THIRD SECTION
\nCASE OF ELITA MAGOMADOVA v. RUSSIA
\n(Application no. 77546\/14)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n10\u00a0April 2018<\/p>\n
FINAL
\n10\/07\/2018<\/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 Elita Magomadova v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/p>\n Helena J\u00e4derblom, President, Having deliberated in private on 13 March 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. 77546\/14) 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) by a Russian national, Ms ElitaKhaidovnaMagomadova (\u201cthe applicant\u201d), on 5 December 2014.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms V. Kogan and Mr E. Wesselinkfromthe Stichting Russian Justice Initiative, an NGO based in Moscow. The Russian Government (\u201cthe Government\u201d) were represented by Mr\u00a0G.\u00a0Matyushkin, 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 applicant alleged, in particular,that a refusal to issue a residence order in her favour in respect of her son had violated her right to respect for her family life.<\/p>\n 4.\u00a0\u00a0On 4 June 2015 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1974 and lives in Moscow.<\/p>\n 6.\u00a0\u00a0On 10 November 2009 the applicant gave birth to a son, I., whose father was E., her partner.<\/p>\n 7.\u00a0\u00a0Following their separation in November 2010, the applicant and E. agreed that I. would live with the applicant and E. would visit him regularly.<\/p>\n 8.\u00a0\u00a0On 22 October 2013 E. took the boy to Grozny in Chechnya.<\/p>\n 9.\u00a0\u00a0The applicant followed them to Grozny, where she attempted to visit her son, but was prevented from doing so by E.<\/p>\n 10.\u00a0\u00a0On 18 February 2014 the applicant applied to the Leninskiy District Court of Grozny (\u201cthe District Court\u201d) for a residence order under which I. would live with her. She submitted that I. had lived with her from birth until his removal by his father the previous October. They were very attached to each other. She had a stable income, a spacious flat, good character references, and was capable of providing I. with everything necessary in terms of his living expenses, education and development. She also complained that since the removal she had made many attempts to visit her son, but E. had prevented her from seeing him.<\/p>\n 11.\u00a0\u00a0On 19 March 2014 the childcare authority of the Chertanovo District of Moscow visited the applicant\u2019s flat in Moscow and found the living conditions there suitable for a small child.<\/p>\n 12.\u00a0\u00a0On 19 March 2014 the Justice of the Peace of the 230 Court Circuit of the Chertanovo District of Moscow convicted E. of assault and battery, finding E. guilty of assaulting and injuring the applicant in August 2013, and sentenced him to a fine.<\/p>\n 13.\u00a0\u00a0On 9 April 2014 the childcare authority of Grozny visited E.\u2019s flat in Grozny and found that the living conditions there were suitable for a small child. The officials noted that E. lived in the flat with his mother A. and his son I.<\/p>\n 14.\u00a0\u00a0On 15 April 2014 the childcare authority of Grozny issued its report on the case. The report reiterated that E.\u2019s living conditions were suitable and further read as follows:<\/p>\n \u201c[E.] works as a senior medical officer at [a private medical clinic] and, according to him, has a monthly income of 50,000 roubles …<\/p>\n The child has been living with his father [E.] for a long time. His mother lives in Moscow and does not participate in his upbringing. The boy is very attached to the father and receives a lot of attention, tenderness and care. Bearing in mind the best interests of [I.], [the childcare authority of Grozny] considers that a residence order in respect of [I.] in favour of his father [E.] would not be contrary to the child\u2019s interests and would not hinder his contact with the mother.\u201d<\/p>\n 15.\u00a0\u00a0At the hearing concerning the applicant\u2019s application for a residence order, E. stated that I. had indeed lived with his mother until recently, but he was not at all attached to her. E. had financially supported them and had visited them regularly. The applicantwas \u201cnot leading the right kind of life\u201d and she would have a bad influence on I.<\/p>\n 16.\u00a0\u00a0At the hearing, anofficial of the childcare authority of Grozny reiterated the findings contained in the report of 15 April 2014.<\/p>\n 17.\u00a0\u00a0On 17 April 2014 the District Court dismissed the applicant\u2019s application for a residence order in her favour. It held that a residence order in respect of I. should be granted to his father, even though he had not requested it. The court held as follows:<\/p>\n \u201cArticle 196 \u00a7 3 of [the Code of Civil Procedure] provides that a court decides on the claims submitted by a claimant. However, the court may go beyond those claims in cases provided for by the federal law.<\/p>\n Article 65 of [the Family Code] provides that if no agreement can be reached, a dispute between parents must be decided by a court, having regard to the child\u2019s best interests.<\/p>\n It follows that the court may go beyond the parties\u2019 claims and make a residence order in respect of the child in favour of the father [E.].<\/p>\n The report of the childcare authority of Grozny no…. of 15 April 2014 indicates that it is preferable to make a residence order in respect of the child [I.] in favour of his father [E.], and not to hinder his contact with his mother.<\/p>\n The available information shows that both parents have good character references from their employers and their neighbourhoods, have permanent employment, stable incomes, and real estate.<\/p>\n According to inspection reports, the living conditions of both parents meet the conditions necessary for raising and accommodating a child.<\/p>\n Point 5 of Ruling no. 10 of the Plenary Supreme Court of 27 May 1998 enumerates, in line withArticle 65 \u00a7 3 of [the Family Code], factorswhich must be taken into account when deciding on a dispute concerning a child\u2019s residence arrangements. These factors are the child\u2019s attachment to each of the parents and [any] 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 [proper]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), and other factors defining the situation in each parent\u2019s place of residence. The Plenary Ruling stresses, in particular, that the better financial or living conditions of one of the parents cannot, in themselves, constitute a decisive reason for granting this parent\u2019s application for a residence order in his [or her] favour.<\/p>\n The better financial and living conditions of one of the parents (the claimant has a higher income and owns residential property in Moscow) cannot constitute a decisive reason for making a residence order in her favour and for rejecting the other parent\u2019s claim, because there are other factors.<\/p>\n By contrast, [the applicant] is a single mother who has one more child from her previous marriage: a daughter [R.] born on 25 June 1997. This age is most difficult, and requires special attention from the mother.<\/p>\n Because she works, on 2 September 2013 the claimant placed I. in a [nursery school] in Moscow, despite the fact that, by her own admission, he suffers from a congenital central neural system anomaly: dysgenesis of the corpus callosum.<\/p>\n The [factors considered] above indicate that [the applicant] is unable to create [proper] conditions for the child\u2019s upbringing and development. Because of her work, she does not have enough time to devote to her children. These circumstances could have adisastrous impact on the child\u2019s immature mind.<\/p>\n It has been established that the defendant occupies a managerial position at work. His income allows him to create comfortable financial and living conditions. He lives with his mother [A.], who helps to raise [I.]. The childcare authorities\u2019reportindicates that the child is attached to his father.<\/p>\n The defendant has not hindered [the applicant\u2019s] contact with the child.<\/p>\n Under Articles 56 and 57 of [the Code of Civil Procedure], each party must prove the circumstances on which [he or] she relies in support of [his or] her claims or submissions.<\/p>\n In the court\u2019s opinion, the claimant has not submitted evidence in support of her arguments in [the] adversarial proceedings.\u201d<\/p>\n 18.\u00a0\u00a0The applicant appealed. She complained, in particular, that the residence order had been granted to E. at the District Court\u2019s own initiative, as E. had never requested it. She further submitted that she was perfectly capable of providing I. with everything which he needed for his development. Her elder daughter was healthy and self-reliant and did not require any special attention. Her daughterwould therefore not hinder her ability to take care of I.; on the contrary, she was of great help. The applicant had placed I. in a nursery school to give him a pre-school education and to further his social adaptation. His medical condition was not an obstacle to his attending a pre-school. The District Court\u2019s finding that she did not have enough time to take care of her children was not based on any evidence. Neither her working schedule nor that of E. had been examined. Nor had the court explained how, within such a short period of time, I. could have become more attached to his father than his mother, with whom he had lived from birth until his recent abduction. Lastly, the applicant complained that E. was preventing her from seeing her son. That fact had been confirmed by the childcare authorities\u2019 representative at the hearing, who had recounted E.\u2019s assertions that he would not allow any contact between I. and his mother.<\/p>\n 19.\u00a0\u00a0On 3 July 2014 the Supreme Court of the Chechen Republic upheld the judgment on appeal, finding that it was lawful, well-reasoned and justified. The judgment was based on the best interests of the child, taking into account his age, his attachment to the father, and the father\u2019s ability to create proper conditions for his son\u2019s upbringing and development.<\/p>\n 20.\u00a0\u00a0In reply to a complaint by the applicant that she had been prevented from seeing her son for a long time, by a letter of 7 August 2014, a deputy mayor of Grozny informed her that E. had stated to the childcare authorities that he would not allow any contact between I. and his mother.<\/p>\n 21.\u00a0\u00a0By a letter of 12 September 2014, the head of the childcare authority of Grozny informed the applicant that the childcare official who had issued the report of 15 April 2014 had been disciplined. An internal inquiry had established that the reportwas based on incorrect and incomplete information. In particular, E.\u2019s statement that he had high income had not been checked. The finding that the applicant had not participated in I.\u2019s upbringing was not based on any evidence. The length of time I. had lived with each of the parents had not been established. Lastly, the fact that I. had a half-sister living with his mother had not been taken into account. The report of 15 April 2014 had therefore violated the applicant\u2019s rights and legitimate interests.<\/p>\n 22.\u00a0\u00a0The applicant lodged a cassation appeal, referring, in particular, to the letter of 12 September 2014.<\/p>\n 23.\u00a0\u00a0On 27 November 2014 a judge of the Supreme Court of the Chechen Republic refused to refer the applicant\u2019s cassation appeal 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. Relying, in particular, on the childcare authorities\u2019reportof 15\u00a0April 2014, the judge found that it was in I.\u2019s interests to live with his father.<\/p>\n 24.\u00a0\u00a0On 5 December 2014 E. died in a car accident. I continued to live with his paternal grandmother A.<\/p>\n 25.\u00a0\u00a0On 14 January 2015 the applicant applied to the Shali Town Court of the Chechen Republic (\u201cthe Town Court\u201d), asking that I. be returned to her.<\/p>\n 26.\u00a0\u00a0On 31 July 2015 the Town Court granted her application. The court held that I. should be taken away from A. and returned to the applicant, with whom he should live from that point onwards. On 12 November 2015 the Supreme Court of the Chechen Republic upheld the judgment on appeal.<\/p>\n 27.\u00a0\u00a0On 24 November 2015 the Town Court issued a writ of execution. On the same day bailiffs initiated enforcement proceedings.<\/p>\n 28.\u00a0\u00a0On 28 November 2015 the bailiffs visited A. and ordered that she return I. to the applicant on 3 December 2015. When the bailiffs visited A. on 3 December 2015 to take I. away, A. and I. were not at home. The bailiffs visited A. again on 5 and 25 December 2015 and 4\u00a0February 2016, but could not find her or I. The childcare authorities also visited A.\u2019s address on several occasions, but found nobody at home. It was finally established that A. had moved out with I.<\/p>\n 29.\u00a0\u00a0On 24 December 2015 the bailiffs banned A. from leaving the country.<\/p>\n 30.\u00a0\u00a0On 10 February 2016 A.\u2019s and I.\u2019s names were put on the list of wanted persons.<\/p>\n 31.\u00a0\u00a0On 28 April 2016 I. was returned to the applicant by the police. On the next day the enforcement proceedings were closed.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 32.\u00a0\u00a0The Family Code provides that, in the event of parents\u2019 separation, a child\u2019s residence arrangements shall be determined by an agreement between them. If no such agreement can be reached, the child\u2019s residence arrangements shall be 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 any 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 to createproper 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\u2013Article 65).<\/p>\n 33.\u00a0\u00a0The parent residing separately from the child is entitled to maintain contact with the child and 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 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 provided for by civil-procedure law may be taken against him or her. If that parent systematically refuses to comply with the court decision, a court may, following 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).<\/p>\n 34.\u00a0\u00a0A 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).<\/p>\n 35.\u00a0\u00a0Parents are entitled to seek the return of their child from any person who retains him or her without any legal basis. In the event of a dispute, parents are entitled to apply to a court. A court may reject the application after taking into account the child\u2019s opinion if it establishes that returning the childto the parents is contrary to his or her interests (Article 68 \u00a7\u00a01).<\/p>\n 36.\u00a0\u00a0Article 196 \u00a7 3 of the Code of Civil Procedure provides that a court decides on the claims submitted by a claimant. However, the court may go beyond those claims in cases provided for by the federal law.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0SCOPE OF THE CASE BEFORE THE COURT<\/p>\n 37.\u00a0\u00a0The Court notes that the applicant raised several new complaints under Articles 8 and 14 of the Convention in her reply to the Government\u2019s observations. In particular, she complained that the decision to make a residence order in respect of her son in favour of the boy\u2019s father had amounted to discrimination on grounds of sex, and that the length of both the judicial proceedings in which she had sought I.\u2019s return from his grandmother and the ensuing enforcement proceedings had been excessive.<\/p>\n 38.\u00a0\u00a0In the Court\u2019s view, the new complaints raised by the applicant are not an elaboration of her original complaint lodged with the Court on 5\u00a0December 2014 and communicated to the Government on 4 June 2015. The Court willtherefore not to examine them (for a similar reasoning, seeNuray\u015een v. Turkey (no.\u00a02), no. 25354\/94, \u00a7 200, 30 March 2004; Melnik v.\u00a0Ukraine, no.\u00a072286\/01, \u00a7\u00a7 61-63, 28 March 2006; Kopylov v. Russia, no.\u00a03933\/04, \u00a7\u00a7\u00a0109-10, 29 July 2010; and Antonyuk v. Russia, no.\u00a047721\/10, \u00a7\u00a7 93-94, 1\u00a0August 2013).<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n 39.\u00a0\u00a0The applicant complained that issuing a residence order in respect of her son in favour of the boy\u2019s father had violated her right to respect for her family life. She 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 40.\u00a0\u00a0The Government submitted that the applicant had failed to exhaust domestic remedies, because she had not lodged a cassation appeal against the residence order with the Supreme Court of Russia.They relied on Abramyan and Others v. Russia ((dec.), nos. 38951\/13 and 59611\/13, 12\u00a0May 2015).<\/p>\n 41.\u00a0\u00a0The applicant submitted that she had lodged her application before the Court had pronounced its judgment in the case ofAbramyan and Others(cited above). When lodging her application, she therefore could not have anticipated that the Court would recognise a second cassation appeal to the Supreme Court of Russia as an effective remedy. She further submitted that Abramyan and Others should not be applied to cases where the passage of time could cause irreparable damage. An application to the Supreme Court would have been time-consuming and would have offered little prospect of success. It would therefore have unnecessarily prolonged her separation from her son, whomat that point she hadnot seen for more than ten months. Lastly, given that E. had died in a car accident eight days after the first cassation appeal had been rejected, it would have made no sense to lodge a second cassation appeal after such a substantial change of circumstances.<\/p>\n 42.\u00a0\u00a0The Court has already rejected similar objectionsby the Russian Government in many caseswhere the applicants had lodged their applications before the Courthad pronounced its judgment in the case of Abramyan and Others(cited above, \u00a7\u00a7 76-96, where the Court recognised the recently reformed two-tier cassation appeal procedure as an effective remedy; see, for example, Novruk and Others v. Russia, nos. 31039\/11 and 4\u00a0others, \u00a7\u00a7\u00a070-76, 15\u00a0March 2016; Kocherov and Sergeyevav. Russia, no.\u00a016899\/13, \u00a7\u00a7\u00a064-69, 29 March 2016; and McIlwrath v. Russia, no.\u00a060393\/13, \u00a7\u00a7 85-95, 18 July 2017).<\/p>\n 43.\u00a0\u00a0The Court does not see any reason to reach a different conclusion in the present case. The applicant lodged her application with the Court on 5\u00a0December 2014, that is before the Court pronounced its judgment in the case of Abramyan and Others. She can no longer avail herself of the remedy in question, as the time-limit for using it has expired. Accordingly, the Court rejects the Government\u2019s objection as to the non-exhaustion of domestic remedies.<\/p>\n 44.\u00a0\u00a0The Court further notes that this complaint is not manifestly ill\u2011founded 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 45.\u00a0\u00a0The Government submitted that the decision to issue the residence order in favour of the father had been lawful and based on the best interests of the child. The judge had assessed the parents\u2019 character references, the real estate they owned, their living conditions andfamily situation. In particular, the judge had taken into account that the applicant was the single mother of an adolescent daughter, and that E. lived with his mother, who could take care of the boy while E. was at work.<\/p>\n 46.\u00a0\u00a0The Government conceded that the childcare authorities\u2019report of 15 April 2014 on which the judge had relied had been found to be based on incorrect and incomplete information. However, they submitted that this had been revealed after the residence order had become final. Therefore, that fact could no longer be taken into account by the courts, including during the examination of the applicant\u2019s cassation appeal. The applicant could have asked to have the case reopened on account of a newly discovered circumstance, but she had not done so. In any event, it was for the national courts to assess the evidence before them. It was not the Court\u2019s role to determine whether a particular piece of evidence was necessary to decide a case. Given that the national authorities had had the benefit of direct contact with all the persons concerned, the Court could not substitute itself for the domestic authorities in the exercise of their responsibilities regarding child residence and contact issues.<\/p>\n 47.\u00a0\u00a0The Government further submitted that I. had not been personally heard by the courts because under domestic law only the opinion of a child over ten years old had to be taken into account (see paragraph 34 above).I.had been four years old at the material time and, due to his age, would have been unable to understand and adequately answer the judge\u2019s questions. In any event, the parties had not asked that he be heard by the judge or assessed by a psychologist.<\/p>\n 48.\u00a0\u00a0The Government also submitted that in cases concerning child adoption and children being taken into care the Court had taken into account that perceptions as to the appropriateness of intervention by public authorities in the care of children varied from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area (see G.H.B. v. the United Kingdom (dec.), no. 42455\/98, 4\u00a0May 2000, and Eglert v. Sweden (dec.), no. 39432\/04, 20 September 2007). They argued that the same approach could be applied in cases concerning residence order disputes between parents. They maintained that, in the present case, the courts of the Chechen Republic of Russia had attached particular weight to the child\u2019s origin, his Muslim religion,and traditions of the Chechen people. In particular, the court had taken into account that, according to Chechen traditions, in the event of parents\u2019 separation, as a rule, a child was raised by the father\u2019s family. Given that Russia was a multicultural and multi\u2011denominational State, the domestic courts had not overstepped the wide margin of appreciation afforded in such cases.<\/p>\n 49.\u00a0\u00a0Lastly, the Government submitted that the domestic courts had been justified in going beyond the parties\u2019 claims and making a residence order in respect of the child in favour of the father in the absence of an explicit request by him. Such a possibility had been provided for by the domestic law. In particular, under Article 65 of the Family Code, if parents could not reach an agreement as to a child\u2019s residence arrangements, such arrangements had to be determined by a court order (see paragraph 32 above). It was significant that I. had been living with his father, who had objected to the applicant\u2019s application for a residence order under which I. would live with her. When rejecting the applicant\u2019s application, the domestic court had had to make a residence order in favour of I.\u2019s father, in order to avoid uncertainty as to the boy\u2019s residence arrangements.<\/p>\n (b)\u00a0\u00a0The applicant<\/p>\n 50.\u00a0\u00a0The applicant submitted that the domestic courts had not conducted an in-depth examination of the entire family situation or a whole series of factors, in particular factors of a factual, emotional, psychological, material and medical nature (see Antonyuk, cited above, \u00a7 134). They had disregarded the fact that I. had lived with his motherfrom birth until his abduction by his father. They had also refused to take into account the fact that E. had been convicted of a criminal offence for assaulting the applicant. They had based their decisions on erroneous presumptions and false information provided by the Grozny childcare authorities. The childcare authorities\u2019 report of 15\u00a0April 2014 on which the courts had relied had later been found to contain incorrect and incomplete information. The domestic courts had uncritically accepted that report without enquiring why the childcare authorities had not spoken to the applicant or why I. had not been assessed by a psychologist. Even after that report had been exposed as false and the applicant had raised that circumstance before the higher courts \u2013 which had had the authority to quash the decisions of the lower courts on the grounds of significant violations of substantive or procedural law influencing the outcome of the proceedings \u2013 the higher courts had upheld the residence order in E.\u2019s favour.<\/p>\n 51.\u00a0\u00a0The applicant further submitted that the domestic courts had inferred from the mere fact that she was a working single mother with another child, and the fact that she had placed I. in a nursery, that she was unable to create proper conditions for her son\u2019s upbringing and development. They had not explained how I.\u2019s attendance at a nursery school despite his medical condition \u2013 for which he had been receiving proper treatment in Moscow \u2013 could have had a \u201cdisastrous impact\u201d on him. The Moscow childcare authorities had found that the applicant\u2019s home had everything necessary for a small child. The domestic courts had disregarded that report and had asked the Grozny childcare authorities to assess E.\u2019s living conditions, although E. had never asked for a residence order in his favour.<\/p>\n 52.\u00a0\u00a0The applicant also complained that the domestic courts had accepted without any verification E.\u2019s assertions that he had not hindered hercontact with the child, despite her claims to the contrary. The domestic courts had not explained why they had considered the continuity of contact between her and I. to be an established fact on the basis of E.\u2019s assertions alone.<\/p>\n 53.\u00a0\u00a0Lastly, the applicant took issue with the Government\u2019s reference to Chechen traditionsthat, in the event of parents\u2019 separation,a child was to be raised by the father\u2019s family. According to the applicant, it demonstrated that women in Chechnya were discriminated against and that the decisions in her case had also been based on a discriminatory assumption.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 54.\u00a0\u00a0In determining whether the refusal of custody or accesswas 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 power of appreciation (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.\u00a0v.\u00a0Finland, no. 18249\/02, \u00a7 52, 9 May 2006; and Z.J.v. Lithuania, no.\u00a060092\/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 a whole series of factors, in particular factors 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 (seeNeulinger and Shuruk v.\u00a0Switzerland [GC], no. 41615\/07, \u00a7 139, ECHR 2010, andAntonyuk, cited above, \u00a7 134).<\/p>\n 55.\u00a0\u00a0The margin of appreciation to be afforded to the national authorities with competence 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 contact rights, and as regards any legal safeguards designed to secure 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 56.\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 57.\u00a0\u00a0Lastly, the 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-making 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, an 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.\u00a0Lithuania, cited above, \u00a7 100, with further references).<\/p>\n (b)\u00a0\u00a0Application to the present case<\/p>\n 58.\u00a0\u00a0The Court considers that the decision to issue a residence order in favour of the father amounted to an interference with the applicant\u2019s right to respect for her family life (see Antonyuk, cited above, \u00a7 119; see also G.B.v.\u00a0Lithuania, no.\u00a036137\/13, \u00a7 87, 19 January 2016).<\/p>\n 59.\u00a0\u00a0In so far as the applicant complains that the domestic courts acted unlawfully by going beyond E.\u2019s claims and making a residence order in his favour although he had never asked for it, the Court notes that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. The \u201claw\u201d is therefore the enactment in force as the courts with competence have interpreted it. While the Court should exercise a certain power of review in this matter, since failure to comply with domestic law entails a breach of Article 8, the scope of its task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic courts have interpreted and applied national law, except in cases of flagrant non\u2011observance or arbitrariness (see Goranova-Karaeneva v.\u00a0Bulgaria, no.\u00a012739\/05, \u00a7 46, 8\u00a0March 2011; Galovi\u0107 v. Croatia (dec.), no. 54388\/09, \u00a7 58, 5 March 2013; and Lachowski v. Poland (dec.), no.\u00a09208\/05, \u00a7 78, 6 May 2014). The Court cannot discern any such flagrant non-observance or arbitrariness in the present case. The courts which examined the applicant\u2019s case found that it belonged to the category of cases in which, in accordance with Article 196 \u00a7\u00a03 of the Code of Civil Procedure, they were permitted to go beyond the parties\u2019 claims. The Court accepts that the interpretation of the relevant legislation by the courts in the applicant\u2019s case was not such as to render the contested decisions unlawful in Convention terms.<\/p>\n 60.\u00a0\u00a0Further, it has not been disputed between the parties that the interference pursued the legitimate aim of protecting the rights of others, namely those of I. and E. It remains to be examined whether the interference was \u201cnecessary in a democratic society\u201d.<\/p>\n 61.\u00a0\u00a0Before turning to the analysis of the reasons advanced by the domestic courts, it is important to note that the scope of the residence order of 17 April 2014 was limited to determining where I. would live; it did not affect I.\u2019s legal relationship with the applicant, and nor did it take away her parental authority. It is also significant that it was open to the applicant to apply for contact rights.<\/p>\n 62.\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 issue a residence order in favour of one of the two separated parents, as the relevant domestic law did not provide for the possibility to issue a shared residence order (see Antonyuk, citedabove, \u00a7\u00a0121).<\/p>\n 63.\u00a0\u00a0It is not the Court\u2019s task to take the place of the domestic authoritiesin 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 (see Gruzdeva v. Russia (dec.), no.\u00a013553\/09, \u00a7\u00a071, 8 July 2014). 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 54 above). A failure to make a sufficiently thorough examination will amount to a violation of Article 8 (see Antonyuk, cited above, \u00a7 146). 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.<\/p>\n 64.\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 65.\u00a0\u00a0At the outset the Court takes note of the Government\u2019s submission that the decision to make the residence order in favour of the father had been based on the custom of Muslim Chechen people, according to which, in the event of parents\u2019 separation, a child was raised by the father\u2019s family (see paragraph 48 above). It observes, however, that the Government\u2019s allegation does not find support in the domestic decisions and the Court will not therefore take it into account when examining the case.<\/p>\n 66.\u00a0\u00a0The domestic courts found that the applicant would not have enough time to devote to her son because she was a working single mother with another child from a previous marriage. The courts stressed, in particular, that because of her work the applicant hadplaced I. in a nursery despite his medical condition (see paragraph 17 above). The Court notes that the domestic courts did not rely on any medical or other expert evidence showing that I.\u2019s health prevented him from attending a nursery school. It is therefore not persuaded that the domestic courts convincingly demonstrated that I.\u2019s attendance at a nursery school could have \u201cdisastrous\u201d consequences for him. It follows that the domestic courts inferred the applicant\u2019s inability to create proper conditions for I.\u2019s upbringing and development from the mere fact that she was a working single mother of two children.<\/p>\n 67.\u00a0\u00a0The Court further notes that the domestic courts rejected the factors relating to each parent\u2019s living and financial conditions as not decisive. They did not examine any other factors that might have been relevant for determining the best interests of the child (see the list of possible relevant factors as provided for by the Russian Family Code in paragraph32 and as defined in the Court\u2019s case-law in paragraph54 above). No expert or other specialist assessment was performed to establish the parenting abilities of each of the parents and the child\u2019s attachment to each of them. The domestic courts did not make any assessment of the fact that E. had a criminal record, although the applicant had produced documents confirming it at the hearing. Nor did they assess how long I. had lived with each of the parents and whether he had established a stable environment and routine involving one of them. They also failed to assess the potential impact on I. of a separation from his half-sister, with whom he had lived from birth. Lastly, the domestic courts did not examine in any detail the applicant\u2019s complaint that E. had prevented her from seeing her son, limiting their assessment to stating that E. had denied the allegation.<\/p>\n 68.\u00a0\u00a0The evidential basis for the domestic courts\u2019 decisionsincluded \u2013 apart the parents\u2019 submissions and documents relating to their income, living conditions and character references from their employers and the neighbourhood \u2013the childcare authorities\u2019 report of 15\u00a0April 2014 (see paragraph 14 above) and the oral statements by an official from the childcare authorities who simply reiterated the findings contained in that report (see paragraph 16 above). Whilst basing their decisions on that report to a significant degree, the courts failed to assess it, and merely endorsed its findings. They made no meaningful attempts to verify whether the reporthad beenprepared after a thorough examination of the entire family situation and all relevant factors, including meetings with all interested parties such as the applicant and I. It later transpired that that report was based on incorrect and incomplete information, and particularly on information supplied exclusively by E. which had not been checked (see paragraph 21 above).<\/p>\n 69.\u00a0\u00a0From the information considered above, the Court concludes that the domestic courts\u2019 examination of the case was not sufficiently thorough. It follows that the decision-making process was deficient and did not therefore allow the best interests of the child to be established. The Court accordingly finds that the domestic authorities did not adduce relevant and sufficient reasons for their decision to make a residence order in favour of the child\u2019s father. Notwithstanding the domestic authorities\u2019 margin of appreciation, the interference was not proportionate to the legitimate aim pursued.<\/p>\n 70.\u00a0\u00a0There has therefore been a violation of Article 8 of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n 71.\u00a0\u00a0The applicant also complained of a violation of Article 13 of the Convention, which reads as follows:<\/p>\n \u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n 72.\u00a0\u00a0The applicant submitted that she had not had an effective remedy to protect her family life. The decisions of the domestic courts had been based on incorrect and incomplete information provided by the Grozny childcare authorities. Even after that information had been exposed as false, she had been unable to have the case reconsidered by higher courts.<\/p>\n 73.\u00a0\u00a0The Government submitted that the applicant had had an effective remedy for her complaint under Article 8 of the Convention. In particular, she could have lodged a cassation appeal against the residence order with the Supreme Court of Russia.<\/p>\n 74.\u00a0\u00a0The Court reiterates that Article 13 guarantees the availability at national level of a remedy in respect of grievances which can be regarded as \u201carguable\u201d in terms of the Convention. Such a remedy must allow the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they discharge their obligations under Article 13 (see Hasan and Chaush v. Bulgaria [GC], no. 30985\/96, \u00a7 96, ECHR 2000\u2011XI). The effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Kud\u0142a v. Poland [GC], no. 30210\/96, \u00a7 157, ECHR 2000\u2011XI).<\/p>\n 75.\u00a0\u00a0It has not been disputed between the parties that the applicant had an arguable claim under Article 8 within the meaning of the Court\u2019s case\u2011law, and was thus entitled to a remedy satisfying the requirements of Article 13.<\/p>\n 76.\u00a0\u00a0The Court notes that the applicant was able to avail herself of a remedy under the national law: she lodged a judicial application for a residence order in her favour in respect of her son. She was able to present her arguments, and the judicial authorities at three levels of jurisdiction examined them. It is undisputed that the courts had the power to make the residence order she sought. The fact that her application was rejected does not indicate, as such, that the remedy in question was ineffective. Moreover, after it was revealed that the childcare authorities\u2019 report was incorrect and incomplete, it was possible for the applicant to apply for her case to be reopened on account of a newly-discovered circumstance (see paragraph 46 above). The applicant did not explain why she had not used that procedure.<\/p>\n 77.\u00a0\u00a0In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article\u00a035 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 78.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 79.\u00a0\u00a0The applicant claimed 26,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 80.\u00a0\u00a0The Government submitted that the claim was excessive.<\/p>\n 81.\u00a0\u00a0The Court awards the applicant EUR 12,500 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 82.\u00a0\u00a0The applicant also claimed EUR 2,989.46 for transport expenses in the domestic proceedings. On many occasions she had had to travel from Moscow, where she lived, to Grozny, where her case was being examined. She submitted copies of her tickets. She also claimed EUR 3,156.50 for her legal representation before the Court. She submitted a legal fee agreementin accordance with which, if she \u201cwon\u201d her case and was awarded compensation by the Court, she was to pay her lawyers EUR 150 per hour. She also submitted lawyers\u2019 time-sheets and relevant invoices. Lastly, she claimed EUR 89.58 for postal expenses.<\/p>\n 83.\u00a0\u00a0The Government submitted that the travel expenses were unrelated to the proceedings before the Court and that, in any event, the applicant had not submitted boarding passes. The postal expenses were excessive. The applicant could have chosen a cheaper postal service. Lastly, the Government submitted that contingency fee agreements were not enforceable under Russian law.<\/p>\n 84.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Courtconsiders it reasonable to award the sum of EUR 2,500 covering costs under all heads, plus any tax that may be chargeable to the applicant.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 85.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the complaint concerning the decision to grant the residence order in respect of the applicant\u2019s son in favour of his father admissible, and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violationof Article 8 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable,in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 10 April 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Fato\u015f Arac\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Helena J\u00e4derblom
\nLuis L\u00f3pez Guerra,
\nHelen Keller,
\nDmitry Dedov,
\nAlena Pol\u00e1\u010dkov\u00e1,
\nGeorgios A. Serghides,
\nJolien Schukking, judges,
\nand Fato\u015f Arac\u0131, DeputySection Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n