CEDH · CASELAW;CLIN;ENG — 23 octobre 2018

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Russia - 23608/16 Judgment 23.10.2018 [Section III] Article 8 Article 8-1 Respect for family life Insufficient examination of father’s case in child care proceedings: violation Facts – The second applicant was born in 2012 and until 2013 lived with his mother and his father, the first applicant, in St Petersburg. In 2013 the child’s parents separated and his mother took him to live in Nizhniy Novgorod. In 2014 the domestic authorities granted a divorce and the mother’s application for a residence order. Law – Article 8 (a)     Admissibility – The Government had not contested that the first applicant had standing to lodge an application on behalf of his minor son. Given that the first applicant had parental responsibility in respect of the second applicant, the Court held that he had standing to act on his son’s behalf. (b)     Merits – The decision to make a residence order in favour of the mother constituted an interference which had a basis in domestic law and pursued the legitimate aim of protecting the rights of others. As regards the necessity of the interference, the national authorities had had no other choice but to make a residence order in favour of one of the two separated parents, as the domestic law did not provide for the possibility for making a shared residence order. No expert opinion had ever been sought on important questions such as the child’s relationship with each of his parents, each parent’s parenting abilities or whether it was possible, given his age and maturity, to interview him in court, if need be with the assistance of a specialist in child psychology. The opinions given by the childcare authorities could not have replaced an expert assessment in the circumstances of the applicants’ case. There was no evidence that the specialists of the Nizhniy Novgorod childcare authorities, on whose opinion the courts had relied, had ever met the child and assessed his attitude to each parent. Indeed, their report had been limited to assessing his mother’s living conditions and financial situation and to stating that she was on parental leave and breastfeeding. An opinion by the St Petersburg childcare authorities found that it was in the child’s best interests to live with his father. The domestic courts had not explained why they had preferred the opinion of the Nizhniy Novgorod childcare authorities to that of those of St Petersburg. The domestic courts had refused to examine the father’s application for a residence order in his favour and to admit in evidence and examine the child’s medical records from which it was apparent that breastfeeding had stopped. The appeal court had not replied to the father’s argument, supported by documentary evidence, that the mother was no longer on parental leave and had resumed work. Furthermore, the domestic courts had rejected the father’s arguments – supported by the St Petersburg childcare authorities – relating to better living conditions and better opportunities for child development in St Petersburg, without an assessment on the merits as irrelevant. The domestic courts’ examination of the case had not been sufficiently thorough. It followed that the decision-making process had been deficient and had not therefore allowed the best interests of the child to be established. By not adhering to the principles of proportionality and effectiveness, the authorities had not fulfilled their duty to secure the practical and effective protection of the applicants’ rights as was required by Articles   1 and 8 of the Convention. The domestic authorities had not adduced relevant and sufficient reasons for their decision to make a residence order in favour of the child’s mother. Notwithstanding the domestic authorities’ margin of appreciation, the interference had not been proportionate to the legitimate aim pursued. Conclusion : violation (four votes to three). Article 41: EUR 12,500 jointly in respect of non-pecuniary damage. The Court held, unanimously, that there had been no violation of Article   14. The residence order had not been based on a general assumption in favour of mothers and no difference of treatment on account of sex had existed either in the law or in the decisions applying it. The Court also held, unanimously, that the respondent State had not failed to comply with its obligations under Articles   34 and 38 of the Convention. (See also Sahin v. Germany [GC], 30943/96, 8   July 2003, Information Note 55 ; and Sommerfeld v.   Germany [GC], 31871/96, 8   July 2003, Information Note   55 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes