Постановление ЕСПЧ от 10.04.2018 <Дело Леонов (Leonov) против России> (жалоба N 77180/11) [англ.]

EUROPEAN COURT OF HUMAN RIGHTS
THIRD SECTION

CASE OF LEONOV v. RUSSIA
(Application no. 77180/11)

JUDGMENT <*>
(Strasbourg, 10.IV.2018)

FINAL
(10.VII.2018)

——————————–
<*> This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

 

In the case of Leonov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena , President,

Luis  Guerra,

Helen Keller,

Dmitry Dedov,

Alena ,

Georgios A. Serghides,

Jolien Schukking, judges,

and  , Deputy Section Registrar,

Having deliberated in private on 17 October 2017 and 13 March 2018,

Delivers the following judgment, which was adopted on the latter date:

 

PROCEDURE

 

  1. The case originated in an application (no. 77180/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Sergey Aleksandrovich Leonov (“the applicant”), on 9 December 2011.
  2. The applicant was represented by Ms S. Krasovskaya (Kharchenko), a lawyer practising in the Moscow Region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
  3. The applicant alleged, in particular, that the refusal to make a residence order in his favour in respect of his son, and the interim measure as regards contact rights applied while the proceedings had been pending, had violated his right to respect for his family life and the principle of equality of spouses, and had, moreover, amounted to discrimination on grounds of sex.
  4. On 26 May 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

 

THE FACTS

 

I. The circumstances of the case

 

  1. The applicant was born in 1983 and lives in Moscow.
  2. On 21 August 2007 the applicant’s wife, Ch., gave birth to a son, A.
  3. The family lived at the applicant’s flat, where A. had his registered residence. He received ongoing paediatric care at the neighbourhood children’s clinic and attended a neighbourhood nursery school.
  4. In November 2009 Ch. decided to leave the applicant. She moved back to her parents’ residence and took A. with her. A. has been living with her ever since.
  5. On 9 March 2010 the applicant applied to the Justice of the Peace of the 339th Court Circuit of the Vostochnoe Dergunino District of Moscow for a residence order under which A. would live with him. He was instructed to make corrections to his claim, which he did on 8 April 2010. On the same day the case was transferred to the Timiryazevskiy District Court of Moscow. It registered the case on 26 April 2010 and scheduled the first hearing for 13 May 2010.
  6. On 26 April 2010 Ch. lodged a counterclaim, asking for a residence order under which A. would live with her, and for an interim measure pending the proceedings. She claimed, in particular, that there was a risk that the applicant might kidnap A. and take him to Belarus, where his stepfather had a house. She stated that he had already tried to take A. away from her and had in particular attempted to pick him up from the boy’s nursery school.
  7. On the same day, 26 April 2010, the Timiryazevskiy District Court allowed Ch.’s request for an interim measure and forbade the applicant from contacting A. or picking him up from the nursery school without Ch.’s prior permission. It held as follows:

“The subject matter of the case is the residence of a child [A.] born in 2007. The parents have been unable to come to an agreement on this matter. The child is now living with his mother [Ch.]. The court therefore considers that the requested interim measure would be proportionate to the claim. Otherwise, failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment.”

  1. The applicant learned of the interim measure on 30 April 2010. On that day he came to visit A. at the nursery school and the teachers refused to let him see the boy, citing the interim order.
  2. In April and May 2010 the Lyublino and Dergunino childcare authorities examined the applicant’s and Ch.’s flats and found their living conditions satisfactory and suitable for a small child.
  3. The first hearing was scheduled for 20 May 2010 but it was adjourned until 24 May 2010 at the applicant’s request. The next hearing was scheduled for 9 June 2010 but it was also adjourned until 23 June 2010 for the purposes of “obtaining evidence”.
  4. On 22 June 2010 the Lyublino childcare authority issued its report on the case. It considered that, by reason of his very young age, A. should reside with his mother. The childcare authority considered that it was particularly important for a child to be raised by the mother until the age of five or six. A lack of maternal care during that period, and in particular during the behavioural crises that a three-year-old typically undergoes, could result in the child developing negative character traits, such as stubbornness, surliness, hysterical reactions and inadequate social adaptation. The residence arrangements could be reconsidered after A. had reached the age of five or six years.
  5. On 29 June 2010 the Timiryazevskiy District Court ordered an expert psychological examination and adjourned the proceedings. The experts were asked their opinion on what residence arrangements would be in A.’s best interests.
  6. On 6 July 2010 the applicant lodged an appeal with the Moscow City Court against the decision of 29 June 2010 ordering an expert examination. The appeal hearing was scheduled for 29 July 2010 but was adjourned until 17 August 2010 because the parties did not appear. On 17 August 2010 the Moscow City Court upheld on appeal the decision of 29 June 2010. The case file was sent to the experts on 8 September 2010.
  7. Meanwhile, as Ch. had prevented him from seeing A., the applicant applied to the childcare authority for a contact order. On 15 July 2010 the childcare authority rejected the application, referring to the interim measure imposed by the Timiryazevskiy District Court.
  8. On 9 August 2010 the District Court received by post the applicant’s appeal, dated 6 May 2010, against the decision of 26 April 2010 ordering the interim measure. The applicant submitted that there had been no justification for the interim measure, which had been motivated solely by the prevailing belief that a child should be raised by the mother rather than the father. He further submitted that the interim measure was contrary to A.’s best interests. A lack of contact with his father and the paternal family – A.’s grandparents, uncle, aunt and cousins – to whom he was very attached might cause A. psychological trauma. It might, moreover, result in A.’s estrangement from his father or, given his very young age, even his forgetting his father altogether. It also created a risk that Ch. might turn A. against his father. It might in turn mean that the results of any future expert examinations – and, by extension, any future judicial decision on the child’s residence – would be biased against the applicant. Lastly, the applicant submitted that the interim measure breached his right to maintain contact with his son.
  9. On 17 September 2010 the Justice of the Peace of the 133th Court Circuit of the Mytichshinskiy District of the Moscow Region convicted Ch. of assault and battery, a criminal offence under Article 116 of the Criminal Code. In particular, the court found it established that on 20 June 2010 the applicant had approached Ch. and A. while they were playing at the local public beach and had hugged his son. Ch. had immediately snatched the boy away from him and had hit the applicant at least two times, causing him bodily injuries, before carrying the boy away. A fine was imposed on her.
  10. On 11 November 2010 the experts issued their report. They found that it would be beneficial for A. to maintain contact with both parents. He was equally attached to both of them. Both parents were equally capable of raising the child. The serious conflict currently persisting between the parents could negatively affect A.’s psychological development.
  11. On 12 November 2010 the proceedings were resumed. Hearings were scheduled for 24 November and 7 December 2010 but could not take place because some of the participants did not appear.
  12. On 23 December 2010 the Dergunino childcare authority issued its report on the case. It found that A. should reside with his mother, referring to A.’s young age and the fact that he had lived with his mother for some time already and was attending a neighbouring nursery school.
  13. During the hearing of 24 December 2010 the applicant lodged an objection against the judge of the Timiryazevskiy District Court, submitting that she (that is to say the judge) had stated on several occasions that she would rule against the applicant because according to the established practice of the Timiryazevskiy District Court a residence order was always made in favour of the mother. The judge dismissed the applicant’s objection.
  14. On 18 January 2011 the Timiryazevskiy District Court allowed a request lodged by the applicant for the proceedings to be stayed; it accordingly stayed the residence order proceedings pending the criminal proceedings against Ch.
  15. On 26 January 2011 the Mytishchi City Court upheld Ch.’s criminal conviction on appeal. The conviction acquired binding force.
  16. On 8 February 2011 the Moscow City Court quashed on appeal the decision of 26 April 2010 ordering the interim measure. It found that the interim measure had been unconnected to the subject matter of the case and had therefore been disproportionate. There had been no evidence that the execution of the forthcoming judgment might be complicated or impossible. By applying the interim measure, the judge had prejudged the case. The City Court remitted Ch.’s request for an interim measure for fresh examination by the Timiryazevskiy District Court, which rejected it on 1 April 2011 as unsubstantiated.
  17. Meanwhile, on 16 March 2011 the childcare authority instructed Ch. that she should stop preventing A. from seeing his paternal family.
  18. On 30 March 2011 the Timiryazevskiy District Court granted the divorce of the applicant and Ch.
  19. On 7 April 2011 the Moscow City Court, acting by way of supervisory review, quashed the judgment of 26 January 2011 upholding Ch.’s conviction and remitted the criminal case for fresh examination by the appellate court.
  20. On 12 April 2011 the Timiryazevskiy District Court resumed the residence order proceedings and held a hearing.
  21. During the hearings the applicant stated that he possessed a comfortable flat in a safe and ecologically clean neighbourhood, with parks and schools in the vicinity. Before the applicant’s separation from his former wife, A. had attended a nursery school in that neighbourhood. The applicant also had a countryside residence. Being the owner of his own business, he had flexible working hours and could therefore devote a lot of time to his son. He had always paid child maintenance and his income permitted him to give the child a good education. There was a strong personal attachment between the applicant and his son; A. was also very attached to his paternal family – especially his cousin, who was of the same age. The applicant had positive character references: he was calm, polite and affectionate towards his son. By contrast, Ch. was aggressive and irresponsible. She had physically assaulted him in front of A. and had been criminally convicted in connection with that incident. She had also been convicted of the administrative offence of leaving the scene of a road accident and had had her driving licence suspended for a year. As could be seen from the documents submitted by the applicant to the court, she lived in a severely polluted and criminally unsafe neighbourhood in the vicinity of an oil refinery plant and a prison. Moreover, Ch. shared her flat with her mother, who smoked and abused alcohol and could therefore have a bad influence on A. Until recently, Ch. had prevented the applicant and his relatives from seeing A., and currently she allowed occasional contact only.
  22. The applicant’s mother and sister stated that Ch. prevented them from seeing A. Ch. was often aggressive and occasionally abused alcohol. All her family smoked, even in the child’s presence. A. was very attached to his father and obviously suffered from their forced separation.
  23. Ch. stated that the applicant would have no time to take care of the child as he was managing a business, was following a distance-learning course at a university and had earlier stated his intention of building a countryside residence. Ch. had a higher education and was working. The alleged defects in her character and behaviour to which the applicant had referred had been confirmed by his relatives only.
  24. A teacher from A.’s current nursery school stated that she had seen the applicant once and that he had made a bad impression on her. On 30 April 2010 he had come to the nursery school and had told her that he wanted to take A. home with him. When she had refused to let him in, referring to the court order prohibiting any contact between them, he had become agitated and had talked about taking A. away with him when the children went out for a walk.
  25. The director of the nursery school gave a similar description of the incident. She said that the applicant had become angry when he had learned of the court decision ordering the interim measure, had asked for a copy of that measure and had called his lawyer.
  26. The following documents were submitted by the parties for the court’s examination: (i) the applicant’s and Ch.’s pay statements, (ii) documents showing that the district where Ch. lived was among the most polluted districts of Moscow, (iii) documents from the criminal case file against Ch., and (iv) documents relating to A.’s medical history and A.’s pre-school education both at the applicant’s place of residence prior to his parents’ separation and at the mother’s place of residence after the separation.
  27. On 12 April 2011 the Timiryazevskiy District Court granted Ch.’s application for a residence order in her favour and dismissed a similar application by the applicant. It held as follows:

“Having examined the entirety of the evidence, the court finds that there is a very serious conflict between the parties as regards the child’s residence arrangements, … which has a negative impact on the child by creating a psychologically unhealthy and tense atmosphere around him. At the same time, each parent, taken alone, possesses moral, personal and other qualities rendering each of them capable of raising a small child. According to the expert report, the child is equally attached to both of them. It also follows from the expert report that the parents’ improper behaviour towards each other may have negative psychological consequences for the child.

The court notes that [Ch.’s] criminal conviction for assaulting [the applicant] has not yet acquired binding force. It however takes into account the criminal charges brought against her. It is clear that the incident was prompted by the personal hostility [between the applicant and Ch.] caused by a disagreement on the issue of their son’s residence and education. In the court’s opinion, these charges cannot constitute a decisive reason for making a residence order in favour of the father. There is an accumulation of reasons on the basis of which the court considers that the child should live with the mother.

In the present case the court is guided by the best interests of child [A.], who at the moment of the judgment has not yet reached the age of four years old and who has an established way of life. For a long time the child has lived with his mother at her place of residence and has attended a nursery school there. Given his age, a change of residence and a separation from the mother will have a negative impact on the child’s general and psychological state.

The court considers that [the applicant’s] arguments that the district where [Ch.] lives is polluted and that close members of her family smoke cannot serve as a basis for making a residence order in favour of the father because, as mentioned above, a change of residence will have a negative impact on the child. [The applicant’s] arguments that he has better living conditions and a better financial situation than [Ch.] are not decisive for granting a residence order to the father either.

The childcare authorities are unanimous that it is in [A.’s] interests to live with the mother. The court agrees with that finding.

The court also finds that [the applicant’s] request for a residence order is at the moment premature. [The applicant] is entitled to apply for a reconsideration of the issue after A. has reached a more conscious age [по достижению сыном более сознательного возраста].”

  1. The applicant appealed, repeating the arguments he had raised before the District Court. He relied, in particular, on the right to equality between spouses.
  2. On 30 June 2011 the Moscow City Court upheld the judgment of 12 April 2011 on appeal, finding that it had been lawful, well-reasoned and justified.
  3. On 6 December 2011 the Lyublinskiy District Court of Moscow found it established that Ch. was preventing the applicant and his family -namely his mother, brother and sister – from seeing A. It held that A. was entitled to maintain contact with his father and his paternal family and determined the contact schedule as follows. The applicant should be able to have contact with A. (i) on the first and third weekend of each month from 10 a.m. on Saturday until 8 p.m. on Sunday at the applicant’s place of residence, in the mother’s absence and with the right to attend outdoor activities for children, and (ii) for two weeks during the summer and two weeks during the winter on dates agreed with the mother, provided that the child is in good health, with the right to leave Moscow and to go abroad. The applicant’s mother, brother and sister should be able to have contact sessions with A. from 11 a.m. until 1 p.m. on the first and third Saturdays of each month at the applicant’s place of residence.
  4. On an unspecified date the Moscow City Court upheld that judgment on appeal.
  5. On 2 February 2012 the Mytischy Town Court upheld Ch.’s conviction for assault and battery on appeal.

 

II. Relevant domestic law

 

  1. The Family Code provides that in the event of the parents’ separation, a child’s residence arrangements shall be determined by an agreement between them. If no such agreement can be reached, the child’s residence arrangements are determined by a court order, having regard to the child’s best interests and his/her opinion on the matter. In particular, the court must take into account the child’s attachment towards each of the parents and siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation) (Article 65).
  2. 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’s contact with the other parent, unless such contact undermines the child’s 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 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 by the 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’s residence to that parent, taking into account the child’s interests and the child’s opinion (Article 66, as in force at the material time).
  3. A child is entitled to maintain contact with his parents, grandparents, brothers, sisters and other relatives. The parents’ divorce or separation or the annulment of their marriage shall have no bearing on the child’s rights. In particular, in the event of the parents residing separately, the child is entitled to maintain contact with both of them (Article 55 § 1).
  4. A child is entitled to express 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).
  5. The 2002 Code of Civil Procedure (hereafter “the CCP”), as in force at the material time, provided that a judge might apply interim measures at the request of participants in the proceedings. Interim measures might be applied in a case where the failure to take such measures might complicate or make impossible the execution of the forthcoming judgment (Article 139).
  6. Possible interim measures might include a prohibition on undertaking specific actions (Article 140 § 1). Interim measures had to be proportionate to the claim in question (Article 140 § 3 of the CCP)
  7. A request for interim measures had to be examined on the day of its receipt by the court, without notifying the respondent or other participants to the proceedings (Article 141 of the CCrP).

 

THE LAW

 

I. Alleged violation of Article 8 of the Convention

 

  1. The applicant complained that the granting of a residence order in respect of his son in favour of the boy’s mother and the interim measure prohibiting him from contacting his son pending the residence order proceedings had violated his right to respect for his family life. He relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  1. There 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.”

 

A. Admissibility

 

  1. The Government submitted that the complaint about the interim measure fell outside the Court’s competence ratione materiae. They referred to the decision in the case of B.R. v. Poland ((dec.), no. 43316/98, 7 June 2001), in which the Court had found that interlocutory proceedings relating to an interim measure concerning the provisional regulation of the applicant’s contacts with his daughter pending the main divorce proceedings did not involve the determination of the applicant’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention.
  2. The Court reiterates that mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, among many others, S.I. v. Slovenia, no. 45082/05, § 68, 13 October 2011, and Gobec v. Slovenia, no. 7233/04, § 128, 3 October 2013, which both concerned interim decisions setting out provisional contact arrangements). It therefore considers that Article 8 was applicable to the interim order proceedings concerning contact between the applicant and his son. The respondent Government’s objection ratione materiae is accordingly dismissed.
  3. The Court further notes that it is not open to it to set aside the application of the six-month rule solely because a Government have not made a preliminary objection to that effect (see v. Croatia [GC], no. 59532/00, § 68, ECHR 2006-III). Therefore, the fact that the Government did not raise any alleged failure by the applicant to comply with the six-month rule does not prevent the Court from ruling on the issue (see v. Hungary [GC], no. 78117/13, § 90, ECHR 2017 (extracts). The Court will therefore examine whether the applicant’s complaint relating to the interim measure complied with the six-month rule even though the Government did not raise an objection as to non-compliance with the six-month rule.
  4. The Court notes that the interim measure was quashed on appeal on 8 February 2011 and that the interim measure proceedings were finally discontinued on 1 April 2011. The applicant lodged his application with the Court on 9 December 2011, that is to say more than six months later. The Court considers that, with regard to the interim measure, the applicant did not comply with the six-month time-limit. It follows that this complaint has been introduced out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.
  5. The Court furthermore notes that the complaint about the residence order is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

B. Merits

 

  1. Submissions by the parties

 

(a) The applicant

  1. The applicant submitted that the domestic courts had granted a residence order in favour of his ex-wife despite the fact, confirmed by the evidence examined at the hearing, that she had a lower income, lived in a polluted and criminally unsafe district and had bad character references. In particular, she had been convicted of a criminal offence for assaulting the applicant; the assault had happened in front of the child. She had, moreover, prevented the applicant from seeing his son for many months. Her mother, who lived together with her, smoked and abused alcohol, as confirmed by witnesses, who had been warned about criminal liability in the event of perjury. It was also significant that, as confirmed by the documents produced at the hearing, the applicant had flexible working hours and could therefore devote more time to A. than the boy’s mother, who had no flexibility in her working hours. By disregarding those factors, the domestic courts had taken a decision which had not been based on the best interests of the child. The applicant claimed that the sole reason for granting a residence order in favour of the mother had been the judge’s belief, evident from her statements at the hearings, that a small child should be raised by the mother rather than by the father.
  2. The applicant also argued that the possibility, which the domestic courts referred to, of reconsidering the residence arrangements after the child had reached “a more conscious age” was illusory. Given that the child’s continuing residence with the mother had been one of the main reasons invoked by the domestic courts for their decision to grant the residence order in favour of the mother, that reason would only get stronger with the passage of time.
  3. Lastly, the applicant submitted that the total length of the residence order proceedings had been excessive. The proceedings had lasted for one year and eight months. The applicant had in no way contributed to their length. By lodging motions and by appealing against some procedural decisions, he had exercised his procedural rights with the aim of effectively presenting his case and ensuring its fair and thorough examination. As regards his request for the proceedings to be suspended pending the criminal proceedings against A.’s mother, he considered that the outcome of the criminal proceedings had been relevant to the issue of A.’s residence.

(b) The Government

  1. The Government accepted that granting a residence order in favour of the mother in respect of the applicant’s son had constituted an interference with his right to respect for his family life. However, the interference had been lawful, had pursued a legitimate aim and had been necessary in a democratic society.
  2. As regards the length of the residence order proceedings, the Government submitted that the proceedings had lasted for about one year and two months. There had been no periods of inactivity attributable to the authorities. By contrast, the applicant had contributed to the length of the proceedings by lodging his claim with the wrong court, by lodging appeals against various procedural decisions and by requesting a suspension of the proceedings pending the criminal proceedings against his wife. In total, the length of the proceedings had been shorter than in the cases examined by the Court (they referred to v. Croatia, no. 27148/12, 2 April 2015, where the proceedings had lasted for seven years and eight months; Mihailova v. Bulgaria, 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; Ahrens v. Germany, no. 45071/09, 22 March 2012, where the proceedings had lasted for three years and seven months and where the Court had not found a violation of Article 8 either; and Diamante and Pelliccioni v. San Marino, no. 32250/08, 27 September 2011, where the proceedings had lasted for three years). Moreover, the present case was different from , where the applicant had seen his son for three times only during the proceedings, by the end of which he had reached the age of majority. In the applicant’s case the proceedings had ended when the child was three years and eight months old; it could not therefore be said that the passage of time had resulted in a de facto determination of the matter.
  3. Lastly, as regards the decision to grant the residence order in favour of the mother, the Government submitted that it had been lawful and had been based on the best interests of the child. As the parents had been unable to agree about the child’s residence arrangements, the domestic courts had had no choice but to grant the residence order in favour of one or other of them. The judge had ordered an expert psychological report and had also taken into account the opinion of the relevant childcare authorities. The judge had also examined the parents’ income, living conditions and working schedule. The applicant had not proved that his financial situation had been better than that of his ex-wife or that his working schedule had been indeed flexible. His arguments regarding his superior living conditions (because he lived in a less polluted district of Moscow than his ex-wife) were unconvincing as, in the Government’s opinion, all districts in Moscow were equally polluted. The applicant’s and his ex-wife’s flats were comparable in size and were both suitable for a small child. The applicant’s allegations regarding the dissolute behaviour of his ex-wife’s family had been confirmed only by the applicant’s mother and sister, who were witnesses with an interest in the proceedings. By contrast, the applicant’s unsatisfactory behaviour towards the teacher at A.’s nursery school had been confirmed by independent witnesses. The Government further submitted that in 2014 and 2015 the applicant had been fined for traffic offences several times. As regards his ex-wife’s criminal conviction, which had not been final at the time, the judge had considered that it could not constitute a decisive reason for granting a residence order in favour of the applicant. The judge’s decision not to wait until the conviction became final had been justified by the need to settle the child’s residence arrangements as quickly as possible. The applicant’s allegations that the judges had been biased against him were unfounded. The judge had found that each of the parents had been capable of taking care of the child and that the child had been equally attached to both of them. The main reasons for granting the residence order in favour of the mother had been the child’s extremely young age – three years – and the fact that he had already lived with his mother for some time and had an established way of life. A change in that way of life and a separation from the mother could be traumatic for him. The applicant’s procedural rights had been respected.
  4. The Government further submitted that the decision to grant the residence order in favour of the mother had not restricted the applicant’s parental authority or his right to participate in the child’s upbringing and education. As mentioned by the domestic courts, he was entitled to apply for a reconsideration of the residence arrangements after the child had reached a “more conscious age”; in particular, the child’s opinion had to be taken into account after the child had reached the age of ten years old. The applicant and his family had been granted contact rights by a judicial order. Russian law provided for a mechanism to deal with situations where a judicial contact order had not been complied with (see paragraph 45 above). There was, however, no evidence that the applicant’s wife had not complied with the judicial contact order. According to the statement that she had given in July 2015, her relationship with the applicant had improved and contact between A. and his father and his paternal family had been even more frequent than that ordered by the court. The domestic authorities had therefore taken all reasonable measures to ensure that he could maintain his relationship with his son.

 

  1. The Court’s assessment

 

(a) General principles

  1. In determining whether the refusal of custody or access was justified under Article 8 § 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’s 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, § 64, ECHR 2003-VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003-VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12, § 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. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk v. Russia, no. 47721/10, § 134, 1 August 2013).
  2. The 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, § 65, and Sommerfeld, cited above, § 63).
  3. Article 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’s health and development (see Sahin, cited above, § 66, and Sommerfeld, cited above, § 64).
  4. The Court cannot satisfactorily assess whether the reasons advanced by the domestic courts were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision-making process, seen as a whole, was fair (see Sahin, cited above, § 68, and Sommerfeld, cited above, § 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, § 100, with further references).
  5. Lastly, 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’s 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, § 65, Series A no. 121; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003; and Z.J. v. Lithuania, cited above, § 100).

(b) Application to the present case

  1. The Court considers that the decision to make a residence order in favour of the mother amounted to an interference with the applicant’s right to respect for his family life (see Antonyuk v. Russia, no. 47721/10, § 119, 1 August 2013; see also G.B. v. Lithuania, no. 36137/13, § 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 A. and Ch. It remains to be examined whether the interference was “necessary in a democratic society”.
  2. Before 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 A. would live; it did not affect A.’s legal relationship with the applicant, and nor did it take away the applicant’s parental authority. It is also significant that the applicant was subsequently granted contact rights.
  3. The Court accepts that in reaching decisions on child-care 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, § 121).
  4. Having examined the domestic courts’ decisions at issue (see paragraphs 38 and 40 above), the Court finds nothing to doubt that they were based on the best interests of the child. The domestic courts found that A. had not yet reached four years of age and had lived with his mother at her place of residence for a long time and attended a nursery school there. They considered that, given his young age, a change of residence and a separation from the mother would have a negative impact on his psychological state. There is nothing to indicate that the findings reached by the domestic courts, which had the benefit of direct contact with all the persons concerned, were unreasonable and thus fell outside their wide margin of appreciation. Given that the national authorities are in principle better placed than an international judge to evaluate the evidence before them, it is not the Court’s task to take their place in establishing and assessing the facts and deciding what is in the best interests of the child in the present case.
  5. The Court is not convinced by the applicant’s argument that the residence order was based on the judge’s belief that a small child was to be always raised by the mother. It notes that the residence order was based on an assessment of the particular circumstances of the case.
  6. The Court further notes that the decision at issue was reached following adversarial proceedings in which the applicant was placed in a position enabling him to put forward all arguments in support of his application for a residence order in his favour and he also had access to all relevant information that was relied on by the courts.
  7. As regards the applicant’s complaint about the allegedly excessive length of proceedings, the Court considers the applicant’s own procedural activity influenced the overall duration of proceedings (see, for similar reasoning, Gobec, cited above, § 144). He lodged an appeal against the decision ordering an expert examination, thereby delaying its commencement. He also asked for the proceedings to be stayed pending the criminal proceedings against his ex-wife. It is true that there were also several delays in the proceedings attributable to the authorities (in particular, an unexplained three-month delay in obtaining an expert opinion after the decision ordering it had been upheld on appeal and a three-month delay in resuming the proceedings after Ch.’s criminal conviction entered into force). However, the Court considers that overall the domestic courts appear to have dealt with the proceedings, which lasted slightly less than one year and four months at two levels of jurisdiction, with the requisite diligence.
  8. The Court concludes from the above that the decision-making process was fair in so far as it allowed the applicant to present his case fully and that the reasons advanced by the domestic courts were relevant and sufficient. Accordingly, by making a residence order in favour of the mother, the domestic courts did not overstep their wide margin of appreciation.
  9. There has been therefore no violation of Article 8 of the Convention.

 

II. Alleged violation of Article 14 of the Convention, taken in conjunction with Article 8

 

  1. The applicant further complained that the decision to grant a residence order in respect of his son in favour of the boy’s mother amounted to discrimination on grounds of sex. He relied on Article 14 of the Convention, taken in conjunction with Article 8. Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

 

A. Admissibility

 

  1. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case-law (see, among many other authorities, E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008).
  2. It has not been disputed between the parties that the case falls within the ambit of Article 8 of the Convention. Indeed, the Court has found that the contested decisions amounted to an interference with the applicant’s right to respect for his family life (see paragraph 69 above). It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case
  3. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits

 

  1. Submissions by the parties

 

  1. The applicant submitted that the issuance of a residence order in respect of his son in favour of the boy’s mother – despite the fact that she had a criminal record, bad living conditions and a dissolute close family – had shown the inequality between men and women in the sphere of childcare which prevailed in Russia. He claimed that there existed an assumption in favour of mothers which was very difficult to rebut, as had been evident from the judge’s statements at the hearings (see paragraph 24 above).
  2. The Government submitted that both parents had equal rights under Russian law; the mother had not been entitled to any preferential treatment. In particular, both parents had had the right to apply for a residence order and the courts had had to decide the issue on the basis of the best interests of the child. There were many examples in domestic practice of a residence order being granted in favour of the father (they referred, in particular, to the case of Gruzdeva v. Russia (dec.), no. 13553/09, § 71, 8 July 2014). In the present case the domestic courts had examined all the circumstances of the case and decided that it was in the best interest of the child to live with the mother. They had found that, given the child’s young age and the fact that he had lived with his mother for some time, a separation from the mother would have a negative impact on his psychological state.

 

  1. The Court’s assessment

 

  1. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, and Konstantin Markin v. Russia [GC], no. 30078/06, §§ 125 and 126, ECHR 2012 (extracts)).
  2. Very weighty reasons need to be put forward before a difference in treatment on the ground of sex can be regarded as compatible with the Convention (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263; Zaunegger v. Germany, no. 22028/04, § 51, 3 December 2009; and Buchs v. Switzerland, no. 9929/12, § 67, 27 May 2014).

86.

In the case at hand, the applicant complained that he had been discriminated against on account of his sex, in breach of Articles 8 and 14 of the Convention, in that the residence order in respect of his child had been made in favour of the child’s mother.

  1. The Court observes at the outset that Russian law does not make any distinction between the sexes, both men and women being equally eligible to obtain a residence order in respect of their child, irrespective of the child’s age. The domestic courts must evaluate all the relevant circumstances and the parties’ parenting abilities in order to find the most appropriate solution in the child’s best interests (see paragraph 44 above). The applicant, however, argued that the decisions in his case had been based on a general assumption prevailing in Russia that it was in the interest of children under a certain age to reside with the mother rather than the father (see paragraphs 24 and 82 above).
  2. The Court notes that the residence order was based on an assessment of the best interests of the child in the particular circumstances of the case, rather than on a general assumption in favour of mothers. In particular, the domestic courts found that the child had lived with his mother at her place of residence for a long time. They considered that, given his young age and the length of his residence with the mother, a change to his established way of life would have a negative impact on his psychological state.
  3. The Court is therefore satisfied that, as regards the examination of the application for a residence order, no difference of treatment on account of sex existed either in the law or in the decisions applying it in the applicant’s case.
  4. There has accordingly been no violation of Article 14 of the Convention, taken together with Article 8.

 

III. Alleged violation of Article 5 of Protocol No. 7

 

  1. The applicant further complained that the decision to grant a residence order in respect of his son in favour of the boy’s mother had violated his right to equality between spouses. He relied on Article 5 of Protocol No. 7, which reads as follows:

“Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children.”

  1. The Government submitted that the applicant had not exhausted domestic remedies regarding his claim under Article 5 of Protocol No. 7 because he had not invoked that Article before the domestic courts.
  2. The Court observes that the applicant relied on the right to equality between spouses in his appeal submissions (see paragraph 39 above). Accordingly, the Court rejects the Government’s objection as to the non-exhaustion of domestic remedies.
  3. The Court reiterates that it has previously decided that Article 5 of Protocol No. 7 essentially imposes a positive obligation on States to provide a satisfactory legal framework under which spouses have equal rights and obligations concerning such matters as their relations with their children. It is not concerned with the way in which the national courts applied it (see Iosub Caras v. Romania, no. 7198/04, §§ 56 and 57, 27 July 2006, with further references).
  4. In the present case, the applicant does not question the legislative framework. His criticism only concerns the way in which the national courts applied it. The Court finds no indication that the law in question violates the equality clause provided in Article 5 of Protocol No. 7 (see paragraph 87 above).
  5. It follows that this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.

 

FOR THESE REASONS, THE COURT

 

  1. Declares, by a majority, the complaints that the decision to grant the residence order in respect of the applicant’s son in favour of the boy’s mother had violated his right to respect for his family life and had, moreover, amounted to discrimination on grounds of sex admissible and the remainder of the application inadmissible;
  2. Holds, by six votes to one, that there has been no violation of Article 8 of the Convention;
  3. Holds, by six votes to one, that there has been no violation of Article 14 of the Convention taken in conjunction with Article 8.

 

Done in English, and notified in writing on 10 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

President

Deputy Registrar

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Serghides is annexed to this judgment.

H.J.

F.A.

DISSENTING OPINION OF JUDGE SERGHIDES

 

  1. This case concerns a child-residence dispute. The applicant complains about the making of a residence order in respect of his son (A.) in favour of the boy’s mother (Ch.). He also complains about the interim order prohibiting him from contacting his son pending the residence proceedings. He relies on Article 8 of the Convention, Article 14 of the Convention in conjunction with Article 8, and Article 5 of Protocol No. 7 to the Convention. To my regret, the complaint regarding the interim order under Article 8 and the complaint under Article 5 of Protocol No. 7 were dismissed by the Court (by a majority) as manifestly ill-founded, and thus inadmissible, leaving no room for an examination on their merits.
  2. I agree with the majority that the decision to make a resident order in favour of the mother amounted to an interference with the applicant’s right to respect for his family life (see paragraph 69 of the judgment).
  3. Where I respectfully disagree with them, however, is that, under the circumstances of the case, there has been no violation of Article 8 and of Article 14 read in conjunction with Article 8.

 

I. Complaint under Article 8 of the Convention

 

  1. It is important to note that the scope of the residence order in favour of the mother (Ch.) was limited to determining where A. would live; it did not affect A.’s legal relationship with the applicant, nor did it take away the applicant’s parental authority. It is also significant that the applicant was subsequently granted contact rights.
  2. According to the Court’s case-law, in reaching decisions on child-care measures, national authorities and courts are often faced with a task that is extremely difficult. Equally, the Court does not lose sight of the fact that the national authorities had no other choice but to grant a residence order in favour of one of the two separated parents, as the domestic law does not provide for the possibility of granting a shared residence order (see Antonyuk v. Russia, no. 47721/10, § 121, 1 August 2013).
  3. It is not the Court’s 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’s 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. 13553/09, § 71, 8 July 2014). In particular, the Court has competence to ascertain whether the domestic courts, when taking such a decision, conducted an in-depth 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 the General Principles section of the judgment). A failure to make a sufficiently thorough examination will amount to a violation of Article 8 (see Antonyuk, cited above, § 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’s case-law, the Court would require very strong reasons to substitute its own assessment for that of the domestic courts.
  4. In line with the principles and case-law outlined above, I 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. The domestic authorities, while noting that both parents possessed moral, personal and other qualities rendering them capable of raising a small child and that the child was equally attached to both of them (see paragraphs 21 and 38 of the judgment), gave two reasons for their decision to grant a residence order in favour of the mother. They considered, firstly, that by reason of his very young age, A. should live with his mother. Secondly, they referred to the fact that A. had lived with his mother for some time and that a change to his established way of life would have a negative impact on his psychological state. I will examine the two reasons in turn.
  5. As regards the first argument that a child below a certain age should live with the mother, this was most fully set out in the childcare authority’s report of 22 June 2010 (see paragraph 15 of the judgment). The report stated that it was particularly important for a child to be raised by the mother until the age of five or six and that a lack of maternal care during that period could result in the child developing “stubbornness, surliness, hysterical reactions and inadequate social adaptation”. It is significant that the report was formulated on the basis of general assumptions, without any reference to the particular circumstances of the case and without any consideration of the situation of the family in question or the needs of A., the child in question. Although they based their decision on that report to a significant degree, the domestic courts failed to assess it and merely endorsed its findings. They made no meaningful attempts to verify whether the report had been prepared after a thorough examination of the entire family situation and of all relevant factors.
  6. Nor did the domestic courts themselves (see paragraphs 38 and 40 of the judgment), while advancing A.’s young age as the main reason for the decision to grant the residence order to the mother, refer to any circumstances of a factual, emotional, psychological, material or medical nature specifically concerning A. and confirming his stronger attachment to the mother or her better parental abilities. They limited their examination of this issue to stating that the applicant’s request for a residence order was premature because the child had not reached “a conscious age”. It is also revealing that even before beginning its examination of the case, in its decision on the interim measure, the district court forbade the applicant from contacting his son, finding that such contact “might complicate or make impossible the execution of the forthcoming judgment” (see paragraph 11 of the judgment). I cannot but conclude that the domestic courts simply assumed from the very outset that women were able to take better care of small children and that it was therefore always in the interests of small children to reside with the mother rather than the father. Such an assumption fails to take into account the variety of family situations and their relevance for the assessment of the best interest of the child, and moreover indicates differing treatment on the basis of sex. Article 8 cannot, however, be interpreted as granting a preferential right to obtain child custody to one or other of the parents (see v. the Czech Republic (dec.), no. 43252/98, 19 October 1999), irrespective of the child’s age.
  7. I will now turn to the second reason advanced by the childcare authorities and the courts – namely that a change of residence could have a negative impact on A.’s psychological state because he had lived with his mother at her place of residence for some time and attended a nearby nursery school (see paragraphs 23 and 38 of the judgment). It is to be noted that the domestic authorities did not rely on any psychological or other expert evidence in support of their finding that a change of residence would be traumatic for A. It is significant that the experts found that after living with the mother, and separately from the father, for some time A. was still equally attached to both parents (see paragraph 21 of the judgment). Nor did the domestic authorities refer to any evidence showing that A. was more socially integrated at the mother’s place of residence (where he had recently moved after his parents’ separation) than at the father’s place of residence (where he had lived and attended a nursery school during the first years of his life). It therefore appears that the domestic authorities judged that there was a risk of psychological trauma solely on the basis of the mere passage of time spent with the mother after the separation and while the residence order proceedings were pending. As the Court has held on many occasions, effective respect for family life requires that future relations between parent and child should not be determined by the mere passage of time (see the case-law cited in the General Principles section of the judgment). However this is what happened in the present case (compare Jucius and v. Lithuania, no. 14414/03, § 32, 25 November 2008).
  8. As the Court has also held in many cases concerning a person’s relationship with his or her child, the procedural requirements implicit in Article 8 establish a duty to exercise exceptional diligence in view of the risk that the passage of time owing to a procedural delay may result in the de facto determination of the matter (see, inter alia, W. v. the United Kingdom, 8 July 1987, § 65, Series A no. 121; Hoppe v. Germany, no. 28422/95, § 54, 5 December 2002; v. Germany, no. 40324/98, § 100, 10 November 2005; and Gobec v. Slovenia, no. 7233/04, § 142, 3 October 2013).
  9. In my view, the present case should have been treated with particular urgency, given the ongoing lack of contact between the applicant and his son. Indeed, in the previous cases examined by the Court the lack of contact weighed heavily in favour of the finding that a procedural delay – even a relatively short one – amounted to a violation of the exceptional diligence requirement of Article 8 (see, for example, W. v. the United Kingdom, cited above, § 69, where the delay was about four months; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003, where the delay was slightly more than five months; Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 139, 1 December 2009; K. v. Slovenia, no. 41293/05, § 117, 7 July 2011; S.I. v. Slovenia, no. 45082/05, § 72, 13 October 2011; v. Croatia, no. 27148/12, §§ 99 and 100, 2 April 2015; and, by contrast, , cited above, §§ 101-03; Diamante and Pelliccioni v. San Marino, no. 32250/08, § 189, 27 September 2011; and Gobec, cited above, § 144, all three of which concerned situations where regular contact was maintained).
  10. I do not consider that complexity alone could explain the length of the proceedings in the present case, in which only ten hearings were scheduled. There were several delays for which the Government have not submitted any satisfactory explanation. Thus, it took the domestic authorities almost three months to obtain an expert opinion (compare Sylvester, cited above, § 69). The proceedings were also stayed for three months at the applicant’s request pending criminal proceedings against his ex-wife. It is to be noted that the fact that the civil court was awaiting the criminal court’s judgment before deciding on the residence order did not release the domestic authorities, including the criminal court, from their obligation to examine the case promptly (see K., cited above, § 117). It should be noted, in particular, that the criminal conviction entered into force eight days after the proceedings had been stayed. The Government did not explain why it took the district court almost three months to resume the proceedings. I find it noteworthy that the proceedings were ultimately resumed five days after the conviction had been quashed on supervisory review and the criminal proceedings had become pending again.
  11. Given that the risk of psychological trauma in the event of a change of residence was assumed by the domestic authorities in the light of the mere passage of time, and taking into account the fact that the domestic authorities bore at least partial responsibility for that situation through the procedural delays attributable to them, the fact that A. had lived with his mother while the residence order proceedings were pending, although relevant, cannot in itself be regarded as sufficient grounds for deciding in favour of the mother, in the absence of other valid reasons.
  12. No other reasons were advanced by the domestic authorities. The applicant submitted a number of documents to the courts concerning his ex-wife’s criminal conviction and his and his ex-wife’s respective incomes, living conditions, working schedules and character references. The domestic courts found that the mother’s criminal conviction was not decisive and dismissed all the other factors as irrelevant (see paragraph 38 of the judgment).
  13. As regards Ch.’s criminal conviction, the domestic courts merely stated that the incident had been prompted by the personal hostility between the applicant and Ch., caused by a disagreement on the issue of their son’s residence and education. They therefore considered that Ch.’s criminal conviction, not final at the relevant time, was not a sufficient reason for making a residence order in favour of the applicant (see paragraph 38 of the judgment). It is not the Court’s task to give a final ruling on the matter. However, one must note that Ch. was convicted of a violent criminal offence. It was established that she had physically assaulted the applicant in front of their child and, in particular, that she had snatched the child by force from the applicant before starting to hit the applicant (see paragraph 20 of the judgment). It is also significant that this incident was one of the manifestations of Ch.’s persistent refusal to allow any contact between the applicant and his son. Given the seriousness of the situation and the fact that it was directly relevant to the best interests of the child, the Court considers that it required a more thorough analysis and examination than can be found in the decisions of the domestic courts (see, for similar reasoning, M.S. v. Ukraine, no. 2091/13, §§ 81 and 82, 11 July 2017).
  14. Turning to the other factors mentioned by the applicant, it is to be noted that the Government disputed the applicant’s assertions regarding his superior personal qualities, income, living conditions and working schedule. It is not the Court’s task to take the place of the national authorities and to establish the disputed facts. I observe, however, that the applicant submitted a number of documents to the domestic courts in support of his arguments. Nevertheless, the domestic courts rejected them in summary fashion without making any meaningful attempt to analyse the applicant’s and Ch.’s respective incomes, living conditions or working schedules in the light of the adduced evidence, finding that those factors were irrelevant for their assessment. It is my humble view that these factors might have been relevant for determining the best interests of the child (see Antonyuk, cited above, § 134, and, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010). Accordingly, the domestic courts failed to safeguard the Convention right in question adequately, by omitting to duly consider factors that were relevant under the Convention (see, by contrast, Gruzdeva v. Russia (dec.), no. 13553/09, §§ 72-77, 8 July 2014, and Malinin v. Russia, no. 70135/14, § 71, 12 December 2017, where the domestic courts had carefully assessed those and other factors in their decisions).
  15. I conclude from the above that the domestic courts did not conduct an in-depth examination of the entire family situation and of all relevant factors and that their decisions were based to a significant degree on a general assumption in favour of mothers, and also on the mere passage of time while the residence-order proceedings were pending, flawed as they were with delays. It follows that the decision-making process was deficient and did not therefore allow the best interests of the child to be established. I accordingly propose that the domestic authorities did not adduce relevant and sufficient reasons for their decision to grant a residence order in favour of the child’s mother.
  16. Lastly, as regards the Government’s argument that the applicant was entitled to apply for a reconsideration of the residence arrangements after the child had reached “a more conscious age”, my view is that decisions taken on matters of child custody or residence may well prove to be irreversible. Thus, where a residence order has been made in favour of one of the parents, the child in question may in the course of time establish a routine involving that parent and have his personal bond with the other parent weakened. It might not be in his interests to disturb his established way of life by reversing a previous residence order. It follows that this is a domain in which there is an even greater call than usual for protection against arbitrary interferences (see, mutatis mutandis, W. v. the United Kingdom, cited above, § 62). I am not therefore convinced that a highly uncertain possibility of a future change in residence arrangements could absolve the domestic authorities from complying with their Convention obligation to conduct an in-depth examination of the situation before deciding on a child’s residence arrangements.
  17. In view of the above, and notwithstanding the domestic authorities’ margin of appreciation, I find that the interference was not proportionate to the legitimate aim pursued.
  18. Consequently, I find that there has been a violation of Article 8 of the Convention on account of the making of a residence order in respect of the applicant’s son in favour of the boy’s mother, for the reasons explained above.

 

II. Complaint under Article 14 of the Convention, taken in conjunction with Article 8

 

  1. The applicant also complained that the decision to grant a residence order in respect of his son in favour of the boy’s mother amounted to discrimination on grounds of sex. His complaint is based on Article 14 of the Convention, taken in conjunction with Article 8.
  2. The issue here is whether the enjoyment of the applicant’s right to respect for his family life as set forth in Article 8 of the Convention was secured without discrimination on a ground of sex, contrary to Article 14 of the Convention. In assisting the Court in interpreting and applying the provisions of these Articles, the principle of effectiveness, which is inherent in the Convention, should be employed as a tool. According to this principle, the interpretation and application of the Convention provisions should be made in a practical and effective manner, based on their texts and according to their scopes and purposes. Bearing this principle in mind, as I also did when examining the complaint under Article 8, I will now examine the complaint under Article 14 taken in conjunction with the former Article.
  3. It is the Court’s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). I must therefore first examine whether the applicant suffered a difference in treatment.
  4. In the instant case it is to be noted that the domestic childcare authorities, and then the courts, based their decision to make a residence order in favour of the child’s mother on two main grounds.
  5. Firstly, with regard to the domestic authorities’ finding that, by reason of his very young age, A. should live with his mother, it should be observed that the difference in treatment complained of does not arise from the wording of the domestic provisions. Russian law does not make any distinction between the sexes, both men and women being equally eligible to obtain a residence order in respect of their child, irrespective of the child’s age. The difference in treatment at issue was allegedly based on what was described by the applicant as a well-established practice, according to which a residence order in respect of a small child was almost always made in favour of the mother. As the Court has already found, difference in treatment potentially contrary to the Convention does not have to be based on the domestic legal provisions; it may result from a de facto situation, such as established practice (see E.B. v. France [GC], cited above, § 74, and Zarb Adami v. Malta, no. 17209/02, §§ 75-76, ECHR 2006-VIII).
  6. It should be observed that the Government, on whom the burden of proof lay, did not produce statistical information on the frequency of the reliance on a child’s young age as the decisive reason for making a residence order in favour of the mother; this alone could have provided an accurate picture of administrative and judicial practice and established the absence of a difference in treatment between mothers and fathers as regards very young children (compare E.B. v. France [GC], cited above, § 74).
  7. It is also significant that the domestic authorities in the present case clearly based their decision on a general assumption that it was in the interests of small children to reside with the mother rather than the father, without any reference to the particular circumstances of the case in question and without any consideration of the particular family situation (for a detailed analysis of this ground, see §§ 8-9 of this opinion). The crucial point is that it was prima facie considered to be in the interest of any small child to live with the mother (compare Zaunegger v. Germany, no. 22028/04, § 46, 3 December 2009).
  8. As regards the second ground – that the child had lived with his mother for some time and that a change to his established way of life would have a negative impact on his psychological state – this had nothing to do with any consideration relating to the applicant’s sex. It referred to a de facto situation and its anticipated consequences for the best interests of the child (for a detailed examination of this ground, see §§ 10-14 of this opinion).
  9. Nonetheless, these two main grounds form part of an overall assessment of the child’s situation. For this reason, I propose that they should not be considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds has the effect of contaminating the entire decision (see E.B. v. France [GC], cited above, § 80).
  10. It is to be noted that the childcare authorities’ report of 22 June 2010 relied on one ground only – the child’s young age – in respect of its recommendation that the child should live with the mother. That ground alone was therefore considered to be sufficient for the mother to be preferred to the father. It was not until 23 December 2010 that the second ground was relied on for the first time by the childcare authorities, in addition to the child’s age. In my view, the manner in which the childcare reports, and in particular the report of 22 June 2010, were phrased was revealing in that the child’s age was a determining factor.
  11. The domestic courts in turn relied on both grounds, without it being possible to conclude, on the basis of the texts of the judicial decisions, that one of them was predominant or that one of them alone would have been sufficient for them to decide in favour of the mother. It is, however, clear that the child’s young age was at the centre of the deliberations of the domestic courts, which reached their decisions in the light of the recommendations made by the childcare authorities. That ground was therefore omnipresent at every stage of the proceedings (compare E.B. v. France [GC], cited above, §§ 82-88).
  12. It should be stressed that the reference to the applicant’s sex was, if not explicit, at least implicit. By relying on the child’s young age as one of the reasons for making a residence order in favour of the mother, the domestic courts assumed that women were able to take better care of small children than men. The influence of the applicant’s sex on the assessment of his application for a residence order has therefore been established and, having regard to the foregoing, was a significant factor leading to the decision to grant the residence order in favour of the mother.
  13. The Court has already found that, while differences may exist between a mother and father in their relationship with their child, as far as the role of taking care of the child during the period corresponding to parental leave – that is, on expiry of the period of maternity leave, which is intended to enable the woman to recover from childbirth and to breastfeed her baby if she so wishes – is concerned, men and women are “similarly placed” (see Konstantin Markin v. Russia, no. 30078/06, § 132, 7 October 2010). This is a fortiori true for the period after the end of the parental leave, as in the present case.
  14. The applicant (the father) therefore suffered a difference in treatment on account of his sex, as compared to a person in a relevantly similar situation (the mother).
  15. Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008, and Konstantin Markin, cited above, §§ 125 and 126).
  16. The Government did not provide any justification for a difference in treatment in the present case.
  17. The Court has repeatedly held that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention (see, among many other cases, Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263; Zaunegger, cited above, § 51; and Buchs v. Switzerland, no. 9929/12, § 67, 27 May 2014). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. States may not impose traditional gender roles and gender stereotypes. In particular, it is significant that contemporary European societies have moved towards a more equal sharing between men and women of responsibility for the upbringing of their children and that men’s caring role has gained recognition. Gender stereotypes, such as the perception of women as primary child-carers and men as primary breadwinners, cannot therefore, by themselves, be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, origin, colour or sexual orientation (see Konstantin Markin, cited above, §§ 127 and 140-43).
  18. In view of the foregoing, I consider that the decision to make a residence order in favour of the mother on the grounds of the child’s young age cannot be said to be reasonably or objectively justified. Finally, I conclude that this difference in treatment, of which the applicant was a victim, amounted to discrimination on grounds of sex.
  19. Consequently, I find that there has been a violation of Article 14 taken in conjunction with Article 8.

 

III. General conclusion

 

41. I conclude that there has been a violation of Article 8 and Article 14 taken in conjunction with Article 8 of the Convention. This conclusion would have led me to award the applicant an amount in respect of non-pecuniary damage for the violation of the above provisions, as well as an amount for costs and expenses; nevertheless, as I am in the minority, the estimation of such amounts would be purely theoretical, and so I will refrain from speculating on them.

No votes yet.
Please wait...

Просмотров: 305

Добавить комментарий

Ваш e-mail не будет опубликован.

*

code