Information Note on the Court\u2019s case-law 233
\nOctober 2019<\/p>\n
Zelikha Magomadova v. Russia<\/strong> – 58724\/14<\/a><\/p>\n Judgment 8.10.2019 [Section III]<\/p>\n Article 8<\/strong> Widow denied access to her children by relatives-in-law in defiance of court orders and later arbitrarily deprived of parental authority: violation<\/p>\n Facts \u2013 The applicant is a widow with six children (born between 1997 and 2006). After the death of her husband, relations with her in-laws deteriorated. In February 2010, one of her brothers-in-law, E.B., took her to her mother\u2019s home in another village within the Chechen Republic. Since then the applicant has had no access to her children, who have remained with her husband\u2019s family. By an administrative decision dated April 2010, E.B. was appointed as the children\u2019s legal guardian. Three sets of court proceedings ensued, all brought by E.B., in which he sought to have the applicant deprived of her parental authority.<\/p>\n (1)\u00a0\u00a0Between August and September 2010 the courts rejected E.B.\u2019s first claim (and annulled his guardian status), finding that there was no evidence to prove his allegations that the applicant had neglected her parental duties or ill-treated the children. Although the courts ordered that the children should live with their mother, the judgment was never enforced because the bailiff in charge repeatedly refused to commence the enforcement procedure.<\/p>\n (2)\u00a0\u00a0The proceedings for deprivation of parental authority were then reopened in 2011 on the basis of newly discovered circumstances, namely that the applicant had been seen in the cars of unknown men on several occasions. In the view of the courts, this proved that she was cohabiting with a man and thus had an \u201cimmoral lifestyle\u201d. Yet in January 2012, E.B.\u2019s claim was again rejected for lack of evidence. However, given that the children had by that time been living with their paternal relatives for two years, the court ordered that they should continue living with E.B. (who was reappointed as their legal guardian). The court made arrangements for the children to have contact with their mother. That part of the judgment too was never enforced, despite several applications.<\/p>\n (3)\u00a0\u00a0Ultimately, in the third set of proceedings in 2013 (and in 2014, on appeal), the courts granted E.B.\u2019s claim to have the applicant deprived of her parental authority. They found that, despite the arrangements ordered in the judgment of 2012, the applicant had failed to contact her children \u2013 especially her two elder daughters (aged around 14 and 16), who by that time were at a medical college in Grozny \u2013 or to support them financially. The courts concluded that she had therefore avoided bringing up her children.<\/p>\n Law \u2013 Article\u00a08: It transpired from the reasons set forth below that the interference in the applicant\u2019s parental rights had not been \u201cnecessary in a democratic society\u201d. The domestic authorities had overstepped their margin of appreciation.<\/p>\n (a)\u00a0\u00a0Consideration of authorities\u2019 failure to enforce previous judgments, as background information \u2013 While only the third set of court proceedings was admissible for the Court\u2019s examination, previous events could nevertheless be of relevance as background information. The latest situation had in fact been prompted by the authorities\u2019 inaction in the enforcement proceedings in respect of the judgments of August 2010 and January 2012. When the 2012 judgment had become final and enforceable, the applicant had previously had no contact with her children for over two years, with all the consequences that this might have had for relations between them, and for the children\u2019s physical and psychological well-being. It had thus been particularly important for the authorities to act with exemplary diligence and expediency. On the contrary, while fully aware of the applicant\u2019s situation, the authorities had remained passive and taken no tangible steps to ensure and facilitate the applicant\u2019s reunion with her children.<\/p>\n Timing \u2013 Despite the applicant\u2019s numerous requests, the enforcement proceedings had only commenced more than five months after the date on which the 2012 judgment had previously become final and enforceable. The enforcement proceedings had been ongoing for more than sixteen months before they were terminated.<\/p>\n Steps \u2013 The bailiff had done no more than (i) obtain a \u201cwritten declaration\u201d from E.B. confirming that he would not obstruct the applicant\u2019s contact with her children, and (ii) inform E.B. of the risk that he might be found administratively liable. No other steps had been taken, despite the fact that the applicant had sought the authorities\u2019 protection and assistance in connection with the hostile attitude of her relatives-in-law, who had threatened her with physical violence and obstructed all contact between her and the children, including communications by telephone.<\/p>\n Applicant\u2019s attitude \u2013 Throughout all sets of proceedings, the applicant had consistently reaffirmed her intention to take care of her children, and had sought access to them and their return, repeatedly contacting the competent domestic authorities about this. Faced with their inaction, she had even attempted to approach her two elder daughters herself, but in vain given the extremely negative attitude of the girls.<\/p>\n (b)\u00a0\u00a0Arbitrariness in domestic courts\u2019 findings and application of national law \u2013 The Court then assessed the grounds on which the domestic courts had relied when depriving the applicant of her parental authority.<\/p>\n Failure to establish contact with the children \u2013 Not only had the authorities remained idle for years when faced with her situation, but in reaching that conclusion, the domestic courts had chosen to shift responsibility for this flagrant inaction onto the applicant.<\/p>\n Failure to provide financial support \u2013 It remained unclear whether the applicant\u2019s alleged failure to provide financial support had been based on any evidence. Even assuming that it was accurate, the applicant had not been solely responsible for this situation. In particular, given the long-standing conflict between the applicant and her late husband\u2019s relatives, it had not been convincingly demonstrated in the domestic proceedings that she had a realistic opportunity to provide financial support, communicate with her late husband\u2019s relatives and ensure that such support would reach her children.<\/p>\n Concluding assessment \u2013 In the light of the foregoing objective obstacles, the unreasonableness of those court findings was so striking and palpable on the face of it that they can only be regarded as grossly arbitrary.<\/p>\n By relying on such grounds for depriving the applicant of her parental authority, the courts had also arbitrarily applied the relevant provisions of national law. Indeed, in a ruling of 1998 the Supreme Court of Russia had stated that: (i) only in the event of proven guilty conduct might parents be deprived of their parental authority on grounds similar to those in the case; (ii) parents who failed to fulfil their parental obligations for reasons beyond their control should not be deprived of their parental authority; and (iii) even where a parent\u2019s guilty conduct was established, deprivation of parental authority should not be automatic.<\/p>\n (c)\u00a0\u00a0Deficiency of decision-making process when establishing the best interests of the children \u2013 The relevant court decisions had failed to give due consideration to the best interests of the children.<\/p>\n Assessing psychosocial circumstances \u2013 In the proceedings under examination, no expert opinion had ever been sought on such important questions as the degree of the children\u2019s attachment to their mother, the effect that severance of all ties with her might have had on them and her parenting abilities, among others.<\/p>\n No reasons had been advanced to explain why such a drastic measure as depriving the children\u2019s mother \u2013 their only surviving parent \u2013 of her parental authority would be in their interests, nor whether any weighty considerations relating to their health and development could have justified that measure.<\/p>\n No attempts had been made to explore the effectiveness of less far-reaching alternatives, before severing the applicant\u2019s ties with the children by depriving her of her parental authority.<\/p>\n Weighing up the children\u2019s views \u2013 The first-instance court had confined itself to referring briefly to the opinion of the applicant\u2019s two elder daughters (born in 1997 and 1999), who had stated that they did not want to see their mother, as \u201cshe [had] dishonoured them\u201d with her immoral life. It had ignored the applicant\u2019s arguments that she had had no contact with her children at all and that her late husband\u2019s relatives had set them against her.<\/p>\n Of the other four children (born between 2000 and 2006), none had been heard in the proceedings under examination. As regards the two elder of these, the Court noted the applicant\u2019s argument that this failure had been in breach of domestic law. As for the two younger ones, no expert opinion had been sought on whether it was possible, given their age and maturity, to interview them in court, if need be with the assistance of a specialist in child psychology.<\/p>\n In any event, in the Court\u2019s view, the right of a child to express his or her own views should not be interpreted as effectively giving an unconditional veto power to children without any other factors being considered and an examination being carried out to determine their best interests. Indeed, those views are not necessarily immutable, and their objections are not necessarily sufficient to override the parents\u2019 interests, especially in having regular contact with their child. Moreover, children may be palpably unable to form and articulate an opinion as to their wishes \u2013 for example, because of a conflict of loyalty and\/or their exposure to the alienating behaviour of one parent.<\/p>\n Conclusion: violation (unanimously).<\/p>\n Article\u00a041: EUR 30,000 in respect of non-pecuniary damage.<\/p>\n (Compare Strand Lobben and Others v. Norway [GC], 37283\/13<\/a>, 10 September 2019, Information Note\u00a0232; and Haddad v. Spain, 16572\/17, 18 June 2019, Information Note\u00a0230)<\/p>\n
\nPositive obligations<\/strong>
\nArticle 8-1<\/strong>
\nRespect for family life<\/strong><\/p>\n