The ECHR found a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 8 of the Convention for the Protection of Human Ri Сведения: 2020-01-26 09:43:52

The ECHR judgment of April 9, 2019 in the case of V.D. (V.D.) and Others v. Russia (application No. 72931/10).

In 2010, the applicants were assisted in preparing the application. Subsequently, the application was communicated to the Russian Federation.

The case has successfully examined an application about a violation of the applicants' rights to respect for their family life by depriving the first applicant of custody of the child of the first applicant and transferring the child to the care of his biological parents, as well as the refusal to provide the applicants with the opportunity to communicate with the child. The case did not violate the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms in connection with the transfer of the child to his biological parents and the termination of custody of the child of the first applicant, however, there was a violation of the requirements of Article 8 of the Convention because the Russian authorities did not provide an opportunity to maintain family ties between the applicants and the child.


Circumstances of the case


The first applicant was appointed guardian of a child who had a number of serious health problems and whose parents decided that they could not meet the special needs of the child.

The remaining applicants were foster children of the first applicant. The child in the present case was transferred to the first applicant at the age of eight months and lived with her for the first nine years of his life. Subsequently, at the request of biological parents, the child was returned to them.


QUESTIONS OF LAW


Preliminary question. The first applicant was not a biological relative of the child. In addition, she was deprived of the status of a child's guardian, therefore, she had no legal grounds to act on his behalf in court or other proceedings in the Russian Federation. The child was transferred to his biological parents, and during the period related to the circumstances of the present case, he lived with them. These people had full parental rights in relation to the child, including, inter alia, the right to represent his interests. They did not authorize the first applicant to represent the child before the Court. Consequently, when examining a complaint before the Court, the first applicant is not entitled to speak on behalf of the child.

Regarding compliance with article 8 of the Convention. (a) Applicability. The relationship between the adoptive family and the adoptive child, who have lived together for many months, may constitute family life within the meaning of Article 8 § 1 of the Convention, despite the lack of biological relationships between them. The parties did not dispute the fact of the existence of family life between the first applicant and the adopted child prior to his transfer to biological parents. Indeed, despite the fact that there were no blood ties between these people, the adopted child from eight months old was under the constant care of the first applicant for the first nine years of her life. Other applicants, although they were minors, at different times were under the guardianship of the first applicant and lived with her and her child as a family from one to seven years, until the child in question was eventually transferred to biological parents. Close family ties and the fact that the first applicant assumed the role of mother for the child were recognized by the courts of the Russian Federation at various stages of the proceedings. In such circumstances, the relationship between the applicants and the adopted child constituted “family life” within the meaning of Article 8 § 1 of the Convention.

(b) Merits. (i) Termination of the first applicant's guardianship in respect of the child and transfer of the child to biological parents. There is now a broad consensus, including international law, in support of the idea that when making any decisions regarding children, the best interests of the child should be taken into account, which, depending on their nature and significance, may prevail over the interests of the parents. In particular, according to article 8 of the Convention, a parent cannot take such actions that could harm the health and development of the child. Nevertheless, the interests of the parents remain the factor that is taken into account when balancing all the interests involved in the case. The interests of the child are determined by the fact that the child’s relationship with his or her family should be maintained, unless it is proved that he or she is particularly unfavorable in the family. Consequently, family ties can only be broken in exceptional circumstances, and everything possible must be done to maintain personal relationships and, when appropriate, to “restore” the family. Article 8 of the Convention requires each State to endeavor to reunite biological parents with their children.

In the applicant’s case, the authorities of the Russian Federation faced a difficult choice: to allow the applicants, who were the de facto family for the child, to continue their relationship with him or take measures to return the boy to the biological family. In this regard, the authorities of the Russian Federation should have assessed and fairly balanced the competing interests of the adoptive child's parents and the applicants. The authorities of the Russian Federation should also have taken into account that, due to his physical and psychological abnormalities, the adopted child was in an extremely vulnerable position. Consequently, the authorities of the Russian Federation should have been particularly careful in assessing the interests of the adopted child and guaranteeing him increased protection, given his state of health.

The child spent the first nine years of his life under the care of the first applicant, and all this time she remained the child's guardian, fully taking on the role of his mother. Although the period under consideration was undoubtedly significant, this fact alone could not exclude the possibility of a child reuniting with his biological parents. Indeed, effective respect for the right to family life required that future relationships between parents and the adopted child be determined in the light of all relevant issues, and not just the length of time the child was in custody.

Indeed, the parents of the child silently (without express consent) agreed to the appointment of the first applicant as the guardian of the child. At the same time, they never renounced parental rights in relation to their son. Also, they were not limited in these rights and were not deprived of them. The courts of the Russian Federation established that although during the first eight years of the child’s life his parents did not maintain relations with him, they nevertheless supported him financially and complied with the first applicant’s requests regarding, inter alia, the provision of medicines and food for the child. They were present in the life of their son, as a result of which the first applicant could not really assume that the boy would remain under her care constantly. The custody decision was, by its nature, a temporary measure that could be terminated as soon as circumstances allowed, and any measures regarding temporary custody should have met the primary purpose of reuniting the child with biological parents.

The courts of the Russian Federation have carefully assessed the best interests of the child, taking due account of their state of health and special needs. In a number of court proceedings, they noted, in particular, the first applicant’s affection for the child and her sincere concern for him, her active approach to meeting the needs of the child and resolving issues related to his health, which ensured progress in his physical and mental condition and general improving his health. As for the biological parents, initially the authorities of the Russian Federation had doubts as to whether they were fit and able to provide for the needs of their son. In particular, the authorities of the Russian Federation pointed out the insufficient personal communication of the parents with the boy and urged the parents to take a more responsible attitude to their parental responsibilities. In this regard, the domestic courts rejected the first petition of the boy’s parents to transfer the son to their guardianship, noting that such a sudden transfer would injure the child and worsen his health, and that it was necessary to establish an adaptation period so that the child would get used to his biological parents. However, in the subsequent proceedings in the case, the courts of the Russian Federation recognized that the parents of the child could raise the boy. It should be noted that at that time already throughout the year there was a scheme for the resumption of communication between parents and a child. Making the decision in question, the courts of the Russian Federation, having duly examined the written evidence, including the conclusion of a psychological examination and written evidence, were convinced that the parents of the child had restored their relationship with their son, that they could adequately perceive his psychological characteristics, emotional state, needs and opportunities that they could provide the child with proper living conditions and that the child felt calm and comfortable with them.

By deciding on the transfer of the child to his biological parents and on the termination of the first applicant's custody of the child, the Government acted within the discretion granted to them and, in accordance with Article 8 of the Convention, aimed at ensuring the child's reunion with his parents. The Government submitted “relevant and sufficient” grounds for applying the measure complained of. Although the Court found that this decision caused the applicants emotional harm, their rights could not be placed above the interests of the child in the present case. The first applicant's arguments were examined and reasoned answers were given. The Court is convinced that the decision-making process was fair and that during it the applicants were provided with adequate protection of their rights guaranteed by Article 8 of the Convention. Thus, the interference with the applicants ’family life was“ necessary in a democratic society”.


RESOLUTION


There was no violation of Article 8 of the Convention in the case (adopted unanimously).

(ii) Applicants' access to an adopted child. The courts of the Russian Federation rejected the first applicant's complaints about the possibility of communicating with the adopted child, referring to the absence of any legal connection between her and the child after the termination of the guardianship agreement. The courts of the Russian Federation also noted the absence of biological relationship between the first applicant and the adopted child, which, according to the Family Code of the Russian Federation, ruled out any possibility for the first applicant to claim the possibility of communication with the child.

The Court has previously expressed its concern about the lack of flexibility in the provisions of the legislation of the Russian Federation governing the right of people to communicate with each other. These norms indicated a closed list of persons entitled to contact with the child, without any exceptions, taking into account the diversity of family situations and the best interests of the child. As a result, a person who did not have family ties with the child, but who took care of the child for a long time and formed a close personal relationship with him, was completely and automatically excluded from the child’s life and could not get the right to contact with the child under any circumstances, regardless of best interests of the child.

It follows from the decisions of the courts of the Russian Federation that the courts did not try to assess the special circumstances of the case and, in particular, (i) did not take into account the relationship that existed between the applicants and the child before the termination of the first applicant's guardianship over the child; (ii) did not consider whether contact between the child and the applicants was in the best interests of the child or not, and why; (iii) did not consider whether the interests of the biological parents of the child could prevail over the interests of the applicants or not, and why. In fact, in the final decision on this issue, the relevant court of the Russian Federation limited itself to indicating that the right to demand communication with the child under no circumstances could be granted to anyone other than those listed in the Family Code of the Russian Federation. The Court cannot consider this argument to be “relevant and sufficient” as a basis for refusing the applicants to see the child. The relevant decisions of the courts of the Russian Federation were not based on an assessment of the individual circumstances of a particular case and automatically excluded any possibility of maintaining family ties between the adopted child and the applicants.

The Government did not fulfill their duty to fairly balance the rights of all those affected in the case, taking due account of the circumstances of the case, which led to the non-observance of the applicants' right to respect for their family life.


RESOLUTION


In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).


COMPENSATION


In application of Article 41 of the Convention. The Court awarded all applicants a total of EUR 16,000 in respect of non-pecuniary damage.

 

 

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