicant’s former husband amount to an interference with the applicant’s right to respect for her family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference “in accordance with the law” and “necessary” within the meaning of Article 8 § 2 of the Convention?
The parties are invited to inform the Court of the outcome of the cassation proceeding in the third set of proceedings for determination of the child’s place of residence.
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