THIRD SECTION
\nCASE OF PETROV AND X v. RUSSIA
\n(Application no. 23608\/16)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n23 October 2018<\/p>\n
FINAL
\n04\/02\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Petrov and X v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/p>\n Vincent A. De Gaetano, President, Having deliberated in private on 25 September 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The 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 (\u201cthe Convention\u201d) bytwo Russian nationals, Mr Daniil ViktorovichPetrov (\u201cthe first applicant\u201d) and X (\u201cthe second applicant\u201d), on 25 April 2016. The Court decided of its own motion that the second applicant\u2019s name should not be disclosed (Rule 47 \u00a7 4 of the Rules of Court).<\/p>\n 2.\u00a0\u00a0The Russian Government (\u201cthe Government\u201d) 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.<\/p>\n 3.\u00a0\u00a0The applicants alleged, in particular, that the refusal to make a residence order in the first applicant\u2019s 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.<\/p>\n 4.\u00a0\u00a0On 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.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n A.\u00a0\u00a0Background information<\/strong><\/p>\n 5.\u00a0\u00a0The 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.<\/p>\n 6.\u00a0\u00a0The 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.<\/p>\n 7.\u00a0\u00a0Until 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.<\/p>\n 8.\u00a0\u00a0On 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\u00a0April 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.<\/p>\n 9.\u00a0\u00a0On 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.<\/p>\n 10.\u00a0\u00a0Later 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.<\/p>\n 11.\u00a0\u00a0Since 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\u2019s 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\u00a0December 2013.<\/p>\n B.\u00a0\u00a0Child residence proceedings<\/strong><\/p>\n 12.\u00a0\u00a0On 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\u2011ownerof her parents\u2019 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.<\/p>\n 13.\u00a0\u00a0M. submitted an opinion by a psychologist, L., whom she and the first applicant had consulted once before their separationregarding their marital problems. L.\u00a0noted that the first applicant\u2019s supressed aggression towards M. and his wish to dominate her had been the cause of their marital issues. L.\u00a0considered that in the event of divorce, it would be in X\u2019s best interest to live with his mother.<\/p>\n 14.\u00a0\u00a0The first applicant asked that M.\u2019s request for a residence order be rejected and that X be returned from Nizhniy Novgorod to St\u00a0Petersburg. 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\u00a0Petersburg, that money could be better spent on the child\u2019s 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.\u2019s 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\u00a0Petersburg 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\u2019s 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.<\/p>\n 15.\u00a0\u00a0Subsequently, the first applicant lodged a counterclaim, applying for a residence order in respect of the second applicant. He submitted that X\u2019s 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\u2019s 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\u2011deposit 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 \u2013 in particular he had worked as a teacher in children\u2019s summer camps.The first applicant further submitted that M. had abducted the child. She had restricted the first applicant\u2019s 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.<\/p>\n 16.\u00a0\u00a0The Nizhegorodskiy District Court refused to accept the first applicant\u2019s application for a residence order, finding that he should have submitted it at the beginning of the proceedings. It also refused to accept X\u2019s 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.<\/p>\n 17.\u00a0\u00a0Lastly, the first applicant asked that the court appoint a psychological expert to examine him, M. and the second applicant to assess each parent\u2019s suitability for raising the child and each parent\u2019s 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\u2019s and M.\u2019s living conditions and to express an opinion on the issue of the second applicant\u2019s residence.<\/p>\n 18.\u00a0\u00a0The first applicant\u2019s parents applied to intervene as third parties and that the second applicant\u2019s 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\u2019s mother was disabled and could not travel there, a distance of more than 1,000 km. The first applicant\u2019s 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\u2019s 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.<\/p>\n 19.\u00a0\u00a0On 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.<\/p>\n 20.\u00a0\u00a0On 18 February 2014 the St Petersburg childcare authorities issued their opinion on the case, finding that it was in the second applicant\u2019s 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\u2019s 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\u2019 one\u2011bedroom flat in Nizhniy Novgorod. M.\u2019s parents lived in Moscow. By contrast, the first applicant had a stable and sufficient income from bank\u2011deposit 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\u00a0Petersburg and part-owned two other flats. The first applicant\u2019s 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.<\/p>\n 21.\u00a0\u00a0On 31 March 2014 the Nizhniy Novgorod childcare authorities also issued their opinion on the case, finding that it was in the second applicant\u2019s 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\u00a0Petersburg. It was true that the first applicant also had good living conditions and had actively participated in the child\u2019s upbringing and care. However, taking into account X\u2019s young age, it was better for him to live with his mother for the time being. In reply to the applicant\u2019s question, the Nizhniy Novgorod childcare authorities explained, in a letter of 12 May 2014, that a child was considered to be of \u201cyoung age\u201d until 18\u00a0years old and that \u201cfor the time being\u201d meant until a change of circumstances, for example the child\u2019s reaching the age of ten or fourteen.<\/p>\n 22.\u00a0\u00a0On 4 April 2014 the Nizhegorodskiy District Court granted the divorce and M.\u2019s application for a residence order in respect of the second applicant. The court firstly cited the opinion of 31\u00a0March 2014 of the Nizhniy Novgorod childcare authorities. It then noted that the family had lived in St\u00a0Petersburg 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:<\/p>\n \u201cIt is apparent from [M.\u2019s] submissions that she is still breastfeeding the child. [M.] is on parental leave and devotes all her time to the child. [M.]\u2019s parents help her take care of and [financially] support the child. The [first applicant] pays [M.] 15,000\u00a0roubles [RUB] every month of his own accord. The child is on a waiting list for a nursery school.<\/p>\n The [first applicant]… takes an active part in his son\u2019s 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.<\/p>\n Both parents have positive character references and wish to live together with the child and participate directly in his upbringing.<\/p>\n 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\u2019s age, the court considers it opportune [\u0446\u0435\u043b\u0435\u0441\u043e\u043e\u0431\u0440\u0430\u0437\u043d\u043e] to grant the residence order in respect of [X] to his mother [M.] for the time being.<\/p>\n 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\u2019s contact with the other parent, unless such contact undermines the child\u2019s physical or psychological health or moral development.<\/p>\n [The first applicant]\u2019s … financial situation allows him to visit the child in Nizhniy Novgorod (according to [the first applicant\u2019s] submissions his monthly income is about RUB 60,000).<\/p>\n The [first applicant]\u2019s 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\u2019s place of residence is with his parents. In the present case the court grants the residence order to the mother [M.]; [M.\u2019s] place of residence is currently in Nizhniy Novgorod.\u201d<\/p>\n 23.\u00a0\u00a0The 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\u00a0February 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\u2019s mother had been the child\u2019s age. The child\u2019s 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\u2019s 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\u2019s 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\u2019s 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\u2019s 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\u2019s \u201cbest interests\u201d 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\u00a0Washington v. France, no.\u00a039388\/05, 6 December 2007). M. had abducted the second applicant and had restricted the number and the length of the first applicant\u2019s visits, including during the period after the District Court\u2019s 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 \u2013 that is his application for a residence order in his favour \u2013 had been unlawful.<\/p>\n 24.\u00a0\u00a0On 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.<\/p>\n 25.\u00a0\u00a0On 10 March 2015 the Nizhniy Novgorod Regional Court upheld the judgment of 4 April 2014 on appeal. It held:<\/p>\n \u201cHaving analysed the entirety of the evidence in the casefile, including the child authorities\u2019 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\u2019 separation, had been brought up by his mother.<\/p>\n The court rejects [the first applicant\u2019s] appeal submissions … which in essence convey a disagreement with [the District Court\u2019s] assessment of evidence. It notes that a parent\u2019s better financial or social situation or professional position are not decisive factors in deciding the question of the child\u2019s residence …<\/p>\n 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\u2019s findings were based on the evidence in the casefile. There is no reason to doubt the impartiality of the examination and assessment of evidence …\u201d<\/p>\n The court also added that the issue of the child\u2019s contact with his grandparentswasto be examined in separate proceedings. Furthermore, the refusal to examine the first applicant\u2019s 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.<\/p>\n 26.\u00a0\u00a0On 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\u2019s father informed about the child\u2019s whereabouts and that the child was entitled to maintain contact with his grandparents and other relatives.<\/p>\n 27.\u00a0\u00a0On 12 June 2015 the first applicant\u2019s mother died. She had not seen her grandson since April 2013.<\/p>\n 28.\u00a0\u00a0On 6 October 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant\u2019s 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\u2019s young age. In such circumstances, the first applicant\u2019s argument that it was in the child\u2019s best interest to live with his father had been unconvincing. M.\u2019s 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.<\/p>\n 29.\u00a0\u00a0On 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.<\/p>\n C.\u00a0\u00a0Contact proceedings<\/strong><\/p>\n 30.\u00a0\u00a0On 9 September 2015 M. moved to Moscow where she had found a job. X remained in Nizhniy Novgorod with his maternal grandmother.<\/p>\n 31.\u00a0\u00a0On 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.<\/p>\n 32.\u00a0\u00a0On 29 September 2015 the Nizhegorodskiy District Court allowed the first applicant\u2019s 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\u00a0a.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\u2019s place of residence, in the mother\u2019s 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\u2019s attendance ofX\u2019s 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\u2019s medical treatment or education.<\/p>\n 33.\u00a0\u00a0On 8 December 2015 the Nizhniy Novgorod Regional Court upheld the interim contact order on appeal.<\/p>\n 34.\u00a0\u00a0On an unspecified date the\u00a0Nizhegorodskiy District Court ordered an expert report to determine X\u2019s relationship with each of the parents.<\/p>\n 35.\u00a0\u00a0On 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\u2019s 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\u2019s age and stage of development. X was more excitable and capricious in his father\u2019s presence, while his mother\u2019s 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.<\/p>\n 36.\u00a0\u00a0On 1 February 2016 M. and X moved to Moscow Region.<\/p>\n 37.\u00a0\u00a0On 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\u2019s rights.<\/p>\n 38.\u00a0\u00a0It therefore ordered that M. consult the first applicant before taking any decisions concerning X\u2019s 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\u00a0p.m. at X\u2019s place of residence with the right to attend outdoor activities for children; (ii) for two weeks during the summer at the first applicant\u2019s place of residence with the right to travel to other places within Russia. The schedule was valid until X\u2019s seventh birthday and was to be revised afterwards.<\/p>\n 39.\u00a0\u00a0On 8 July 2016 the Nizhegorodskiy District Court rejected the first applicant\u2019s request for immediate enforcement of the contact order of 27\u00a0April 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.<\/p>\n 40.\u00a0\u00a0On 31 August 2016 the Petrogradskiy District Court of St Petersburg allowed anapplication for a contact order lodged by X\u2019s 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.<\/p>\n 41.\u00a0\u00a0On 13 September 2016 M. was fined for hindering contact between the applicants in breach of the interim contact order of 29 September 2015.<\/p>\n 42.\u00a0\u00a0On 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\u2019s rights.<\/p>\n 43.\u00a0\u00a0On 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\u2019s birthday each year at X\u2019s place of residence; (ii) on the first Wednesday and third Friday of each month from 3 to 7 p.m. at X\u2019s place of residence; and (iii) for half an hour every day by means of Internet communications.<\/p>\n 44.\u00a0\u00a0On 13 March 2017 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant\u2019s 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.<\/p>\n 45.\u00a0\u00a0On 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\u2019s paternal grandfather and grandaunt should be able to have contact with him for seven days every six months at the grandfather\u2019s place of residence.<\/p>\n 46.\u00a0\u00a0On 18 April 2017 a judge of the Supreme Court of the Russian Federation refused to refer the first applicant\u2019s 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.<\/p>\n 47.\u00a0\u00a0On 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\u2019s birthdays.On 11 July 2018 the Moscow Regional Court quashed that judgment on appeal and rejected the first applicant\u2019s request to amend the contact schedule, finding that the contact schedule established by the judgment of 27 April 2016 was valid until X\u2019s seventh\u2019s birthday and that there was no reason to change it before that date.<\/p>\n 48.\u00a0\u00a0According to the Government, X now lives in Moscow Region with his mother. The first applicant is renting a flat in the vicinity of X\u2019s 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.<\/p>\n D.\u00a0\u00a0Action for compensation for the excessive length of the residence and contact proceedings<\/strong><\/p>\n 49.\u00a0\u00a0On 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\u2011pecuniary 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.<\/p>\n 50.\u00a0\u00a0On 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.<\/p>\n 51.\u00a0\u00a0The 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\u2019s rights.<\/p>\n 52.\u00a0\u00a0On 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.<\/p>\n 53.\u00a0\u00a0On 9 July 2015 the Nizhniy Novgorod Regional Court awarded the first applicant 30,000 Russian roubles (RUB \u2013 about 475 euros (EUR)) for non\u2011pecuniary 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\u2019 statements of appeal to the Regional Court. Accordingly, the first applicant\u2019s case had not been heard within a \u201creasonable time\u201d. 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\u2019s residence and had hindered the exercise by the first applicant of his contact rights.<\/p>\n 54.\u00a0\u00a0On 19 August 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant\u2019s 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.<\/p>\n 55.\u00a0\u00a0On 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.<\/p>\n 56.\u00a0\u00a0On 27 November 2015 a judge of the Supreme Court of the Russian Federation refused to refer the first applicant\u2019s 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.<\/p>\n 57.\u00a0\u00a0On 5 July 2017 the Nizhniy Novgorod Regional Court awarded the applicants RUB 30,000 (about EUR 475) in respect of non\u2011pecuniary 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.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 58.\u00a0\u00a0The Family Code provides that in the event of the parents\u2019 separation, a child\u2019s residence arrangements are determined by an agreement between them. If no such agreement can be reached, the child\u2019s residence arrangements are determined by a court order, having regard to the child\u2019s best interests and his or her opinion on the matter. In particular, the court must take into account the child\u2019s attachment to each of the parents and siblings, the relationship between the child and each of the parents, the child\u2019s age, the parents\u2019 moral and other personal qualities and the possibilities each of them have for creating conditions for the child\u2019s upbringing and development (in the light of such considerations as each parent\u2019s occupation, employment schedule, and financial and family situation) (Article 65).<\/p>\n 59.\u00a0\u00a0The 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\u2019s contact with the other parent, unless such contact undermines the child\u2019s 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\u2019s residence to that parent, taking into account the child\u2019s interests and the child\u2019s opinion (Article 66, as in force at the material time).<\/p>\n 60.\u00a0\u00a0A child is entitled to maintain contact with his parents, grandparents, brothers, sisters and other relatives. The parents\u2019 divorce or separation or the annulment of their marriage must have no bearing on the child\u2019s rights. In particular, in the event of the parents residing separately, the child is entitled to maintain contact with both of them (Article 55 \u00a7 1).<\/p>\n 61.\u00a0\u00a0A 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).<\/p>\n 62.\u00a0\u00a0The 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\u00a0137).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0SCOPE OF THE CASE<\/p>\n 63.\u00a0\u00a0The Court notes that the applicants raised several new complaints under Articles 8 and 14 of the Convention in their reply to the Government\u2019s 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.<\/p>\n 64.\u00a0\u00a0In the Court\u2019s view, the new complaints raised by the applicants are not an elaboration of their original complaint lodged with the Court on 25\u00a0April 2016 and communicated to the Government on 13 September 2016. The Court will therefore not examine them (for a similar reasoning, see Nuray\u015een v. Turkey (no. 2), no. 25354\/94, \u00a7 200, 30 March 2004; Melnik v. Ukraine, no. 72286\/01, \u00a7\u00a7 61-63, 28 March 2006; Kopylov v.\u00a0Russia, no. 3933\/04, \u00a7\u00a7 109-10, 29 July 2010; Antonyuk v. Russia, no.\u00a047721\/10, \u00a7\u00a7 93-94, 1 August 2013; andMalinin v. Russia, no.\u00a070135\/14, \u00a7\u00a7\u00a052-53, 12 December 2017).<\/p>\n II.\u00a0\u00a0ALLEGED ABUSE AND HINDRANCE OF THE RIGHT OF INDIVIDUAL APPLICATION AND ALLEGED FAILURE TO COOPERATE WITH THE COURT<\/p>\n 65.\u00a0\u00a0The Government in their observations on admissibility and merits of the case requested that the Court declare the application inadmissible under Article 35 \u00a7 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.<\/p>\n 66.\u00a0\u00a0The applicants complained in reply that the fact that the Representative of the Russian Federation had concealed his close acquaintance with M.\u2019s 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:<\/p>\n Article 34<\/p>\n \u201cThe 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.\u201d<\/p>\n Article 35<\/p>\n \u201c3.\u00a0\u00a0The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:<\/p>\n (a)\u00a0\u00a0the application is … an abuse of the right of individual application; …\u201d<\/p>\n Article 38<\/p>\n \u201cThe 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.\u201d<\/p>\n A.\u00a0\u00a0Submissions by the parties<\/strong><\/p>\n 67.\u00a0\u00a0The 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 \u00a7\u00a07 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.\u00a025101\/05, 3 July 2007; Hadrabov\u00e1 and Others v. the Czech Republic (dec.), no. 42165\/02, 25 September 2007; and\u010cerve\u0148\u00e1kov\u00e1 v.\u00a0the\u00a0Czech Republic (dec.), no.\u00a026852\/09, 23 October 2012).<\/p>\n 68.\u00a0\u00a0The 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.<\/p>\n 69.\u00a0\u00a0The 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\u00a0April 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.<\/p>\n 70.\u00a0\u00a0The applicantsalso submitted that the Government\u2019s former representative Mr Matyushkinwas biased. According to the applicants, M.\u2019s father was Mr\u00a0Matyushkin\u2019s personal aikido trainer and a close friend. They submitted a photograph featuring Mr Matyushkin and M.\u2019s father together and claimed that it had been taken at M.\u2019s father\u2019s 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\u2019 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\u2019s new representative Mr\u00a0Galperin \u2013 who had submitted the Government\u2019s further observations where he had continued to conceal and distort the facts of the case. The applicants also argued thatMr\u00a0Matyushkin\u2019s 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).<\/p>\n 71.\u00a0\u00a0The Government submitted in reply that Mr Matyushkin was indeed acquainted with M.\u2019s 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.\u2019s 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.\u2019s father\u2019s birthday party in 2009 out of courtesy rather than because of any friendly feelings.Mr\u00a0Matyushkin affirmed that he was not biased against the first applicant and that the first applicant\u2019s allegations of bias were therefore unsubstantiated, dishonest and offensive. The Government further submitted that Mr\u00a0Matyushkin 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\u00a0Matyushkin was acquainted with M.\u2019s father did not amount to a hindrance of the right of petition.Lastly, the Government argued that the first applicant\u2019s unsubstantiated accusations against Mr Matyushkinhad amounted to an abuse of the right of individual petition (they referred toApinis v.\u00a0Latvia (dec.), no. 46549\/06, 20 September 2011).<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 1.\u00a0\u00a0Alleged abuse of the right of application<\/em><\/p>\n 72.\u00a0\u00a0The Court reiterates that under Article 35 \u00a7 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 \u00a7 7 (former Rule 47 \u00a7 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\u2019s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810\/10, \u00a7 28, ECHR 2014, with further references).<\/p>\n 73.\u00a0\u00a0In 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\u2019 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.<\/p>\n 74.\u00a0\u00a0The Court further reiterates that the use of particularly vexatious, insulting, threatening or provocative language by the applicant \u2013 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 \u2013 may be also considered an abuse of the right of petition within the meaning of Article 35 \u00a7 3 (a) of the Convention. However, it does not suffice that the applicant\u2019s 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 Miro\u013cubovs and Others v. Latvia, no. 798\/05, \u00a7 64, 15 September 2009, with further references).<\/p>\n 75.\u00a0\u00a0In the present case the applicants informed the Court that the former Representative of the Russian Federation \u2013 who had submitted the Government\u2019s observations on the admissibility and merits \u2013 was acquainted with M.\u2019s father, which was confirmed by the Government.The applicants then expressed their doubts as to the Representative\u2019s 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\u2019 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 \u00a7 3 (a) of the Convention.<\/p>\n 76.\u00a0\u00a0Accordingly, 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\u2019s request for the application to be declared inadmissible under Article 35 \u00a7 3 of the Convention as an abuse of the right of application.<\/p>\n 2.\u00a0\u00a0Alleged lack of cooperation and hindrance of the right of individual application<\/em><\/p>\n 77.\u00a0\u00a0The 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\u2019s right of application.There is no indication in the present case that there has been any hindrance of the applicants\u2019 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.<\/p>\n 78.\u00a0\u00a0The alleged failure to submit relevant information and documents does not raise an issue under Article 34 (see \u00d6calan v. Turkey [GC], no.\u00a046221\/99, \u00a7 201, ECHR 2005\u2011IV, and Baysayeva v.\u00a0Russia, no.\u00a074237\/01, \u00a7 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, \u00a7\u00a7 161-64 and 168). In so far as the applicants\u2019 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.<\/p>\n 79.\u00a0\u00a0Having 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.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 80.\u00a0\u00a0The 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:<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2.\u00a0\u00a0There 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.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 81.\u00a0\u00a0As regards the applicants\u2019 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.<\/p>\n 82.\u00a0\u00a0The 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.<\/p>\n 83.\u00a0\u00a0The 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\u2019s behalf (compare Diamante and Pelliccioni v.\u00a0San Marino, no. 32250\/08, \u00a7 147, 27 September 2011, and\u00a0 Z. v. Slovenia, no. 43155\/05, \u00a7 116, 30 November 2010; and compare and contrast Eberhard and M. v. Slovenia, nos. 8673\/05 and 9733\/05, \u00a7\u00a7\u00a088-90, 1\u00a0December 2009 (with further references), and K.B. and Others v. Croatia, no. 36216\/13, \u00a7\u00a7 109-10, 14 March 2017).<\/p>\n 84.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0Submissions by the parties<\/em><\/p>\n (a)\u00a0\u00a0The Government<\/p>\n 85.\u00a0\u00a0The 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\u2011VI, and Haase v. Germany, no.\u00a011057\/02, ECHR 2004\u2011III (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\u2019s 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.<\/p>\n 86.\u00a0\u00a0The Government further submitted that\u00a0before 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\u2019s 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\u2019s 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.<\/p>\n 87.\u00a0\u00a0The 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.\u00a0Russia (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\u00a068891\/01, 12\u00a0January 2006), where the Court had found that it had been in the child\u2019s 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.\u2019s freedom of movement guaranteed by Article 2 of Protocol No.\u00a04 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.<\/p>\n 88.\u00a0\u00a0As 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 Ribi\u0107 v. Croatia, no. 27148\/12, 2 April 2015, where the proceedings had lasted for seven years and eight months; Mihailova v.\u00a0Bulgaria, 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.<\/p>\n 89.\u00a0\u00a0Furthermore, 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\u2019s relationship with each of his parents. A separate contact order had been made in respect of X\u2019s 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.<\/p>\n 90.\u00a0\u00a0Lastly, 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\u00a0Petersburg 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\u2019s 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\u2019s opinion, the present case was similar to the case of Drenk v. the Czech Republic (no. 1071\/12, 4\u00a0September 2014), where the Court had found that the domestic courts\u2019 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.<\/p>\n (b)\u00a0\u00a0The applicants<\/p>\n 91.\u00a0\u00a0The 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\u2019s age had outweighed all other factors, the domestic courts had not considered it necessary to examine them.By holding that the first applicant\u2019s arguments concerning better living conditions in St Petersburg \u2013 in particular, less air pollution, lower criminal rate and better infrastructure for child development \u2013 had been irrelevant, the domestic courts had failed to conduct an in-depth examination of the entire family situation and of all relevant factors.<\/p>\n 92.\u00a0\u00a0Nor 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 \u201cleft-behind\u201d parent (they referred to HromadkaandHromadkova(citedabove, \u00a7\u00a7 148-52)). In the applicants\u2019 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\u2019s 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\u2019 place of residence. The applicants argued that M. had not been entitled to take a unilateral decision as to X\u2019s 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\u2019s 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\u2019s 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\u2019s material and educational needs.<\/p>\n 93.\u00a0\u00a0The applicants claimed that the Government\u2019s observations gave the impression that Russian authorities had considered the child to be the mother\u2019s property. Thus, they had put considerable emphasis on the mother\u2019s freedom of movement and her right to take the child with her wherever she had gone, irrespective of the child\u2019s 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\u2019s consent.<\/p>\n 94.\u00a0\u00a0The applicants also submitted thatM. had also acted contrary to X\u2019s 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\u2019s interests into account when deciding on the residence order (contrast Diamante and Pelliccioni,cited above, \u00a7\u00a7 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\u2019s 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\u2011volunteer 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.<\/p>\n 95.\u00a0\u00a0The 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\u2019s 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\u2019s application in that connection.<\/p>\n 96.\u00a0\u00a0Furthermore, the applicants submitted that the domestic courts\u2019 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\u2019s application for a residence order for no valid reason. Secondly, they had rejected his request for a psychological examination to determine X\u2019s relationship with each of his parents. Given X\u2019s young age, a psychological expert examination would have been the only way to have him \u201cheard\u201d, 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\u2019s relationship with his parents, referring to his age as the only grounds for the finding that it hadbeen in X\u2019s interest to live with his mother. Thirdly, the domestic courts had also rejected the first applicant\u2019s application to include in the file X\u2019s medical records showing that M. had no longer been breastfeeding him. They had moreover refused to hear submissionsfrom X\u2019s paternal grandparents about M.\u2019s hindering X\u2019s 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\u2019s best interest to live in St\u00a0Petersburg with the father.<\/p>\n 97.\u00a0\u00a0Lastly, 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\u2019s interest because he had been brought up by his mother after the parents\u2019 separation. The mother had therefore benefited from her unlawful actions in taking X away and from the delays in the residence-order proceedings.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 98.\u00a0\u00a0In determining whether the refusal of custody or access was justified under Article 8 \u00a7 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\u2019s 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, \u00a7 64, ECHR 2003\u2011VIII; Sommerfeld v. Germany [GC], no. 31871\/96, \u00a7 62, ECHR 2003\u2011VIII (extracts); C. v. Finland, no. 18249\/02, \u00a7 52, 9 May 2006; and Z.J.\u00a0v.\u00a0Lithuania, no. 60092\/12, \u00a7 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.\u00a0Switzerland [GC], no.\u00a041615\/07, \u00a7 139, ECHR 2010, and Antonyuk v.\u00a0Russia, cited above, \u00a7\u00a0134).<\/p>\n 99.\u00a0\u00a0The 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, \u00a7 65, and Sommerfeld, cited above, \u00a7 63).<\/p>\n 100.\u00a0\u00a0Article 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\u2019s health and development (see Sahin, cited above, \u00a7 66, and Sommerfeld, cited above, \u00a7 64).<\/p>\n 101.\u00a0\u00a0The Court cannot satisfactorily assess whether the reasons advanced by the domestic courts were \u201csufficient\u201d for the purposes of Article 8 \u00a7 2 without at the same time determining whether the decision\u2011making process, seen as a whole, was fair (see Sahin, cited above, \u00a7 68, and Sommerfeld, cited above, \u00a7 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, \u00a7 100, with further references).<\/p>\n 102.\u00a0\u00a0Lastly, 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\u2019s 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, \u00a7 65, Series A no. 121; Sylvester v. Austria, nos. 36812\/97 and 40104\/98, \u00a7 69, 24 April 2003; and Z.J. v. Lithuania, cited above, \u00a7 100).<\/p>\n (b)\u00a0\u00a0Application to the present case<\/p>\n 103.\u00a0\u00a0The Court considers that the decision to make a residence order in favour of the mother amounted to an interference with the applicants\u2019 right to respect for their family life (see Antonyuk, cited above, \u00a7 119; see also G.B. v. Lithuania, no. 36137\/13, \u00a7 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 \u201cnecessary in a democratic society\u201d.<\/p>\n 104.\u00a0\u00a0Before 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\u2019s parental authority. It is also significant that the first applicant was subsequently granted contact rights.<\/p>\n 105.\u00a0\u00a0The 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, \u00a7 121).<\/p>\n 106.\u00a0\u00a0It is not the Court\u2019s 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\u2019s 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\u2011depth 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\u2019s 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<\/a>, \u00a7 63, 10\u00a0April 2018, with further references).<\/p>\n 107.\u00a0\u00a0In 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.<\/p>\n 108.\u00a0\u00a0The Court will first examine the applicants\u2019 argument that no expert or other specialist assessment had been performed to establish X\u2019s attachment to each of the parents, and that X had not been therefore duly \u201cheard\u201d 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.\u00a0and Others v.\u00a0Georgia, no. 71776\/12, \u00a7 72, 2\u00a0February 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, \u00a7\u00a7 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\u2019s 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\u2019s relationship with each of his parents, each parent\u2019s 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.<\/p>\n 109.\u00a0\u00a0The 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.\u2019s 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\u2019s 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.<\/p>\n 110.\u00a0\u00a0The 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\u2019 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\u2019s attachment to each of his parents and their parenting abilities.<\/p>\n 111.\u00a0\u00a0The 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\u2019s medical records from which it was apparent that the breastfeeding had stopped. Nor did the appeal court reply to the first applicant\u2019s 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\u2019s arguments \u2013 supported by the St Petersburg childcare authorities \u2013relating to better living conditions and better opportunities for child development in St Petersburg, without an assessment on the merits as irrelevant.<\/p>\n
\nBrankoLubarda,
\nDmitry Dedov,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nGeorgios A. Serghides,
\nJolienSchukking,
\nMar\u00eda El\u00f3segui, judges,
\nandFato\u015f Arac\u0131, DeputySection Registrar,<\/p>\n