CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 juillet 2015

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UKRAINE   (Application no. 10383/09)                   JUDGMENT     STRASBOURG   16 July 2015     FINAL   16/10/2015   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Mamchur v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Boštjan M. Zupančič,   Ganna Yudkivska,   Vincent A. De Gaetano,   André Potocki,   Helena Jäderblom,   Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 23 June 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 10383/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Aleksandr Yegorovich Mamchur (“the applicant”), on 7 February 2009. 2.     The applicant was represented by Mr A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostyanova, of the Ministry of Justice. 3.     The applicant complained of interference with his parental rights, in particular the rights of custody and direct contact with his child and the right to bring up the child. He further complained under Article 14 of the Convention that he had suffered discrimination in the exercise of his right to respect for his family life due to his having a disability. The applicant also alleged, relying principally on Article 6 § 1 of the Convention, that the court proceedings in his case had been unfair. 4.     On 4 March 2013 the application was communicated to the Government. It was given priority pursuant to Rule 41 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1954 and lives in Chernigiv. Since childhood the applicant has suffered from the second-highest officially recognised degree of disability. In particular, the applicant’s walking ability is impaired – he can only walk with the aid of crutches. Since August 1977 the applicant has worked as a senior researcher at the Chernigiv Institute of Agricultural Microbiology. A.     The applicant’s family situation and the events leading to the child custody and care dispute 6.     The applicant was married to O.M., with whom he had a daughter – A.M. – who was born on 5 May 2002. They lived together as a family in the applicant’s flat in Chernigiv. Y.L. – another daughter of O.M.’s – who was born on 30 April 1994, and M.M., the applicant’s mother, also lived in the same flat. 7.     In October 2005 O.M. moved to live at her mother’s flat in Chernigiv, as O.M. was suffering from cancer and required external assistance, taking with her A.M., who was then three years old. 8.     On 3 April 2006 a lawyer acting on behalf of O.M. lodged a claim with the Desnyanskyy District Court in Chernigiv against the applicant, seeking maintenance payments. In particular, in the claim it was stated that O.M. and the applicant “had not lived as a married couple” since August   2005, that the applicant “had left the family”, that he was not participating in the upbringing of A.M. and was not contributing to it financially. 9.     The applicant submitted his observations on the claim, in which he stated that it had been O.M. who “had left the family” to live at her mother’s flat and that O.M. had taken A.M. with her. The applicant asserted that he was contributing money towards his daughter’s upbringing and that whenever his daughter had been unwell she had stayed at his home in order to protect O.M. against possible infection, most recently from 31 March to 5 April 2006. The applicant further contended that O.M. was in a poor state of health and taking opioids constantly, and that the claim had been instigated by her relatives, in particular by V.K., O.M.’s mother. The applicant asked the court to order A.M. to return to live at his flat as long as O.M. remained in a poor medical condition. 10.     On 16 May 2006 the Desnyanskyy District Court allowed O.M.’s claim, finding that she and A.M. were living separately from the applicant and that he was not contributing money towards the child’s upbringing. The applicant did not appeal against that judgment, stating that he had only learnt of it after some delay. 11.     On 16 June 2006 O.M. died. V.K. took A.M. away from Chernigiv without informing the applicant of the latter’s whereabouts. 12.     The applicant stated that he had lodged a number of complaints and requests with the police, prosecutors, local child-care authorities and non-governmental organisations seeking assistance in his daughter’s return. In particular, he submitted a copy of his complaint of 19 September 2006 addressed to the police and to the Municipal Centre of Social Services for Family, Children and Youth ( Міський центр соціальних служб для сім’ї, дітей та молоді , “the Municipal Family Welfare Centre”) in Chernigiv. 13.     In a letter dated 16 October 2006, the Municipal Family Welfare Centre informed the applicant that his request of 19 September 2006 for his daughter’s return had been examined. The applicant was also informed by V.K.’s neighbours that she had left Chernigiv for Andriyivka, a village in the Chernigiv oblast (about 25 km away from Chernigiv), and had taken A.M. with her. The local authorities in Andriyivka were thus asked to assist the applicant in his request for the return of his daughter. The Chernigiv Municipal Family Welfare Centre also informed the applicant that he should raise the issue of establishing his daughter’s place of residence before the courts. 14.     In October 2006 the police informed the applicant that there were no grounds for opening a criminal case on the basis of his complaint and that he should pursue it directly before the courts in the framework of a private action. 15.     On 11 December 2006 V.K. lodged a request with the Desnyanskyy District Council in Chernigiv asking that she be appointed as A.M.’s tutor, stating that A.M. had been living with her since O.M.’s death, that the applicant suffered from the second-highest officially recognised degree of disability, and that she was not receiving any help from him. 16.     The applicant was not informed about V.K.’s request. 17.     On 22 December 2006, in response to V.K.’s request, the Desnyanskyy District Council adopted a decision appointing her as tutor of A.M. on the grounds that “the child’s mother had died [and] her father, who suffered from the second [highest officially recognised] degree of disability, could not take care of [the child’s] upbringing because of his state of health” (“the tutelage decision”). The decision noted that A.M. was living with V.K. at the latter’s place of residence. 18.     By a letter dated 24 February 2007, the Desnyanskyy District Council informed the applicant about the tutelage decision. 19.     On 31 December 2006 A.M. broke her hip after falling from a cupboard in V.K.’s flat. According to the applicant, this had happened because V.K. had left his daughter without supervision for a long period of time. B.     First set of court proceedings 20.     In February 2007 the applicant lodged a claim with the Desnyanskyy District Court seeking his daughter’s return. On 8 May 2007 the claim was left undecided as the applicant had failed to appear before the court. According to the applicant, it was his lawyer who had failed to attend the court hearing. 21.     In September 2007 the applicant lodged a new claim with the Desnyanskyy District Court seeking his daughter’s immediate return pursuant to Article 162 of the Family Code. The applicant argued that after his wife’s death, V.K. had retained his daughter unlawfully and without his consent. He also stated that V.K. had hindered his contact with A.M. The applicant invoked Articles 151, 153, 154 and 163 of the Family Code and Article 23 of the Civil Code. 22.     V.K. disputed the applicant’s claim, arguing that she was A.M.’s tutor and that her granddaughter was therefore living lawfully at her home. V.K. stated that in October 2005 O.M. and A.M. had come to live in her flat as O.M. had required assistance for health reasons. After the latter’s death, A.M. had remained with V.K. 23.     V.K. also lodged a counterclaim seeking compensation for non-pecuniary damage in respect of allegedly false information the applicant had submitted to the courts. In her counterclaim, V.K. stated that after the death of O.M. the applicant had, “periodically”, made phone calls asking her to return A.M. to him. V.K. alleged that he had verbally abused her, but provided no further details. 24.     The representatives of the tutelage service ( орган опіки та піклування ) within the Desnyanskyy District Council submitted that the tutelage decision had been taken because the applicant – due to his disability – had not been able to take care of the child’s upbringing, that the living conditions at the child’s place of residence had been inspected and that the interests of the child had been taken into account. 25.     During a court hearing on 19 December 2007 the applicant stated that he wished his claim to be amended to include a request for cancellation of the tutelage decision. The judge invited the applicant to submit an amended claim in writing. 26.     At a hearing on 8 February 2008 the applicant submitted to the court his amended claim challenging the lawfulness of the tutelage decision and asking the court to order the Desnyanskyy District Council to adopt immediate measures to bring about his daughter’s return. The applicant argued that the contested decision had been taken without his consent and that he had not been informed that the matter had been considered. Referring to the incident on 31 December 2006 as a result of which A.M. had been injured (see paragraph 19 above), the applicant argued that his daughter’s life and health were at risk while she was staying with V.K. The applicant relied inter alia on Articles 152, 153, 157, 160 and 163 of the Family Code, Articles 58, 79, 1167 and 1168 of the Civil Code, and Articles 3 and 9 of the Convention on the Rights of Children of 1989. 27.     The judge sitting in the case refused to include the amended claim in the case file on the grounds that the “amended” claim was in fact a new claim. The judge noted that its inclusion in the case would require the participation of new parties and would complicate consideration of the original claim. 28.     At the hearing on 8 February 2008 the court delivered a judgment rejecting the applicant’s original claim. The court found that the applicant had been informed of the tutelage decision before he had lodged his claim with the court and as he had not challenged that decision, A.M. was staying with V.K. lawfully. 29.     By the same judgment, the court also rejected V.K.’s counterclaim as unsubstantiated. 30.     The applicant appealed, stating that the first-instance court’s refusal to consider his amended claim was groundless and that the judgment was not in accordance with the relevant law. The applicant also stated that the court had not allowed him to question the witnesses who had appeared before the court, but provided no details in that regard. 31.     On 10 April 2008 the Chernigiv Oblast Court of Appeal rejected the applicant’s appeal. It noted that A.M. had been living “permanently” at V.K.’s place of residence since October 2005 and that, by the judgment of 16 May 2006, the Desnyanskyy District Court had ordered the applicant to pay maintenance to O.M. in respect of A.M.’s upbringing (see paragraph 10 above). The Court of Appeal held that there were no grounds for returning A.M. to the applicant pursuant to paragraph 2 of Article 163 of the Family Code, given that the tutelage decision was in force, that A.M. was staying lawfully with V.K., and that the latter was opposed to the child’s returning to living with the applicant because she believed that it would be contrary to the child’s interests. 32.     Relying on Article 3 of the Convention on the Rights of the Child of 1989, the Court of Appeal found that the applicant had not produced evidence showing that it would be in A.M.’s best interests to live with the applicant or that it was contrary to her interests to live with her tutor. 33.     The Court of Appeal refused to deal with the arguments brought by the applicant on the basis of his amended claim, since it had not been examined by the court of first instance. In that context the Court of Appeal held that the first-instance court’s decision not to include the amended claim was in compliance with Article 126 of the Code of Civil Procedure. 34.     The applicant lodged a cassation appeal. He argued that, in dealing with his case, the courts had not acted in accordance with the proper procedure. In particular, the applicant alleged that the courts had unlawfully refused to consider his amended claim, that they had refused to summon witnesses on his behalf without stating the reasons why, that they had not considered the applicant’s request for the inclusion of important documentary evidence, and that they had systematically restricted his procedural rights, in particular the right to study the case file and to put questions to those taking part in the proceedings. 35.     The applicant also argued that the courts’ decisions had not been in accordance with the law. 36.     In his cassation appeal the applicant further alleged that V.K. had systematically hindered his access to the child. 37.     By a decision of 9 September 2008, the Supreme Court rejected the cassation appeal as unsubstantiated, finding that the arguments contained in it did not constitute a basis for concluding that the judgments of the lower courts were wrong or unlawful. No further reasons were given by the Supreme Court. 38.     According to the applicant, some of the court hearings had been held in the absence of his representative, who was unable to attend for health reasons. He provided no further details in that regard. C.     Second set of court proceedings 39.     On 1 April 2008 the applicant lodged a claim with the Desnyanskyy District Court seeking cancellation of the tutelage decision. The claim was based on the same arguments as those supporting the original and amended claims lodged by the applicant in the course of the first set of proceedings (see paragraphs 21 and 26 above). 40.     On 18 August 2008 the Desnyanskyy District Court, relying on paragraph 1 of Article 3 of the Convention on the Rights of the Child of 1989, Articles 243-244 of the Family Code and Section 2.2 of the Regulations on Tutelage and Guardianship of 1999, found against the applicant. 41.     The court noted that (i) the applicant had not produced any evidence showing that it would be in A.M.’s best interests to live with the applicant or that it would be contrary to her interests to live with her tutor; (ii) the tutelage service within the Desnyanskyy District Council had not had any concerns about the fulfilment by V.K. of her duties as a tutor; (iii) A.M. had lived at her grandmother’s home for three years before the decision in the case had been taken; (iv) during that period the applicant had not enquired about his child’s situation, had not used any means to communicate with her, and had not visited the child either at her place of residence or at the nursery which she had been attending; and (v) the applicant had participated in his daughter’s upbringing only by making maintenance payments. The court held that the contested decision had been adopted in accordance with the law and that A.M.’s interests had been duly taken into account. 42.     The applicant appealed, stating that the first-instance court had not taken into consideration his submissions that (i) V.K. had unlawfully retained his daughter before the tutelage decision had been adopted; (ii) V.K. had been hindering his communication with the child; (iii) there were witnesses alleging that V.K. had been abusing alcohol and “misbehaving”; (iv) V.K. had been responsible for the incident on 31 December 2006 (see paragraph 19 above); and (v) in addition to paying maintenance, the applicant had been sending money and parcels to A.M. by post, as he had not had the opportunity to deliver them in person. Moreover, V.K. had allegedly refused to let him into her house when he had come to see his daughter and had not answered his phone calls. 43.     The applicant also alleged that the first-instance court had refused to question witnesses on his behalf and that he had not been allowed to put questions to the witnesses who had been questioned by the court. The applicant did not provide further details in respect of those allegations. 44.     On 4 November 2008 the Chernigiv Oblast Court of Appeal rejected the applicant’s appeal, finding that (i) A.M. had been living with V.K. at her home since October 2005; (ii) A.M. had been under the medical supervision of the clinic in that location since birth; (iii) after O.M.’s death the applicant had not taken charge of the child’s upbringing; (iv) the applicant had not challenged the lawfulness of his daughter’s living with the grandmother prior to the adoption of the tutelage decision; (v) the applicant suffered from the second-highest degree of disability; and (vi) due to his “impaired moving capacity” the applicant had been sleeping in his office overnight on workdays (from Monday to Friday), returning home only for weekends. Relying on those grounds, the Court of Appeal held that the tutelage decision safeguarded the interests of the child, was in accordance with the law, and did not violate the applicant’s rights to educate and support his child. 45.     The Court of Appeal also held that the applicant’s allegations that the retention of his daughter by V.K. had been unlawful, that his communication with A.M. had been hindered and that V.K. had failed to fulfil her duties as a tutor were not supported by evidence and had been disproved by the information submitted by the Desnyanskyy District Council. 46.     The applicant lodged a cassation appeal. He argued that, in violation of the proper procedure, the first-instance and appeal courts (i) had refused the applicant’s requests to have certain audio recordings examined in court and to check the reliability of the documents provided by the Desnyanskyy District Council; (ii) had not included the documentary evidence on which the applicant had relied; (iii) had not allowed the applicant to put questions to witnesses – in particular Y.L. – or to express his views regarding the way the hearings had been held; and (iv) had not observed the relevant regulations when accepting medical information (which he did not further specify). The applicant also stated that the courts had not taken into account his arguments that he had been unable to take care of A.M. because V.K. had hindered his communication with the child. In particular, she had allegedly “hidden” A.M. from the applicant, had not opened the door of her house when the applicant had tried to visit, and had otherwise blocked any opportunity for the applicant to see A.M. The applicant also argued that the courts had not applied the law pertinent to the case. 47.     On 27 January 2009 the Supreme Court rejected the cassation appeal, finding that it contained no arguments requiring examination of the case material or demonstrating that the lower courts had violated procedural or substantive law. D.     The situation after completion of the court proceedings 48.     According to the applicant, V.K. had continued to hinder his communication with A.M. and he had not been able to participate in his daughter’s upbringing. In particular, on occasions when the applicant had come to visit his daughter, V.K. had not opened the door of her house. She had also refused to allow the applicant to take A.M. for medical examination. 49.     The applicant alleged that, despite his repeated requests for assistance in obtaining access to his daughter to enforce his parental rights, the authorities had been reluctant to help him. The applicant submitted copies of letters from the Desnyanskyy District Council and the Andriyivka Council stating inter alia that the living conditions of A.M. were satisfactory and that she was doing well at school. However, the applicant had not contacted the school administration to learn about the child’s everyday life and progress. In a letter dated 6 July 2009, the Desnyanskyy District Council stated that it would no longer deal with further similar requests from the applicant. 50.     The applicant also argued that he could provide adequate living conditions for his daughter, being a physiologist with a teaching qualification; he had sufficient income and owned a flat. The applicant also stated that he had been a tutor to Y. L. 51.     According to the applicant, his daughter’s living conditions at V.K.’s place of residence were worse than the conditions at his home, V.K.’s house in Andriyivka having no sanitary facilities or no natural gas supply. The applicant explained that the school which his daughter attended was about to be closed on the grounds of having too few pupils. The school was two kilometres away from V.K.’s house, whereas the applicant’s house was only about two hundred metres from a school. II.     RELEVANT DOMESTIC LAW A.     Children’s upbringing and contact with their parents 52.     Under Article 51 of the Constitution and Article 5 of the Family Code of 2002, the family, childhood, motherhood and fatherhood all fall under the protection of the State. In particular, the State must promote and encourage motherhood and fatherhood and ensure that children are brought up in a family (paragraphs 2 and 3 of Article 5 of the Family Code). Where the State puts in place regulations concerning family matters, it must take into account the interests of the child to the greatest extent possible. 53.     Articles 151 and 163 of the Family Code provide that children who are minors should, as a priority, be “brought up personally” by their parents and live with them. The rights of parents – including those living separately from the child – to bring up a child who is a minor and to communicate with him or her can only be restricted by law (Articles 153 and 157). A parent living separately from a child may seek the assistance of the State Tutelage Service or of the courts to enforce his or her parental rights in cases where no agreement has been reached on that matter with the parent who has custody of the child (Articles 157-161). Where the child is being retained by a person without lawful basis, the courts may, at the parents’ request, order the return of the child if this does not run contrary to the child’s interests (Articles 162 and 163). Parents determine jointly where a child who is a minor should live (Article 160). Article 155 generally prohibits the exercise of parental rights where it is contrary to the interests of the child. 54.     Similar provisions concerning the upbringing of children and contact with their parents are contained in Sections 11, 12, 14, 15 and 15-1 of the Act on the Protection of Childhood of 26 April 2001. B.     Tutelage and guardianship 55.     Article 243 of the Family Code and Article 58 of the Civil Code of 2003 provide that orphans and “children deprived of parental care” should be placed under tutelage or guardianship. A tutor should be appointed for children aged up to fourteen years and a guardian should be appointed for children who are between fourteen and eighteen years old. Under Article 63 of the Civil Code such an appointment may be made only upon a written request from the person wishing to become that tutor or guardian. Article 60 of the Civil Code sets out specific situations in which such an appointment should be made by the courts; in other situations it is for the tutelage authorities to decide on the matter. In its overview of court practice in 2007 (issued in December 2008), the Supreme Court noted inter alia that there had been no unified practice regarding the allocation between the courts and the tutelage and guardianship bodies of powers relating to the tutelage and guardianship of children. In particular, there had been instances where courts had refused to appoint a guardian or a tutor when deciding to deprive parents of parental rights, although they had power to do so under Article 60 of the Civil Code. 56.     According to Section 1 of the Act on the Protection of Childhood of 26 April 2001 and Section 1 of the Act on the Social Protection of Orphan Children and Children Deprived of Parental Care of 13   January 2005, the notion of “children deprived of parental care” covers situations where such care is not being provided because (i) the parents have been deprived of their parental rights; (ii) the children have been removed from their parents without depriving them of parental rights; (iii) the parents are found to be missing or legally incapable or declared dead; (iv) the parents are serving a prison sentence or are being detained during pre-trial investigations; (v) the parents are wanted by the law-enforcement authorities for failure to pay maintenance and their whereabouts are unknown; (vi) the parents have been suffering from a long-term illness which prevents them from fulfilling their parental obligations; (vii) the parents have abandoned the child. Children deprived of parental care also include foundlings whose parents are unknown and homeless (abandoned) children. 57.     The Regulations on Tutelage and Guardianship, enacted by the Cabinet of Ministers on 26 May 1999 (no. 34/166/131/88), provide that a child may be placed under tutelage where parents “have not been able (because of their state of health (people suffering from the first or the second officially recognised degree of disability) ...) to take care of the child’s upbringing for over six months” or “have not lived with the child and, for no justifiable reason, have not taken part in the child’s upbringing and sustenance, have not taken care of the child for over six months, or have abandoned the child, which is demonstrated by the corresponding police reports”. 58.     Under Article 247 of the Family Code and Article 62 of the Civil Code, a child under tutelage should live with the tutor, either at the tutor’s home or at the child’s place of residence. The tutor determines the child’s upbringing and may seek the child’s return from any person who retains the child without legal grounds. The tutor should not hinder the child’s communication with his or her parents where such communication does not run contrary to the child’s interests (Article 249 of the Family Code). The tutor’s actions may be challenged before the authorities, including the courts (Article 79 of the Civil Code). 59.     Tutelage should be terminated when a child who is a minor is transferred to the parents’ care or when the child becomes fourteen years old (paragraph 1 of Article 76 of the Civil Code). In the latter case the child’s tutor becomes his or her guardian, for which no separate decision is needed. 60.     Paragraph 27 of the Regulations on Actions to be taken by the Tutelage and Guardianship Authority on Protection of Children’s Rights, enacted by the Cabinet of Ministers on 24 September 2008 (no. 866), provides inter alia that “a child [previously given the status of] ‘deprived of parental care’ should lose that status when one or both parents resume taking care [of him or her] on the basis of ... a report by the tutelage service that the child may be transferred to his or her parent or parents.” District administrations are empowered to take decisions concerning issues of status. Paragraph 5.4 of the Regulations on Tutelage and Guardianship (see paragraph 57 above), empowers the tutelage service to take a decision terminating tutelage if the child is returned to his parents’ care. 61.     Pursuant to Article 79 of the Civil Code, the actions of a tutor can be challenged before tutelage authorities or courts. III.     The United Nations Convention on the Rights of the Child of 1989 62.     The relevant provisions of the United Nations Convention on the Rights of the Child of 1989, which entered into force in respect of Ukraine on 27   September 1991, read: Article 3 “1.     In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2.     States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. ...” Article 5 “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. ” Article 9 “1.     States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2.     In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3.     States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. ...” Article 20 “1.     A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State. 2.     States Parties shall in accordance with their national laws ensure alternative care for such a child. 3.     Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.” THE LAW I.     ALLEGED VIOLATION OF THE CONVENTION 63.     The applicant complained that his communication with A.M. had been hindered and that he had not been able to participate in the child’s upbringing. In his view, the authorities had failed to protect his parental rights. 64.     The applicant complained under Article 14 of the Convention that he had been discriminated against by the authorities, including the courts, which had given preference to V.K. in his child-care case because of his gender and disability. After the termination of the court proceedings he had allegedly continued to suffer discrimination in the exercise of his parental rights as regards A.M. 65.     The applicant further complained under Articles   6   §   1 and 13 of the Convention that the courts which had dealt with his case had been biased, that they had not applied the relevant law, that they had restricted his procedural rights in an unfair manner, and that their decisions had been wrong, discriminatory and ill-founded. 66.     The Court notes that the applicant’s complaints touch on several distinct issues. 67.     Firstly, they are about the alleged interference with the applicant’s family life in so far as it concerns his child, A.M., which falls to be examined under Article 8 of the Convention taken alone and also in conjunction with Article 14, as the applicant complained that he had been, and continued to be, discriminated against by the authorities. These provisions read: Article 8   “1.     Everyone has the right to respect for his private and family life, his home and his correspondence.   2.     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.” Article 14 “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.”   68.     Secondly, the applicant’s complaints concern the allegations of unfair court proceedings which fall to be examined under Article 6 § 1 of the Convention, which reads, in so far as relevant to the applicant’s submissions: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an ... impartial tribunal ...” 69.     The Court notes that at the heart of the present case are the applicant’s grievances concerning the violation of his parental rights. Accordingly, the Court will deal first with the applicant’s complaints under Article 8 of the Convention taken alone and in conjunction with Article 14, and then with his complaints under Article 6 § 1 of the Convention. A.     Alleged violation of Article 8 of the Convention 70.     The Court notes that the applicant’s complaints falling to be examined under Article 8 of the Convention are twofold. They concern, firstly, the alleged hindrance of the applicant’s access to his child and his inability to participate in her upbringing after his wife’s death in June 2006 and, secondly, the allegedly deficient decisions of the authorities, including the courts, concerning the placement of A.M. The Court will examine these two aspects of the applicant’s complaints in turn. 1.     Alleged hindrance of the applicant’s access to his child and his inability to participate in her upbringing (a)     Admissibility 71.     The Government submitted that the applicant’s communication with the child had not been hindered prior to the adoption of the tutelage decision; at no time between October 2005 and June 2006 had the applicant asked the Desnyanskyy District Council to determine the manner of his participation in the child’s upbringing and communication with her; that he had not lodged a claim with the courts for the child’s return within six months of his wife’s death; that the applicant had requested the assistance of the police in that matter only once, namely on 19 September 2006; and that, having been informed in October 2006 by the police that no criminal investigation could be initiated in his case and that he should raise the matter before the courts, the applicant had waited until February 2007 to lodge a claim which had eventually been left undecided because the applicant had failed to appear before the court. According to the Government, the latter demonstrated that the applicant had no interest in the child’s return and did not wish to participate in her upbringing. Relying on those arguments, the Government stated that the applicant’s allegations of hindrance to his contact with the child, in so far as they concerned the period before the adoption of the tutelage decision, were unsubstantiated and that, moreover, he had not exhausted the domestic remedies available for those grievances. 72.     As to the applicant’s complaints of hindrance to his communication with the child and his participation in her upbringing after the adoption of the tutelage decision, the Government claimed that they were inadmissible for non-exhaustion of domestic remedies. In particular, they argued that the applicant had not sought termination of the tutelage and the return of his child, which he could have done pursuant to Article 76 of the Civil Code, paragraph 5.4 of the Regulations on Tutelage and Guardianship, and paragraph 27 of the Regulations on Actions to be taken by the Tutelage and Guardianship Authority on Protection of Children’s Rights (see paragraphs 59-60 above). Under those provisions the return of a child was possible in cases where the child could no longer be considered as “deprived of parental care”. 73.     The applicant disagreed, claiming that he had pursued all remedies available under Ukrainian law, but that they had proved to be ineffective. In particular, he had raised his complaints before the domestic courts. He had also made complaints to the police and the municipal authorities. 74.     The applicant also referred to an overview of court practice issued by the Supreme Court in December 2008, in which it was noted that there was no unified practice regarding the allocation between the courts and the tutelage and guardianship bodies of powers relating to the tutelage and guardianship of children (see paragraph 55 above). The applicant claimed that the above-mentioned legal inconsistency and the lack of cooperation between the different bodies involved in his case had meant that he had been deprived of any assistance in having his daughter returned to him. 75.     The Court reiterates that it is only remedies which are effective that have to be exhausted. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available both in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. Once this burden of proof has been satisfied, it falls to the applicant to show that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that special circumstances existed which absolved him or her from this requirement. The application of the rule of exhaustion of domestic remedies should be applied with some degree of flexibility and without excessive formalism (see, as a recent example, Manic v. Lithuania, no. 46600/11, § 80, 13 January 2015). 76.     The Court notes that in the present case the question of exhaustion of domestic remedies is closely linked to the merits of the applicant’s complaints under Article 8 of the Convention in so far as they concern the allegedly inadequate response of the authorities to the applicant’s complaints of hindrance to his access to the child and his inability to participate in her upbringing (see paragraph 63 above). This question should therefore be joined to the merits. 77.     The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b)     Merits (i)     Relevant principles 78.     The Court reiterates that, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for private and family life.     In relation to the fundamental guarantee of mutual enjoyment by parent and child of each other’s company, the Court has repeatedly held that Article 8 includes both a parent’s right to take measures for the purpose of being reunited with his or her child and an obligation on the part of the national authorities to take such action (see, among other authorities, Ignaccolo-Zenide v. Romania , no. 31679/96, § 94, ECHR 2000 ‑ I). This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures, but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299, and Fuşcă v. Romania , no. 34630/07, § 34, 13 July 2010). 79.     The obligation on the part of the national authorities to take measures to facilitate contact between a non-custodial parent and a child is not,   however, absolute (see Hokkanen , cited above, § 58). It may not be possible for the establishment of contact to take place   immediately and preparatory or phased measures may be required. Moreover, any such contact, as well as its nature and extent will depend on the circumstances of each case and will ultimately be subject to the best interests of the child. Although national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, with paramount importance being attached to the best interests of the child and his or her rights under Article 8 of the Convention (see, among others, Johansen v. Norway , 7 August 1996, § 78, Reports of Judgments and Decisions 1996 ‑ III, and Hokkanen , cited above, § 58). 80.     What is decisive is the question of whether or not the national authorities have taken all such appropriate steps to facilitate contact as can reasonably be demanded in the specific circumstances of each case (see Hokkanen, cited above, § 58, and Ignaccolo-Zenide , cited above, § 96). In this context, the adequacy of the steps or of the measures is to be judged by the swiftness of their implementation, as the passage of time can have irremediable consequences for relations between the child and a parent who does not live with the child (see Ignaccolo-Zenide , cited above, § 102). (ii)     Application of these principles in the present case 81.     The Court notes that the applicant was not formally deprived either of the right of access to his child or of the right to participate in the child’s upbringing. However, according to the applicant, he could not effectively exercise those rights because after his wife’s death V.K. had hindered the applicant’s access to and communication with A.M. In particular, V.K. moved with A.M. to another location, did not answer the applicant’s phone calls and did not let him visit his daughter at her home (see paragraphs 11, 42 and 48 above). 82.     As demonstrated by the evidential material submitted by the parties, the applicant complained about this issue initially to the Municipal Family Welfare Centre in Chernigiv and to the local police. The Municipal Family Welfare Centre informed the applicant that the authorities in the locality where his daughter lived at the time had been asked to assist him in his request for her return, though no further action was taken in that regard. The police, for their part, had refused to intervene. The applicant was advised to raise this matter before the courts, which he did. The courts rejected his complaints, finding that they were not supported by any evidence. They also found that the applicant had not visited his daughter either at her place of residence or at the nursery she had been attending for a long time (see paragraphs 41 and 44 above). 83.     After the court proceedings in question were terminated, the applicant continued complaining to the authorities about the lack of access to his child, though to no avail. Eventually, the authorities refused to communicate with the applicant on this issue (see paragraph 49 above). 84.     Given the above circumstances, the Court finds that, firstly, the applicant did try to get access to his daughter after his wife’s death, which was confirmed by V.K. (see paragraph 23 above). Secondly, given that V.K. had taken his daughter to another location and the applicant’s requests to various authorities seeking their assistance in obtaining access to his daughter had been unsuccessful, he arguably encountered difficulties in communicating with her. Thirdly, in the light of the replies from the authorities and the findings of the courts, the issue of access was not thoroughly examined. No effort was made to check whether the applicant could have had effective access to his daughter. It appears that it was presumed that the blame for his failure to visit his daughter lay with him, even though there was no comprehensive