The ECHR judgment of 08 October 2019 in the case of Zelikha Magomadova v. Russia (application No. 58724/14).
In 2014, the applicant was assisted in preparing the application. Subsequently, the application was communicated to the Russian Federation.
The case has successfully examined the application about the deprivation of the applicant's parental rights. The case has violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant is a widow with six children (born from 1997 to 2006). After the death of her husband, relations with her husband's relatives deteriorated. In February 2010, one of her husband’s relatives, E.B., drove the applicant to her mother’s house in another village in the Chechen Republic. Since then, the applicant has not had access to her children, who remained with her husband's relatives. By a decision of the local administration of April 2010, E.B. was appointed legal guardian of the applicant’s children. Then followed three stages of the proceedings, all initiated by E.B., in which he demanded that the applicant be deprived of her parental rights.
(1) Between August and September 2010, the courts refused E.B. in his first suit (and annulled his guardian status), finding that there was no evidence of his allegations that the applicant neglected her parental duties or abused the children. Although the courts ruled that the children should have lived with their mother, the court decisions were never enforced, since the bailiff regularly refused to initiate proceedings.
(2) The trial regarding the deprivation of parental rights was resumed in 2011 in connection with newly discovered circumstances, namely the fact that the applicant was seen several times in unfamiliar men’s cars. According to the courts, this proved that the applicant had cohabited with a man and thus led an “immoral lifestyle”. Nevertheless, in January 2012 the lawsuit of E.B. was repeatedly rejected due to lack of evidence. However, given that by that time the children had been living with their father’s relatives for two years, the court ruled that they should continue to live with E.B. (who was again appointed their guardian). The court ordered the children to see their mother. This part of the judgment was also not enforced, despite several relevant motions.
(3) As a result, during the third trial in 2013 (and in 2014, upon a complaint), the courts of the Chechen Republic granted the claim of E.B. on deprivation of the applicant's parental rights. They found that, despite the possibilities provided for by the decision of 2012, the applicant did not meet with her children, especially with her elder daughters (who were about 14 and 16 years old), who at that time were studying as a doctor at a medical college in Grozny, and also did not support children financially. The courts concluded that the applicant avoided raising her children.
QUESTIONS OF LAW
Regarding compliance with article 8 of the Convention. For the reasons stated below, it follows that the interference with the applicant’s parental rights was not “necessary in a democratic society”. The authorities of the Russian Federation went beyond the limits of their freedom of discretion.
(a) The failure of the authorities of the Russian Federation to enforce the first court decisions (background). Although the European Court could only have considered a third trial at the domestic level, previous events could also have significance as a background to the case. The resulting situation was actually provoked by the inaction of the authorities to enforce court decisions of August 2010 and January 2012. When the 2012 court decision became final and entered into force, the applicant at that time no longer communicated with the children for two years with all the ensuing consequences for their relationship, as well as for the physical and psychological well-being of the children. Thus, it was especially important for the authorities of the Russian Federation to act with special zeal and urgency. However, fully aware of the applicant’s situation, the authorities remained passive and did not take any significant measures to ensure the applicant’s meeting with the children and to assist her in this.
Dates. Despite the applicant’s numerous requests, enforcement proceedings began more than five months after the date of entry into force of the 2012 judgment. Enforcement proceedings lasted 16 months before it was completed.
Measures. The bailiff did not take any action other than (i) took a “written statement” from E.B. confirming that he would not prevent the applicant from communicating with the children, and (ii) informed E.B. about the risk of administrative liability. No other actions were taken, despite the fact that the applicant asked the authorities for protection and assistance in connection with the hostile attitude of the relatives of her deceased husband, who threatened her with physical harm and prevented all contacts with children, including telephone conversations.
The applicant's conduct. Throughout all the proceedings, the applicant constantly confirmed her intention to take care of her children, asked for access to them and to return the children to her, regularly making these requests to the competent authorities of the Russian Federation. Faced with the authorities 'inaction, the applicant tried to contact her two eldest daughters herself, but to no avail, given the girls' extremely negative attitude towards her.
(b) Arbitrary findings of the courts of the Russian Federation and the application of domestic law. The Court assesses the grounds invoked by the courts of the Russian Federation when they deprived the applicant of parental rights.
Lack of contact with children. The Government not only remained inactive for years when they encountered the applicant’s situation, but in their decisions the courts of the Russian Federation decided to shift the responsibility for the apparent inaction to the applicant.
Lack of financial support for children. It remained unclear whether the applicant's alleged failure to provide financial support to the children was supported by any evidence. Even assuming that this statement was true, not one applicant was responsible for this situation. In particular, given the prolonged conflict between the applicant and the relatives of her deceased husband, it was not convincingly demonstrated in the courts of the Russian Federation that the applicant had a real opportunity to provide financial support, communicate with her husband's relatives and ensure that financial assistance would reach her children.
Final conclusions. In view of the above objective circumstances, the groundlessness of the findings of the courts of the Russian Federation was so startling and obvious that they can only be considered obviously arbitrary.
Referring to such grounds when the applicant was deprived of parental rights, the courts of the respondent Government arbitrarily applied the relevant provisions of the legislation of the Russian Federation. Indeed, in a judgment of 1998, the Supreme Court of the Russian Federation indicated the following:
(i) only in the case of proven guilty conduct can parents be deprived of parental rights on grounds similar to the present case;
(ii) parents who do not fulfill their obligations for reasons beyond their capabilities should not be deprived of parental rights;
And (iii) even if the guilty behavior of the parents is established, the deprivation of parental rights should not be carried out automatically.
(c) Deficiencies in the decision-making process in determining the best interests of children. Assessment of psychosocial circumstances. In the course of the processes under review, the expert’s opinion was never requested on such important issues as the degree of children's attachment to the mother, the consequences of breaking all ties with the mother for the children and the parental abilities of the applicant herself.
No explanation was given as to why depriving the mother, the only living parent of the children, of parental rights would be in the interest of the children, as well as what significant arguments regarding the health and development of the children could justify the application of such a measure.
Furthermore, no attempt was made to investigate the effectiveness of less stringent alternative solutions before breaking the applicant’s ties with her children, depriving her of her parental rights.
Taking into account the views of children. The trial court limited itself to a brief reference to the opinion of the applicant’s two eldest daughters (born in 1997 and 1999), who claimed that they did not want to see their mother because “she had covered them with shame” because of her immoral lifestyle. The court ignored the applicant's arguments that she had no contact with her children at all and that the relatives of her deceased husband had set children against her.
None of the four other children (born 2000–2006) were heard in court. As regards the two oldest children from this group, the Court notes the applicant's argument that such an omission was contrary to the legislation of the Russian Federation. Regarding the two youngest children, no expert opinion was requested on the question of whether it was possible, given their age and development, to question them in court, if necessary, with the help of a child psychologist.
In any case, in the Court's opinion, the right of the child to express an opinion should not be interpreted as giving them the right of an unconditional veto without taking into account other factors and without considering the situation to determine the best interests of the child. Indeed, children's opinions are not necessarily unchanged, and their objections will not always prevail over the interests of parents, especially in the field of regular communication with the child. Moreover, children may be clearly unable to formulate and voice their wishes, for example, due to a conflict of loyalty and / or due to repulsive behavior on the part of one of the parents.
In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 30,000 in respect of non-pecuniary damage.