CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 avril 2021

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RUSSIA (Application no. 54366/08)     JUDGMENT   Art 8 ● Failure to secure family life of applicant-father whose son, whom he believed dead, was given up by mother at maternity ward ● Refusal by national courts to return the son to the applicant’s family, without in-depth examination and balancing of all relevant factors ●   Refusal by national courts to grant applicant access to his son, based on profoundly deficient decision-making process   STRASBOURG 20 April 2021   FINAL   20/07/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Naltakyan v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Paul Lemmens, President,   Georgios A. Serghides,   Dmitry Dedov,   Georges Ravarani,   María Elósegui,   Darian Pavli,   Anja Seibert-Fohr, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   54366/08) 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 Zaven Volodyayevich Naltakyan (“the applicant”), on 10   October 2008; the decision to give notice to the Russian Government (“the Government”) of the application in so far as it was lodged by the applicant on behalf of himself, and to declare inadmissible the part of the application raising the same complaints on behalf of his son V.; the decision to grant priority to the above application under Rule 41 of the Rules of Court; the parties’ observations; Having deliberated in private on 23 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant is the father of a boy whose mother (the applicant’s wife) gave him up at a maternity hospital a day after he was born. The applicant, who believed that his son had died at birth, remained unaware that the child had survived until a year and a half later, when he received a claim for removal of his parental authority over the boy in the context of adoption proceedings instituted by third parties, who had taken the boy from a foster home several months previously. Despite the fact that the applicant had formal parental status, and thus full parental authority over the child, his numerous attempts to recover the boy, who continued to live with the third parties in question, proved futile as the latter denied the applicant any access to his son. The applicant’s application for his son’s return to his family was dismissed by the national courts, with reference, in particular, to the fact that the applicant and his wife had abandoned the child at the maternity hospital – conduct which the courts found to be “deliberate” on the part of the applicant’s wife and “negligent” on his part – and to a report on the child’s psychological and psychiatric examination which stated that the boy’s transfer to a new family would cause him psychological trauma. The applicant’s and his family members’ separate application to be granted access to the boy was also rejected, again with reference to the parents’ conduct and to the findings of the same report. THE FACTS 2.     The applicant was born in 1972 and lives in Miramas (France). He was represented by Ms I.   Abramyan, a lawyer practising in Pyatigorsk. 3.     The Government were represented by Mr G.   Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by Mr M.   Galperin, his successor in that office. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The applicant is married to Ms I.Kh. It appears that the latter kept her maiden surname, Kh., after she married the applicant. They are raising their four children together – M.N., born in 1996; T.N., born in 1997; V.N., born in 2005, and Va.N., born in 2007. 6.     At the relevant time the applicant and his family lived in the village of Pyatigorskiy, in the Stavropol Region of Russia. Birth of the applicant’s son V. 7.     On 2 September 2004 the applicant brought his wife, who he believed was approximately six months pregnant, to the Pyatigorsk maternity hospital, as she was showing symptoms of premature labour. It does not appear that prior to that moment, the applicant’s wife’s pregnancy had been monitored by doctors. 8.     Later that day Ms I.Kh. gave birth to a baby boy, V., the third child in her and the applicant’s family at that time. 9 .     As Ms I.Kh. later alleged, doctors of the Pyatigorsk maternity hospital had dissuaded her from having a look at the baby and stated that, having been born long before term, he was very weak and had very poor prospects of survival. Being in a state of shock and distress, the applicant’s wife decided to abandon the baby in the maternity hospital. 10 .     On 3 September 2004 Ms I.Kh. gave her written consent to her newly born son’s adoption ( заявление о согласии на усыновление ). In particular, she filled in and signed a standard form, in which it was stated in print, among other things, that the legal consequences of giving the child up for adoption had been explained to her, and that the consent was voluntary. She also filled in and signed a similar consent form on the applicant’s behalf, having changed her handwriting and imitated his signature. Ms K., the then chief medical officer ( главный врач ) of the Pyatigorsk maternity hospital, certified those forms with her signature and an official stamp. 11 .     On the same day the applicant came to see his wife in the maternity hospital. According to him, the doctors informed him that Ms I.Kh. “had miscarried”. For her part, Ms I.Kh. explained to him that she had given birth prematurely to a baby boy, who had died shortly afterwards. The applicant and Ms I.Kh. then left the hospital. It does not appear that either the applicant or his wife saw the newborn child at any moment. 12.     In reality, the boy survived and remained in the care of the maternity hospital. 13.     On 28 September 2004 a competent authority issued a birth certificate for V., on which the applicant and Ms I.Kh. were indicated respectively as his father and mother. V.’s patronymic, “Zavenovich”, reflected the applicant’s first name, whereas V.’s surname, Kh., corresponded to the maiden surname of his mother, Ms I.Kh. 14.     On 18 October 2004, by virtue of a local authority’s decision, V. was transferred to an infant foster home. V.’s adoption by M r S. and M s Ch. 15.     At some point in July 2005 Mr S. and Ms Ch. visited the foster home, seeking a child for adoption. They saw V. and decided to adopt him. 16 .     By a decision of the Head of the Town Administration of Zh. dated 26 July 2005, Ms   Ch. was appointed V.’s legal guardian. The decision stated, inter alia , that V. had been abandoned by his parents, who, in separate written statements dated 3 September 2004, had each expressed their consent to his potential adoption. 17.     On 27 July 2005 Mr S. and Ms Ch. took V. from the foster home to their home address in the town of Zh. in the Stavropol Region of Russia, where the boy has been living with them ever since. 18 .     On 4 April 2006 the Zh. Town Court examined an application for V.’s adoption lodged by Mr S. and Ms Ch. The court noted that V. had been abandoned by his mother in the Pyatigorsk maternity hospital, that since July 2005 he had been living with Mr S. and Ms Ch., the latter being his legal guardian, that the case file contained written statements by V.’s parents expressing their consent to his adoption, and that a local childcare authority had carried out a relevant check and had given a favourable opinion to V.’s adoption by Mr S. and Ms Ch. The court thus granted them the full adoption of V. and ordered that V.’s surname and patronymic be changed to reflect Mr   S.’s surname and first name respectively. It also ordered that V.’s place of birth be changed to that of Zh. 19.     The judgment was not appealed against and became final on 15   April 2006. The applicant’s attempts to obtain information about V. and further developments 20.     In the meantime, on 10 March 2006 the applicant received a copy of a request by Ms Ch. for him to be deprived of his parental authority over V. in the context of the proceedings for V.’s adoption by Mr S. and Ms Ch. A   copy of the statement allegedly written and signed by him on 3   September 2004 (see paragraph 10 above) was enclosed. In the applicant’s submission, he had never consented either orally or in writing to the relinquishment of his parental authority over V. or to the latter’s adoption and, until that moment, he had remained unaware of the fact that his son was alive. 21.     On 12 March 2006 the applicant arrived at a district court in an attempt to obtain information about V. There he was allegedly told that Ms   Ch. had withdrawn her request. He then found her and Mr S. at their registered home address, and they confirmed that his son V. was alive and stated that they were his legal guardians. According to the applicant, Mr S. and Ms Ch. showed him the boy but strongly opposed all his attempts to establish any contact with V. 22.     By a court decision of 4 April 2006 Mr S. and Ms Ch. were granted the full adoption of V. (see paragraph 18 above). 23.     On 17 May 2006 the applicant requested the Zh. Custody and Guardianship Agency ( отдел опеки и попечительства г.   Ж. ) to have Ms   Ch.’s guardianship over V. revoked and to order V.’s transfer to his family. The Agency refused the request, with reference to the judgment of 4   April 2006. 24.     On 18 May 2006 the applicant complained to the Zh. prosecutor’s office. He stated that he had been unaware that his son was alive and had been placed in a foster home after his birth, and that he had never made any written statements relinquishing his parental authority over the boy or consenting to his adoption. The applicant then described his unsuccessful attempts to recover his son and requested the prosecutor’s office to investigate the forgery of his written statement of 3 September 2004, to lodge an application on his behalf for the reopening of the proceedings for V.’s adoption and for a review of the relevant judgment on account of newly discovered circumstances, and to institute court proceedings on his behalf for restoration of the original information about V.’s parents, date and place of birth in his birth certificate. 25 .     In the context of an inquiry by the Zh. prosecutor’s office at the applicant’s request, an expert handwriting examination was ordered and carried out. In a report of 27 May 2006 the expert confirmed that the statement of 3 September 2004 had been written and signed by a person other than the applicant. 26 .     The relevant material was transferred to the Pyatigorsk Office of the Interior for a further inquiry. The inquiry established that it was the applicant’s wife, Ms I.Kh., who had written the statement of 3 September 2004 instead of him and forged his signature. 27 .     On 30 June 2006 the Pyatigorsk Office of the Interior decided not to institute criminal proceedings against Ms I.Kh. for “forging an official document”, as she had written the document in question immediately after childbirth, and therefore while she had been in a vulnerable state, particularly in view of the doctors’ statement to the effect that the boy had been very weak and would not survive. The decision also stated that the document in question was “a personal statement” rather than an “official document issued by a State body or authority”. Refusal of the application by Mr S. and Ms Ch. for   V.’s adoption and other developments 28.     On 9 June 2006 the Zh. prosecutor’s office applied, on the applicant’s behalf, to the Zh. Town Court with a view to having the proceedings for V.’s adoption by Mr S. and Ms Ch. reopened and the relevant judgment reviewed. 29.     The court proceedings were then reopened and the Zh. Town Court examined anew the application by Mr S. and Ms Ch. for V.’s adoption. 30 .     In a judgment of 12 July 2006 the court rejected their application. It referred to the relevant provisions of national law stating that the biological parents’ formal explicit consent to their child’s adoption was indispensable (see paragraph 150 below). It further noted, with reference to the findings of the inquiry carried out by the competent law-enforcement bodies (see paragraphs 25-27 above), that it was the applicant’s wife who had written the statement of 3 September 2004 instead of the applicant, and that the applicant himself had never given his consent to V.’s adoption by third parties, nor had he ever been deprived of his parental authority or declared legally incapacitated. The court concluded that, in the absence of the applicant’s explicit consent to V.’s adoption by third parties, there were no grounds to grant the application by Mr S. and Ms Ch. 31 .     On the same date the Zh. Town Court issued a special ruling ( частное определение ) in respect of the chief medical officer of the Pyatigorsk maternity hospital, stressing that that official had certified the parents’ consent to V.’s adoption (see paragraph 10 above) in breach of the requirements of Article 129 of the Russian Family Code (see paragraph 150 below). According to the Government, Ms K. was dismissed from the post of chief medical officer of the Pyatigorsk maternity hospital on 16   December 2005 – that is, prior to adoption of the special ruling in question. 32.     Mr S. and Ms Ch. appealed against the judgment of 12 July 2006. They pointed out, in particular, that they had been raising V. in their family since July 2005, that the applicant had come to them in March 2006 in order to see the child as he had doubted that the boy was his son, and that they had informed the applicant at that moment that their application for V.’s adoption was pending before a court. However, before the judgment of 4   April 2006 on V.’s adoption by Mr S. and Ms Ch. had been delivered, the applicant had not made any attempts to join the proceedings, and it was not until 17 May 2006 that he had finally applied to a prosecutor’s office. Mr S. and Ms Ch. further argued that Ms I.Kh. had, in fact, not participated in the proceedings while they had been pending before the first-instance court, having attended only one hearing, a fact that, in their view, was indicative of the absence of her interest in V.’s fate. They also argued that the applicant’s allegation that V. had been born at a gestational age of approximately six months – that is, long before term – and had therefore been very week stood in conflict with an extract from V.’s medical file ( выписка из истории развития ) stating that at birth he had weighed 3.150 kg and measured 50   cm, those being characteristics of a baby born at term. With reference to those discrepancies, Mr S. and Ms Ch. expressed their doubts that the applicant and his wife were V.’s biological parents and stated that the first-instance court could have resolved those discrepancies by examining relevant medical documents from the Pyatigorsk maternity hospital and by ordering a genetic expert examination, but it had failed to do so. 33 .     On 23 August 2006 the Stavropol Regional Court upheld the judgment of 12 July 2006 on appeal, rejecting the arguments of Mr S. and Ms Ch. The court noted, in particular, that the scope of their claim was limited to their application for V.’s adoption, and that they had never challenged before the first-instance court the authenticity of V.’s birth certificate, or the applicant’s paternity. Moreover, Mr S. and Ms. Ch. had not adduced any evidence to corroborate their allegations, or sought the courts’ assistance to that end. Against that background, the Stavropol Regional Court saw no reason to order a genetic expert examination or to question the authenticity of V.’s birth certificate. In its view, there were no grounds to doubt the fact that the applicant and Ms I.Kh. were V.’s biological parents. It considered it proven, with reference to the facts as established by the first-instance court, that the applicant had never relinquished his parental authority over V. The court concluded therefore that there were no legal grounds to grant the application by Mr S. and Ms.   Ch. for V.’s adoption. 34.     According to the applicant, after the court decisions refusing V.’s adoption by Mr S. and Ms Ch. had been given, he applied to the courts in an attempt to get his son back. Mr S. and Ms Ch. refused to return the boy, with reference to the administrative decision of 26 July 2005, by which Ms   Ch. had been appointed V.’s legal guardian and which was still in force (see paragraph 16 above). 35.     The applicant then requested the Zh. Custody and Guardianship Agency to have the decision of 26 July 2005 invalidated. 36.     On 21 September 2006 the head of the municipal administration of Zh., with reference to the decision of the Pyatigorsk Office of the Interior dated 30 June 2006 (see paragraph 27 above) and the judgment of 12 July 2006 (see paragraph 30 above), invalidated the decision of 26 July 2005 and revoked Ms Ch.’s guardianship in respect of V. Ms Ch. challenged that decision before the courts. On 23 March and 25 May 2007 respectively the courts at two levels of jurisdiction upheld the administrative decision of 21   September 2006. 37.     On 3 October 2006 a civil registration authority issued a fresh birth certificate for V. The applicant and Ms I.Kh. were indicated respectively as his father and mother. V.’s patronymic corresponded to the applicant’s first name, and V.’s surname reflected his mother’s maiden surname. At some point in 2008 Ms Ch. applied to a court to have V.’s birth certificate altered by excluding the entry concerning his father, the applicant, and by replacing his patronymic with another one. On 24 April 2008 the Pyatigorsk Town Court declined to examine Ms Ch.’s application, stating that she was neither V.’s parent nor his legal guardian, and therefore had no standing to lodge such applications. 38 .     In the meantime, on 13 October 2006 Ms I.Kh. sent a written statement to the Zh. Custody and Guardianship Agency, in which, with reference to Article 129 of the Russian Family Code (see paragraph 150 below), she revoked the consent to V.’s adoption which she had given on 3   September 2004. The Agency received the letter on 17 October 2006, but it does not appear that any reply was given to Ms I.Kh. 39.     According to the applicant, he made numerous attempts to recover his son, but Mr S. and Ms Ch. refused to return V. and denied him and his wife contact with the boy. Proceedings for removal of the applicant’s and Ms   I.Kh.’s parental authority over V. 40.     In December 2006 Ms Ch. brought a civil claim against the applicant and Ms I.Kh., seeking to have them deprived of their parental authority in respect of V. She argued, in particular, that the applicant and Ms I.Kh. had neglected their parental duties in respect of V., had never enquired about his life, had never participated in his upbringing and education, and had never supported him financially. She also contended that Ms I.Kh. had never intended to take care of the boy, as she had given him up in the Pyatigorsk maternity hospital immediately after his birth and, moreover, had attempted to get rid of her unborn baby. In respect of the latter assertion, Ms Ch. referred to an extract from V.’s medical chart, which allegedly stated that Ms   I.Kh. had made an attempt to abort her pregnancy in its thirtieth week. Proceedings before the first-instance court 41.     On 7 February 2007 the Predgorny District Court of the Stavropol Region (“the Predgorny District Court”) examined Ms Ch.’s claim. The court heard Ms Ch., Ms I.Kh., the applicant and a number of witnesses. Ms Ch.’s statements 42.     At the hearing Ms Ch. reiterated her arguments. She also stated that she had visited a foster home upon an invitation from her neighbour, who worked there, and she had seen the then ten-months-old V., whom she had liked and immediately decided to adopt. 43.     Ms Ch. further stated that in the foster home she had received an extract from V.’s medical file, which stated that at birth he had weighed 3.150   kg and had measured 50 cm, his head circumference had been 36 cm and he had been given an Apgar score of 7-8. It also stated that during pregnancy he had suffered from chronic hypoxia and fetoplacental insufficiency. The staff of the foster home had furthermore informed Ms   Ch. about V.’s biological parents, indicating their full names. 44.     Ms Ch. further alleged that she had not met V.’s parents prior to March 2006, when the applicant had been summoned to a court in the context of the proceedings instituted by her and Mr S. for V.’s adoption. The applicant had then visited them at their home address and had stated that on 2 September 2004 he had taken his wife to the maternity hospital and that he had been unaware that the baby had survived. Mr S. and Ms Ch. had shown the applicant the statements of 3   September 2004 in which Ms   I.Kh. and the applicant himself had consented to V.’s adoption; the applicant had recognised his wife’s signature but stated that his signature had been forged. He had also asked to be shown photographs of V. and had stated that the boy resembled his elder son T.N. He had then been given the photographs and left. 45.     Ms Ch. went on to state that on his next visit, the applicant had come with his sister, his elder son and his father. Mr S. and Ms Ch. had invited them to come in. They had looked at V. and the applicant’s sister had filmed him with her mobile telephone camera. When they left, they had offered him yogurt and a teddy bear. Ms Ch. had refused, stating that V. was allergic to yogurt and that he already had two teddy bears. In Ms Ch.’s opinion, the applicant and his family members had come to find out who the child looked like. 46.     Ms Ch. insisted that during his first visit the applicant had not recognised V. as his son, and that he had been thinking for two months before taking any action. 47.     Ms Ch. confirmed that the boy had continued to live with her and Mr   S. According to her, on 21 September 2006, when her guardianship in respect of V. had been revoked, the applicant had come to her home address while she and V. were away in another town, and had threatened “to handcuff” Mr S. for deliberate retention of his son. In Ms Ch.’s submission, the applicant had also visited their home address with an official of a custody and guardianship agency, and they had threatened Ms Ch.’s mother ‑ in-law. Ms I.Kh.’s statements 48 .     Ms I.Kh. disagreed with Ms Ch.’s claim and contested her allegations. She stated, in particular, that so far she had had no opportunity to see her son V. and to bring him up. She insisted that she had given her written consent to V.’s adoption without understanding the meaning of her actions at that moment, and that she would now like to have her son returned to her, but Ms   Ch. had kept retaining him. 49.     As to the events of 2-3 September 2004, the applicant’s wife explained that by the time she had become pregnant with V., she had already had two children, and that none of her pregnancies, including that with V., had ever been monitored by doctors. She had not had any problems with her pregnancy with V. and had never attempted to abort it. She had found out for the first time during the present proceedings that there was allegedly a note in V.’s medical records stating that she had made such an attempt. 50.     Ms I.Kh. further submitted that, according to her estimation, she had been six months pregnant when on 2 September 2004, while working in her garden, she had felt pain in the lower abdomen and contractions and had started bleeding. Her husband had then taken her to the Pyatigorsk maternity hospital. According to Ms I.Kh., she had been admitted to the hospital at around 3-4 p.m. She had then been assisted by doctors, in particular by Dr   B. (see paragraphs 57-62 below), who had been in charge of her. The doctors had administered her intravenous and intrauterine injections and drips. As was apparent, anaesthesia had been used, as she had been sleeping during the labour, and therefore could not remember at exactly what time her baby had been born, though she had been awake at the moment of delivery. When the baby had been born, Ms I.Kh. had not heard him crying. She had been told that it was a boy and that he was hardly breathing and was not crying. Ms   I.Kh. had worried about the baby’s health. Dr B. had told her that the birth had been premature, that the baby had been pre-term and would not survive, and that, in fact, Ms I.Kh. had had “a miscarriage rather than childbirth”. According to the applicant’s wife, the medical staff had not told her the baby’s weight or height and had not even shown her the boy, stating that he had been placed in an incubator. In reply to her request to be allowed to see the baby, Dr B. had replied that “there [had been] nothing to look at”, and that the baby had been premature and was weak. Instead, Ms I.Kh. had been asked to fill in papers for the baby’s adoption. According to the applicant’s wife, the birth had taken place during the night-time; she had been feeling very weak because of a loss of blood, and had felt dizzy and faint. 51 .     Ms I.Kh. went on to state that the next morning, at 8 a.m., Dr B. had invited her to her office and had stated that the baby was still breathing but most likely would not survive, and that there was “one chance in a thousand” that he would live. She had then invited Ms I.Kh. to sign certain documents, indicating her height, education, profession and occupation. Dr   B. had stated that this was necessary for any further checks of the documents. According to Ms I.Kh., she had written something, but had not realised at that moment exactly what she had written, as she had been feeling very weak, dizzy and faint. She had informed Dr B. that she was married, and Dr B. had then invited her to write a similar statement on her husband’s behalf, changing her handwriting. Ms I.Kh. had written the statement and signed it without understanding the meaning of her actions. She had then taken a rest in her hospital ward until 9 or 10 a.m. and then called her husband on his mobile telephone. Her husband had asked her about the baby and she had replied that it had been a boy and that she had lost him because of a miscarriage. Ms I.Kh. stated that she had chosen to say this to her husband because the doctors had said that the boy would not survive, and since she had wished to spare her husband because of his heart condition. When she had left the maternity hospital, she had known that the baby was alive, but had thought that he was very weak and hardly able to breathe. 52.     The applicant’s wife also stated that when in March 2006 she and the applicant had received a claim for removal of their parental authority in respect of V., they had been very surprised and had initially thought that there had been a misunderstanding, as in September 2005 she and the applicant had had another son, whose first name was also V. The applicant enquired at the court and then visited Dr B., who had said to him that it must be his and Ms   I.Kh.’s son who had survived after “the miscarriage”. Thereafter, the applicant had visited Ms Ch., who had told him about V. and had given him a photograph of the child. According to Ms I.Kh., when she had seen the photograph of V., who resembled her elder son T.N. a lot, she had realised what a mistake she had made and had disclosed the truth to the applicant. The latter had “nearly fainted”. From that moment onwards the applicant had become actively involved in the proceedings concerning V.’s fate, whereas she herself could not participate as her younger son had been admitted to an intensive care unit and she had remained with him. 53 .     Ms I.Kh. added that in her written statement of 13 October 2006 she had revoked her consent to V.’s adoption (see paragraph 38 above) but she had never received any reply from the competent custody and guardianship agency. Ms I.Kh. insisted that she wanted to take V. back to her and the applicant’s family and bring him up. The applicant’s statements 54 .     The applicant disagreed with Ms Ch.’s claim and stated that V. was his and his wife’s third child and they had wanted to have him. The whole family had known about Ms I.Kh.’s pregnancy. She had never been seen by doctors in connection with any of her pregnancies. He and his wife had estimated that she had been five and a half or six months pregnant when she had felt ill and he had accompanied her to the Pyatigorsk maternity hospital. He had then left the maternity hospital. The next day his wife had called him and had asked him to take her home, stating that she had lost the baby and that it had been a boy. At the maternity hospital the doctors told him that his wife had had a miscarriage. At home the whole family had mourned the loss of the baby. 55 .     The applicant further stated that in March 2006 he had found out from documents received from a court that his son was alive. His wife had then told him that she had not wished to traumatise him, and therefore had told him that the baby had died, having been persuaded that this was the case as the doctors had told her so. 56.     The applicant added that he had no doubts regarding his paternity and insisted on V.’s return to his and Ms I.Kh.’s family. Dr B.’s statements 57 .     Dr B. stated that she was the head of the observation unit of the Pyatigorsk maternity hospital. There were usually approximately 3,000   childbirths per year, and therefore she was unable to remember any of her patients. Dr B. further stated that she had not met Ms I.Kh. before, but added that it was likely that she simply did not remember her. She furthermore could not recall whether she had attended Ms I.Kh.’s childbirth. She could have recalled everything if the medical record of Ms I.Kh.’s labour and delivery ( медицинская карта родов ) had been preserved, but that file had been lost in 2005. 58 .     She further stated that she could not confirm any of the statements Ms   I.Kh. had made before the court, as she did not remember anything. In particular, Dr B. insisted that she did not remember whether she had ever obtained Ms I.Kh.’s consent to her baby’s adoption, or any other documents from her. According to Dr B., she had no right or need to decide with patients on questions concerning the relinquishment of their parental authority or the adoption of their newborn babies. Any such statements could only be given to the chief medical officer of the hospital, who was entitled to certify their authenticity. 59.     Dr B. also denied giving Ms I.Kh. any information about her baby’s state of health. She insisted that she never gave any such information, as it fell to a paediatrician to give information on newly born babies’ health. Dr   B. did not rule out that Ms I.Kh. could mistakenly have believed that her son was dead. 60.     As for the information regarding Ms I.Kh.’s alleged abortion attempt, Dr B. noted that, in principle, such information could have been copied to the child’s medical file from the mother’s medical file, or could have been inserted there after a conversation with Ms I.Kh. 61 .     Dr B. also stated that after childbirth a new mother remained in a state of stress for up to forty-two days and could even have short-term amnesia. In Dr B.’s opinion, by virtue of her condition after childbirth, Ms   I.Kh. might not remember something or might remember only certain details. She added that a mother’s state of stress after childbirth could go unnoticed by others, and therefore it was not unlikely that Ms I.Kh.’s written statement had been accepted from her despite her condition. 62 .     Dr B. further stated that she had asked the chief medical officer of the hospital to give her the medical record of Ms I.Kh.’s labour and delivery, and that the official had told her that the file had been lost. She confirmed that initially she had avoided appearing in court since Mr S. and Ms Ch. had been putting pressure on her in an attempt to make her testify in their favour, and more precisely to make her state that Ms I.Kh. had deliberately abandoned her baby. Examination of documentary evidence 63.     The Predgorny District Court also examined documentary evidence. It observed, in particular, the documents submitted by the Pyatigorsk maternity hospital, which included V.’s personal file ( анкета ребенка ) drawn up at the hospital, a medical report attesting to the state of his health after birth, and written statements of 3 September 2004 containing V.’s parents’ consent to his adoption. 64 .     The court observed that, according to the boy’s personal file, Mr V. Vasilyevich Kh. – the boy’s surname corresponded to Ms I.Kh.’s surname, whereas his patronymic was “Vasilyevich” rather than “Zavenovich”, which would have reflected the applicant’s first name – had been born on 2   September 2004, weighing 3.150 kg and measuring 54 cm. The medical report referred to foetal hypoxia and a slight cerebral circulation disorder. The file contained information about the baby’s mother, including her address, whereas information about his father was missing. The file cited “written consent to adoption” as the ground for the baby’s adoption. 65 .     The court further noted a number of defects in the file. It stated, in particular, that the file contained no information about the person who had filled it in; that information about the baby’s father was missing; that the baby’s patronymic was erroneously indicated as “Vasilyevich” whereas it should have been “Zavenovich” (which would correspond to the applicant’s first name); that the file did not indicate which of the parents had filed a statement of “consent to adoption” and when; that the file did not indicate who had certified that statement; that the file did not indicate the date on which the statement had been filled in or its number; that the file contained no information about V.’s birth certificate, its serial number, or date of issue; and that no photograph of the baby was enclosed in the file. 66.     As for the medical report, the court noted that it also erroneously indicated “Vasilyevich” rather than “Zavenovich” as V.’s patronymic, that it did not mention the official position of the member of the medical commission who had drawn it up and that the official stamp was missing. 67.     The court also noted that both written statements of 3 September 2004 had been certified by the then chief medical officer of the Pyatigorsk maternity hospital, Ms K. 68.     It went on to note that it had not received any other documents from the Pyatigorsk maternity hospital, as, according to a letter from the chief medical officer of the Pyatigorsk maternity hospital dated 8 December 2006, “the original of the medical record of labour and delivery for Ms   I.Kh., who on 2 September 2004 gave birth to a live boy ..., was lost in 2005.” 69 .     The court then stated that, since the original of the medical record of Ms I.Kh.’s labour and delivery had been lost, it was impossible to establish the source of the document submitted by the claimant, Ms Ch. – the extract from V.’s medical file stating that Ms I.Kh. had made an attempt to abort her pregnancy in its thirtieth week – an allegation categorically denied by Ms   I.Kh. The court therefore found that piece of evidence to be inadmissible. Judgment 70 .     In its judgment of 7 February 2007, the Predgorny District Court noted that it was undisputed by the parties, and found it established, that the applicant and Ms I.Kh. were V.’s biological parents. 71 .     It further noted that the judgment of 12 July 2006, as upheld on 23   August 2006, by which the claim of Mr S. and Ms Ch. regarding V.’s adoption had been rejected (see paragraphs 30 and 33 above), had established that the applicant had never given his consent to V.’s adoption; this fact was thus res judicata and did not need to be proved once again. 72 .     The Predgorny District Court therefore found it established that the applicant had not neglected his parental duties with regard to his son V., since he had simply not known that his son had been born alive. The court went on to note that as soon as the applicant had found out that his son was alive, he had started taking steps with a view to returning the child to his family. 73 .     The court further noted with regard to Ms I.Kh. that “she did not dispute the fact that, being in a fragile condition and having been misled by the medical personnel of the Pyatigorsk maternity hospital as to the state of her newborn son’s health, she had written a statement in which she had expressed her consent to her son’s adoption”. At the same time, the court took into consideration the fact that after childbirth Ms I.Kh. had been in a fragile condition, that on 13 October 2006 she had retracted her statement and that, as matters now stood, she intended to take the child into her family and to bring him up. The court noted that Ms I.Kh.’s fragile condition after childbirth had “indirectly” been confirmed by Dr B.’s statement to the effect that a new mother could remain in a state of stress for a period of up to forty-two days after childbirth and that this state could remain unnoticed by others (see paragraph 61 above). 74 .     The court went on to note that deprivation of parental authority was a measure of last resort and that it could only be applied to parents flagrantly neglecting their parental duties. The court further considered that no such guilty conduct on the part of the applicant or Ms I.Kh. had been established. It further noted that the circumstances giving rise to V.’s transfer to a foster home and then to the family of Mr S. and Ms Ch. for adoption had changed, as his biological parents had found out that the boy was alive and they wished to bring him up themselves, which meant that they had priority over any other person. 75.     In so far as the representatives of the two custody and guardianship agencies argued that depriving the applicant and Ms I.Kh. of their parental authority would be in the child’s best interests, the court noted that the law not only protected the interests of the child but those of the parents as well. The court also considered that the positive references given to Mr S. and Ms   Ch., their caring attitude towards V., their contribution to the improvement of his health and his successful development, their attachment to the child, whom they loved and perceived as their own, and the child’s attachment to them, should not be set against the interests and rights of the biological parents as protected by law. 76 .     The court further observed that the applicant and his wife had positive references and good living conditions, could financially support their child, wished to bring him up and were insistent on his return to their family. It thus concluded that there were no grounds to grant Ms Ch.’s claim and rejected it. Special ruling 77 .     On 7 February 2007 the Predgorny District Court issued a special ruling in respect of the Head of the Pyatigorsk Health Department. It criticised the shortcomings surrounding the way in which Ms I.Kh.’s consent to her son’s adoption had been obtained, the defects in V.’s personal file and the fact that the medical record of Ms   I.Kh.’s labour and delivery had been lost. Proceedings before the appellate court 78.     On 21 March 2007 the Stavropol Regional Court quashed the first-instance judgment on appeal and sent the case for a fresh examination. 79.     The Stavropol Regional Court held that the first-instance court’s conclusions had been based on assumptions and speculations and that the evidence to which the court had referred had been unreliable. In particular, the first-instance court’s conclusion that Ms I.Kh. had been misled by the medical personnel of the Pyatigorsk maternity hospital regarding the state of her baby’s health had not been supported by evidence. The Regional Court also stated that neither Ms I.Kh. nor the applicant had taken any steps to ascertain the circumstances of the birth, to apprise themselves of the state of their newborn son’s health, and to offer help and support to their baby, having left him in danger several hours after his birth. In the court’s view, with the necessary degree of care, the parents could and should have found out that their baby was alive, and that he had been born at term with a good weight and only slight health problems. 80.     The Stavropol Regional Court went on to note that the first-instance court had failed to establish what the reasons had been for the applicant’s refusal to take the baby from the maternity hospital, and how it was possible that, being the father of three children, the applicant had mistakenly believed in the unfortunate outcome of the birth to such an extent that he had taken no actions with a view to apprising himself of his newborn son’s fate. The Stavropol Regional Court thus concluded that the applicant’s statement to the effect that he had been unaware that his son was alive had not been corroborated by any evidence and that therefore V.’s transfer to his biological parents was not in the child’s interests. Supervisory review proceedings 81 .     On 28 May 2007 the Presidium of the Stavropol Regional Court (“the Presidium”) quashed the decision of 21 March 2007 by way of supervisory review, noting that the appellate court’s findings in that decision did not correspond to the circumstances of the case. In particular, the Presidium referred to the results of the inquiry carried out by the Zh. prosecutor’s office (see paragraphs 25-27 above) and the court decisions of 12 July and 23 August 2006 (see paragraphs 30 and 33 above) and stressed that, contrary to the relevant findings of the appellate court, it had been clearly established that the applicant had not been aware of the fact that his son had been born alive, that he had never given his consent to his adoption, and that as soon as he had found out that V. was alive, the applicant had started taking steps with a view to returning the boy to his family. In connection with the latter aspect, the Presidium referred to the applicant’s numerous applications to courts and administrative bodies. 82 .     It also noted that on 13   October 2006 Ms I.Kh. had revoked her consent to V.’s adoption and had officially informed the relevant custody and guardianship agency to that effect. The court stated that under