CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 décembre 2017

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RUSSIA   (Application no. 70135/14)                 JUDGMENT       STRASBOURG   12 December 2017     FINAL   12/03/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Malinin v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Luis López Guerra,   Helen Keller,   Dmitry Dedov,   Alena Poláčková,   Georgios A. Serghides,   Jolien Schukking, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 21 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 70135/14) 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 Aleksey Nikolayevich Malinin (“the applicant”), on 7 October 2014. The application was updated on 14   September 2015. 2.     The applicant, who had been granted legal aid, was represented by Ms   V. Bokareva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr   G.   Matyushkin, Representative of the Russian Federation to 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 issue a residence order in his favour in respect of his sons, and the judicial authorisation for the children to travel abroad with their mother, had violated his right to respect for his family life. 4.     On 26 May 2015 and 8 March 2016 the above complaints were communicated to the Government and the remainder of the application of 7   October 2014 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1979 and lives in Nizhniy Novgorod Region. 6.     On 25 January 2006 the applicant’s wife, I., gave birth to a son, N. On 25   August 2008 I. gave birth to another son, V. The family lived in Vladimir. 7.     In July 2011 the applicant and I. divorced. 1.     Residence order proceedings (a)     First residence order 8.     On 8 October 2011 the applicant took the children away from their home in Vladimir and brought them to the town of Shakhunya in Nizhniy Novgorod Region where his mother lived. He did not obtain I.’s consent. 9.     On an unspecified date the applicant applied to the Shakhunskiy District Court of Nizhniy Novgorod Region for a residence order under which N. and V. would live with him in Shakhunya. On 24 October 2011 I.   lodged a counterclaim, asking for a residence order under which the children would live with her in Vladimir. 10.     On an unspecified date in November 2011 the applicant returned the children to their mother in Vladimir. 11 .     On 19 January 2012 experts appointed by the court issued their report. They found that the applicant was self-confident, domineering and inclined to lie. He was emotionally stable but, at the same time, easily carried away and fickle in his interests, which could mean that he would not always wish to take care of his children. The applicant strived to spend a lot of time with the children and was against punishing them. I. was seen to be impulsive, anxious, diffident and emotionally unstable. Her intellectual capacities were low. Her manner of upbringing was erratic: she vacillated between excessive demands and punishments and insufficient demands and punishments. Her manner of upbringing could be detrimental to the children’s psychological development. The children were anxious and stressed. N. had a closer emotional connection with his father than with his mother. As regards V., any situations involving his mother were stressful to him because they were associated with excessive demands and punishments. 12.     The childcare authority issued an opinion that the children should reside with their mother. The mother had better living conditions. The children attended school (N.), a nursery school (V.) and various extracurricular activities at her place of residence in Vladimir. I. took good care of the children and did not prevent them from seeing their father. 13.     The applicant submitted audio recordings of his conversations with his children. A psychologist, who had analysed those recordings, stated in court that the parents were both uncooperative and were both equally responsible for the stress from which N. and V. suffered. The audio recordings submitted by the applicant showed that he had tried to manipulate the children into saying that they wanted to live with him. In her opinion, the children had a stronger attachment to the mother. It was preferable that they lived with her in Vladimir where the living conditions were more comfortable and where they had constantly lived since their birth. 14.     On 20 February 2012 the Shakhunskiy District Court granted I.’s application for a residence order in her favour and dismissed a similar application by the applicant. The court doubted the authenticity of an employment certificate from a private company submitted by the applicant. Given that he had not produced any official documents confirming his employment, the court found that he had not proved that he had a permanent income. There was no evidence that the applicant had supported his children financially during the period since his separation from I. in February 2011 until October 2011, when the children had been living with their mother. He had started to pay child maintenance only after he had lodged his application for a residence order in October 2011. The applicant had moreover asked that the children’s residence be fixed at his mother’s address, which showed that he did not have any intention of taking care of them personally. It was clear from the audio recordings submitted by the applicant, as analysed by a psychologist, that the applicant had attempted to manipulate the children and to force them to make a choice between the parents. He was therefore willing to reach his aims by any means, even at the price of making his children suffer. He had moreover taken the children away from their home in Vladimir and brought them to his mother’s residence in Shakhunya without I.’s consent. According to witness statements, I. had always taken good care of the children. It was I. who had always accompanied them to school and extracurricular activities. The fact that she had a partial disability had never so far prevented her from raising them and caring for them. The fact that the applicant’s living conditions were better was insufficient in itself for making a residence order in his favour. Nor was the court convinced by the applicant’s assertion that the children had a stronger attachment to him than to their mother. The children had always lived with their mother, except for several weeks during the summer holidays when they had stayed with him at his mother’s residence in Shakhunya. There was no evidence that I. had shouted or excessively punished the children. Although the experts had indeed found her manner of upbringing to be erratic, their report did not mention that she could cause detriment to their psychological development. Moreover, it was evident from the audio recordings that it was the applicant who had tried to turn the children against their mother. The childcare authorities had also considered that it was in the children’s interest to live with the mother. Given that I. had never prevented the applicant from seeing the children, the applicant would be able to visit them as often as he liked, while the children would continue living in the environment familiar to them. 15.     On 29 May 2012 the Nizhniy Novgorod Regional Court upheld the judgment on appeal, finding that it had been lawful, well reasoned and justified. The applicant’s cassation appeal was rejected by a judge of the Nizhniy Novgorod Regional Court on 30 November 2012. (b)     Second residence order 16.     In January 2013 the applicant applied to the Oktyabrskiy District Court of Vladimir for a reconsideration of the children’s residence arrangements. He asked for a residence order under which N. and V. would live with him in Vladimir. He submitted, in particular, that the children wished to live with him. He had been picking them up from school almost every day lately and bringing them back to I. only to sleep. I. shouted at the children, slapped them and humiliated them. She did not work and lived on social benefits and child maintenance. In the alternative, he asked for a contact order, claiming that I. occasionally prevented him from seeing the children. 17 .     On 4 March 2013 N. and V. were assessed by a psychologist who found that their psychological state was good. They were resigned to their parents’ divorce and no longer experienced any negative emotions in that connection. Their relationship with their mother was friendly and supportive. They considered her as family, while their father was considered to be a friend who came regularly to play with them. 18.     On 22 March 2013 the childcare authority issued its opinion on the case. It found that both parents had satisfactory living conditions. N. had expressed a wish to live with the applicant. The childcare authority considered that it was desirable to perform a psychological expert examination of the children to assess their attachment to each parent. However, I. objected to any assessment of her children by a psychologist. The childcare authorities had however learned that she had secretly seen a psychologist. The children had told the psychologist that they wished to live with their father. However, given that the children had not yet reached an age at which they were able to form their own opinions on the matter, as they were still highly impressionable and changeable, the childcare authority considered that it was possible for the children to continue living with their mother. The applicant should be able to have regular contact with the children for two weekends per month. 19.     On 6 May 2013 the Oktyabrskiy District Court rejected the applicant’s application for a residence order and maintained the residence order in favour of I. It found it established that I. was unemployed and that the applicant had a permanent job. The living conditions of both parents were satisfactory. The court took note of the expert report of 19   January 2012 (see paragraph 11 above), observing that the experts had found that the parent-child relationships were complicated in the applicant’s family. The expert report did not however contain an explicit finding that the children were attached to their father more than to their mother. The applicant had not proved that I. had shouted at the children, humiliated them or neglected her parental responsibilities. Evidence showed that she was taking good care of the children. There was therefore no reason to change the children’s residence arrangements established by the judgment of 20   February 2012. 20 .     The court further held that N. and V. were entitled to maintain contact with their father and his paternal family and determined the contact schedule as follows. The applicant was to be able to have contact with the children each weekend from 5 p.m. on Saturday until 7 p.m. on Sunday at the applicant’s place of residence, with the mother’s prior agreement. 21.     On 25 September 2013 the Vladimir Regional Court upheld the judgment on appeal. A cassation appeal by the applicant was rejected by a judge of the Vladimir Regional Court on 14 May 2014. (c)     Third residence order 22 .     On 4 October 2013 the applicant lodged a new application for a residence order in his favour with the Oktyabrskiy District Court. He submitted that V. currently lived with him and did not want to return to his mother who shouted at him and physically punished him. Both V. and N. had stated many times that they wanted to live with him. He devoted a lot of time to the children by picking them up after school, bringing them for walks and educating them. He had a comfortable and stable income and good living conditions. By contrast, I. did not work and did not have any income except social payments and the child maintenance payments that she received from the applicant. It was therefore the applicant who maintained the children financially. The applicant further relied on the expert report of 19   January 2012 (see paragraph 11 above) from which it was apparent that the children had a stronger attachment to their father than to their mother, that any situations involving their mother were stressful for them and that the mother’s methods of upbringing were detrimental to the children’s psychological development. The applicant submitted audio recordings of many conversations he had had with the children between March 2012 and September 2013. The children invariably stated that they wanted to live with the applicant, complained that their mother shouted at them and whipped them with a belt, and protested, crying, that they did not want to return living with her. 23 .     On 19 February 2014 the childcare authority issued its opinion on the case. It found that V. had indeed lived with the applicant during his (V.’s) illness from 25   September to 31 October 2013. He had however then returned to his mother. The children also stayed with the applicant on weekends. The applicant always accompanied V. to nursery school and N. to extracurricular activities. He paid child maintenance without delay and regularly gave additional financial support to the children. The applicant and I. were attending mediation sessions. The applicant was in permanent employment and had a high stable income. I. was partly disabled and did not work. Her mother and grandmother helped her in raising the children. According to I., the children were very attached to their father, spoke to him over the telephone every day and spent their holidays with him. The childcare authority concluded that the children were attached to both parents, that I. was taking good care of their health and development and that their living conditions were comfortable. It was therefore possible for the children to continue living with their mother. 24 .     A representative of the childcare authority stated at the hearing that she had followed the family for some time. She had the impression that the children were equally attached to both parents and both parents took equally good care of them. Recently she noted positive changes in the highly conflictive relationship between the parents. In particular, the mother allowed the father to spend more time with the children than before. The father picked up the children from school and they spent weekends and part of their holidays with him. She considered that there was no reason to change the children’s residence arrangements and recommended that the children should continue living with their mother. 25.     I. stated that she loved her children and took good care of them. She also alleged that the applicant’s motives for asking for a residence order in his favour were mercenary as he wanted to use the flat that belonged to the children. She therefore asked that the residence order previously granted to her be maintained. 26.     The applicant’s neighbour stated that she often saw the applicant walking and playing with the children. She thought that he was a very good father and that the children loved him. In October 2013 I. had come to the applicant’s flat in the middle of the night on at least three occasions. She had shouted, had threatened to break the windows and to take the children away from the applicant by force. The neighbours had had to call the police, who took I. away. 27 .     In reply to the applicant’s request to play the audio recordings submitted by him on 4   October 2013 (see paragraph 22 above), the judge stated that it was not necessary because the other party had not contested them. The applicant’s written description of those audio recordings had been examined at the hearing. 28 .     The applicant also asked that a copy of the expert report of 19   January 2012 be admitted as evidence. Both I. and the childcare authority objected, arguing that the expert examination had been made two years before and was therefore out of date. The court rejected the application, finding that the expert report had been analysed by the courts which had issued previous residence orders. 29 .     On 19 February 2014 the Oktyabrskiy District Court ordered an expert psychological examination of the children to assess their relationship with both parents. 30 .     On 8 April 2014 the expert found that it was not possible to make an expert report because I. had refused to come to the examination or to bring the children. The court considered that it was not necessary to reiterate the order for an expert examination as there was sufficient material for making a decision on the case. 31 .     On 8 April 2014 the Oktyabrskiy District Court rejected the applicant’s application for a residence order in his favour. The court found no circumstances warranting the change of the residence arrangements established in the residence orders of 20 February 2012 and 6 May 2013. It had no reason to doubt that I. loved her children and took good care of them. The applicant’s allegations that I.’s manner of upbringing were detrimental to the children’s development had not been confirmed by the evidence in the case. The criminal proceedings on charges of fraud against her had been discontinued. Her living conditions were satisfactory. The fact that she had no employment or income did not justify granting a residence order to the applicant. She did not prevent the applicant from seeing the children as much as he liked. As indicated in the judgment of 6 May 2013, the expert report of 19   January 2012 did not contain an explicit finding that the children were more attached to their father than to their mother. The childcare authorities had found that the children had been equally attached to both parents. There were therefore no reasons to issue a residence order in favour of the applicant. 32 .     On 1 July 2014 the Vladimir Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified. In particular, it held that the applicant had not proved that there had been sufficient reasons to change the residence arrangements established by the earlier residence orders. No exceptional circumstances warranting the children’s separation from their mother had been established. It had not been proved that the children had had an exceptionally strong attachment to the father or wished to live with him and him only. In such circumstances, and taking into account the children’s age, their established way of life, the satisfactory living conditions of both parents and the opinion of the childcare authorities’ on the case, the decision to maintain the residence order in favour of the mother was in the best interests of the children. The Regional Court further dismissed the applicant’s complaint that the District Court had not assessed the family situation with sufficient thoroughness because it had not questioned the children and had refused to admit the expert report of 19   January 2012 as evidence. The Regional Court held that, given that the children were under ten years old, their opinion on the residence issue could not be taken into account. As regards the expert report of 19 January 2012, it had been made in the framework of separate proceedings and had been already assessed by the courts in those proceedings. The District Court considered that the expert opinion was not necessary because the evidence included in the case file was already sufficient to adjudicate the dispute. 33.     A cassation appeal by the applicant was rejected by a judge of the Supreme Court of the Russian Federation on 8 December 2014. 2.     Departure of the children to Germany and subsequent events 34.     On 4 December 2014 the Oktyabrskiy District Court of Vladimir authorised, against the applicant’s will, a trip abroad for the children for the winter holidays. On 15 December 2014 the children left for Germany with their mother. They returned to Russia on 9   January 2015. The decision of 4   December 2014 was later annulled by the Oktyabrskiy District Court because it found that it had no territorial jurisdiction over the case. 35 .     On an unspecified date I. applied to the Leninskiy District Court of Vladimir for a judicial authorisation for the children to travel to Germany during the approaching school summer holidays, complaining that the applicant had refused to give such an authorisation. The applicant submitted in reply that if the children left for the entire summer holidays he would not be able to see them for three months. He also submitted that there was a risk that the children might not return from Germany. He asked for an interim measure prohibiting the children from leaving Russia pending the proceedings. 36 .     On 12 March 2015 the Leninskiy District Court rejected the applicant’s application for interim measures, finding that the application of interim measures requested would amount to a prejudgement of the case. 37 .     On 6 May 2015 the Leninskiy District Court authorised the children’s trip abroad for the period from 1   June to 31 August 2015. The court found it established that I. intended to travel to Germany together with V. and N. during the summer school holidays. She had received an accommodation guarantee from her new partner’s sister, who lived permanently in Germany. The applicant had however refused to give V. and N. an authorisation to travel without giving reasons. The court found that the parents could not exercise parental rights to the detriment of their children’s rights. In particular, the children’s right to travel could not be made dependant on the parents’ willingness to authorise their going abroad, especially in the case of a disagreement between the parents. The court considered that the children’s trip abroad would not breach the applicant’s rights and would encourage the children’s development, education and broad-mindedness. 38.     The applicant appealed. He submitted that under domestic law if a child left Russia accompanied by one of the parents an authorisation from the other parent was not required; such authorisation was required only if the child went abroad unaccompanied by the parents. A judicial travel authorisation could be given only if one of the parents had formally objected to the child’s going abroad (see paragraph 51 below). Given that the applicant had never lodged such an objection in accordance with the procedure prescribed by law, the judicial travel authorisation had been unlawful and unnecessary. 39.     On 9 July 2015 I. married her partner, a national of Germany. She then left for Germany with N. and V. In September 2015 she gave birth to a child. N. and V. are now living in Germany with their mother, her new husband and their half-brother. 40.     The applicant lodged an additional appeal, submitting that although the decision of 6 May 2015 had not yet become enforceable, I. had been able to leave with the children for Germany. That fact had clearly demonstrated that a judicial authorisation was not required for leaving Russia. It had however been used by I. to obtain a German visa for the children, which she could not have otherwise obtained without his agreement. The applicant also complained that the children had not returned to Russia by 31 August 2015, although the judicial authorisation had been valid only until that date. 41 .     On 2 December 2015 the Vladimir Regional Court upheld the decision of 6 May 2015 on appeal. The Regional Court held that it had been lawful, well reasoned and justified. In particular, it found that the applicant had not submitted to the District Court any evidence showing that the trip abroad would have been contrary to the children’s best interests. 42.     On 8 September 2015 the bailiffs service opened, at the applicant’s request, enforcement proceedings in respect of the contact order of 6 May 2013 (see paragraph 20 above). 43.     In October 2015 the applicant complained about the bailiffs’ inaction to the Oktyabrskiy District Court. On 16 December 2015 the Oktyabrskiy District Court rejected his complaint, finding that the bailiffs had taken measures to enforce the contact order but enforcement had been impossible through no fault of the bailiffs service, specifically because I. and the children had been living in Germany. On 3 March 2016 the Vladimir Regional Court upheld that decision on appeal. Cassation appeals by the applicant were rejected by a judge of the Vladimir Regional Court on 21   October and then by a judge of the Supreme Court on 30 December 2016. 44.     Meanwhile, the bailiffs asked the Oktyabrskiy District Court for a suspension of the enforcement proceedings on the grounds that I. and the children were abroad and it was therefore impossible to take any coercive measures against her. On 8 February 2016 the Oktyabrskiy District Court rejected the bailiffs’ request, finding that the children’s residence abroad was not a sufficient reason to suspend the enforcement proceedings. 45.     The applicant also submitted numerous requests to various Russian authorities, including in January 2016 to the Ministry of Education and Science of the Russian Federation, for assistance in recovering his children and in enforcing the contact order of 6 May 2013. In December 2015 he complained of the authorities’ inaction to the Leninskiy District Court. On 4   February 2016 the Leninskiy District Court rejected the applicant’s complaint, finding that those authorities had no competence in the matter. The only authority competent to assist him in re-establishing contact with his children was the bailiffs service. On 12 May 2016 the Vladimir Regional Court upheld that judgment on appeal. 46.     According to the Government, in April 2016 the bailiffs service advised the applicant to apply for recognition and enforcement of the contact order to the competent German authorities, via the Ministry of Education and Science of the Russian Federation, in accordance with the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. There is no evidence that the applicant used that procedure. 47.     On an unspecified date I. applied to the Leninskiy District Court for a residence order under which N. and V. would live with her in Germany. The applicant lodged a counterclaim, asking for a residence order under which the children would live with him in Vladimir. He also asked for an interim order to return the children to Russia and to ensure that until their return the children communicated with him via VOIP calls every Wednesday, Friday and Sunday at 9 p.m. (Moscow time). On 24 May 2016 the Leninskiy District Court refused the applicant’s application for an interim order, finding that he had not proved that the failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment. On 22 June 2016 the Vladimir Regional Court upheld that decision on appeal. The residence order proceedings are pending. II.     RELEVANT DOMESTIC LAW 48.     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 or her opinion on the matter. In particular, the court must take into account the child’s attachment to 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). 49.     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 on 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 civil-procedure 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). 50 .     A child is entitled to express her or 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). 51 .     The Procedure for Entering and Leaving the Russian Federation Act, (Law no. 114-FZ of 15 August 1996, as amended on 10 January 2003 ‑ hereinafter “the Entry and Leaving Procedures Act”) provides that as a rule a citizen of Russia who is a minor can leave Russia only together with at least one of her or his parents, adoptive parents or guardians. If a citizen of Russia who is a minor leaves unaccompanied, he or she must have an authorisation to travel from the above-mentioned persons, certified by a notary and mentioning the dates and destinations of travel (section 20(1)). If one of the parents, adoptive parents or guardians objects to the minor’s leaving the Russian Federation, the decision on whether it is permissible for the minor to leave the State is taken by a court. The procedure for filing an objection to the minor’s leaving Russia is to be established by the competent federal executive authorities (section 21). Order no. 273 of 12   May 2003 by the Government of the Russian Federation provides that such an objection is to be filed, in writing, by a parent, adoptive parent or a guardian to the local office of the Federal Migration Service or the Border Control Service. THE LAW I.     SCOPE OF THE CASE BEFORE THE COURT 52 .     The Court notes that in his reply to the Government’s observations the applicant raised several new complaints under Article 8 of the Convention. In particular, he complained about the issuing of the residence orders of 20   February 2012 and 6 May 2013 in favour of his children’s mother, about the non-enforcement of the contact order of 6 May 2013, about his absence from the hearing of 6   May 2015 and about the authorities’ failure to assist him in recovering his children from Germany. 53.     In the Court’s view, the new complaints raised by the applicant are not an elaboration of his original complaints lodged with the Court on 7   October 2014 and 14 September 2015 and communicated to the Government on 26 May 2015 and 8 March 2016. The Court therefore decides not to examine the new complaints within the framework of the present proceedings (see, for a similar reasoning, Nuray Şen v. Turkey (no.   2) , no. 25354/94, § 200, 30 March 2004; Melnik v. Ukraine , no.   72286/01, §§ 61-63, 28 March 2006; Kopylov v. Russia , no.   3933/04, §§   109-10, 29 July 2010; and Antonyuk v. Russia , no.   47721/10, §§ 93-94, 1   August 2013). 54 .     The Court therefore considers it necessary to clarify at the outset that the instant application concerns solely the following decisions: - the residence order of 8 April 2014; - the judicial authorisation of 6 May 2015 for the children to travel abroad with their mother and the refusal to order interim measures pending those proceeding. The content of other decisions as set out in the facts part of the instant judgment are relevant in order to get a broader view of the development of the applicant’s case, but are not as such the subject of the instant application (see Lorenz v. Austria , no. 11537/11, §§ 42 and 43, 20 July 2017) II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE RESIDENCE ORDER 55.     The applicant complained that the issuing of a residence order in respect of his children in favour of the boys’ mother 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. 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.” A.     Admissibility 56.     The Court notes that this complaint 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 1.     Submissions by the parties (a)     The Government 57.     The Government submitted that the decision to issue the residence order in favour of the mother had been lawful and had been based on the best interests of the children. The judge had assessed the family situation in detail and taken into account the submissions by both parents, the opinion of the childcare authorities on the case, the living conditions of both parents, the children’s age and their relationship with each of the parents. There had been no evidence that the children’s attachment to their father was stronger than to their mother or that the mother had abused her parental responsibilities in any way. The making of a residence order in favour of the mother had not amounted to unequal treatment on grounds of sex because the order had been based on the assessment of all relevant factors. 58.     The Government conceded that the children had not been personally heard by the courts because under domestic law only the opinion of a child over ten years old had to be taken into account (see paragraph 50 above); the applicant’s children had not yet reached that age at the material time. They had been however repeatedly interviewed by the childcare authorities, which had established their relationship with each of the parents and their wishes as regards residence arrangements. The children had been moreover assessed in March 2013 by a psychologist, who had found that their psychological state had been good and that their relationship with their mother had been friendly and supportive (see paragraph 17 above). The courts had not relied on that psychological assessment because the applicant had objected to its being admitted as evidence. As regards the expert report of 19   January 2012, contrary to the applicant’s assertions it had not contained an unequivocal finding that the children had been more attached to their father than to their mother. That expert report had been moreover outdated and the judge had therefore decided to order a new expert examination of the children’s relationship with each of the parents. That expert examination had not been performed because I. had refused to be examined or to have the children examined. Domestic law did not provide for a possibility to apply coercive measures in such a case. In any event, the strength of the children’s attachment to each of the parents had not been a decisive factor; it had been assessed together with other factors. The applicant’s request to play audio recordings of his conversations with the children had been examined in accordance with the procedure prescribed by law and rejected because it had been impossible to prove the authenticity of the tapes. 59.     The Government further submitted that the present case was different from the case of Antonyuk (cited above). In contrast to that case, the courts in the present case had made a detailed assessment of the applicant’s family situation, had taken into account all relevant evidence, including expert evidence, and had balanced the interests of everyone involved. In the Government’s opinion, the present case was more similar to the case of Drenk v. the Czech Republic (no.   1071/12, 4   September 2014) where the Court had found that the domestic courts’ refusal to follow outdated expert recommendations or to order a new expert examination on the grounds that they had sufficient recent relevant information had not violated the procedural requirements of Article   8. 60.     The Government also submitted that the domestic authorities had made a substantial effort to mitigate the conflict between the applicant and his ex-wife. Thus, the regional Ombudsman for Children had talked to both parents repeatedly in 2012 and 2013 and urged them to solve their disagreements for the sake of the children. Those efforts had born fruit and by the time the residence order had been issued in 2013, I. had stopped hindering contact between the applicant and the children and they had been able to communicate every day. The Government also claimed that the applicant’s application for a residence order had been motivated by his wish to live in the flat belonging to the children. (b)     The applicant 61.     The applicant submitted that the decision to issue the residence order in favour of the mother had not been based on relevant and sufficient reasons. The domestic courts had not 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. Nor had they made a balanced and reasonable assessment of the respective interests of the children and each of the parents. In particular, the domestic courts had not assessed the children’s relationship with each of the parents and had not taken into account the children’s wish to live with their father. The courts had moreover disregarded the fact that I. had on many occasions prevented the applicant from seeing their children. The applicant considered that the issuing of a residence order in respect of his children in favour of their mother had shown the inequality between men and women in the sphere of childcare which prevailed in Russia. 62.     The applicant further submitted that the decision-making process had been incompatible with the requirements of Article 8. The children had not been questioned by the court, examined by experts or “heard” in any other way. The expert report of 19 January 2012 had not been admitted as evidence, although it had been an important piece of evidence confirming the children’s stronger attachment to him and their fear of their mother who had been associated in their minds with excessive demands and punishments. Although a new expert examination had been ordered by the court on 19   February 2014 at his request, it had never been performed because I. had refused to have the children examined. The domestic authorities had not taken any measures to make her comply with the court order. Instead, the court had, quite illogically, decided that an expert examination had no longer been necessary. The domestic courts had moreover refused to play the audio recordings of the applicant’s conversations with the children at the hearing, although they had been the only evidence the applicant had had of the physical violence used by I. against the children. 2.     The Court’s assessment (a)     General principles 63.     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). 64.     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). 65.     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). 66.     The Court also observes that, 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, seen as a whole, 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). (b)     Application to the present case 67.     The Court considers that the decision to issue 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 , cited above, § 119; 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 N., V. and I. It remains to be examined whether the interference was “necessary in a democratic society”. 68.     The Court observes that after the applicant’s divorce in 2011, a residence order in respect of the children was made in favour of their mother on 20   February 2012. It was maintained on 6 May 2013, and then again on 8   April 2014. The scope of the present case is limited to the latest residence order – that of 8 April 2014 – as the first two residence orders are not the subject of the instant application (see paragraphs 52 to 54 above). The present case is therefore not concerned with the making of the initial residence order in favour of the mother immediately after the divorce. The main issue in the present case is whether the domestic courts advanced relevant and sufficient reasons for their refusal to overturn the residence arrangements established two years earlier. 69.     Before turning to the analysis of the reasons advanced by the domestic courts, it is important to note that the scope of the residence order of 8 April 2014, like the previous residence orders, was limited to determining where N. and V. would live; it did not affect the children’s legal relationship with the applicant, and nor did it take away the applicant’s parental authority. It is also significant that the applicant had been earlier granted contact rights, which were not in any way affected by the residence order of 8 April 2014. 70.     The Court accepts that in reaching decisions on childcare 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 issue a residence order in favour of one of the two separated parents, as the relevant domestic law did not provide for the possibility to issue a shared residence order (see Antonyuk , cited above, §   121). 71.     Having examined the domestic courts’ decisions at issue (see paragraphs 31 and 32 above), the Court finds no