CEDH · CASELAW;CLIN;ENG — 30 juin 2020

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Russia - 70879/11 Judgment 30.6.2020 [Section III] Article 8 Article 8-1 Respect for family life Natural father divested of parental rights due to voluntary and prolonged separation from child who was well integrated into mother’s new family from an early age: no violation Facts – In 2003 the applicant divorced the mother of his child when the child was two years of age. In 2005 his former wife remarried and lives with her new husband and the child, as well as a further child the new couple had together. The applicant’s last contact with his child was in 2004. There was no obstacle to contact. In 2011 the applicant’s former wife began proceedings to divest him of his parental rights. The applicant countered with a request for contact with the child. The courts found in favour of the mother and the applicant lost his parental rights. In 2012 the child was adopted by his step-father. Law – Article 8: Depriving a person of his or her parental rights was a particularly far-reaching measure which deprived a parent of his or her family life with the child, and was inconsistent with the aim of reuniting them. On the other hand, the existing family ties between the spouses and the children they actually cared for warranted protection under the Convention. Moreover, if a considerable period of time had passed since the child had lived with one of his or her natural parents, the interest of the child not to have his or her de facto family situation changed again might override the interest of the parent to re-establish family life with his/her child. Although the child had spent the first two years of his life with the applicant, by the time the decision to deprive the applicant of his parental authority had been taken, he had not lived with the child for eight years and had had no contact with him for seven of those years. Throughout that period, the applicant had made no attempt to have access to his son and to resume contact with him. The Court did not find any of the applicant’s explanations convincing in that respect. On the assumption that the applicant had willingly withdrawn from his child’s life to let the child adapt to his mother’s new husband, it was unclear why that “adaptation” period needed to last for seven years. In the Court’s view, the applicant could and should have realised that such a long and complete separation from his son – in particular given the latter’s young age at the time contact had been broken – could only have, as a consequence, a significant weakening, if not a complete rupture, of the bond between them, leading to the child’s estrangement from him. Indeed, it was established in the domestic proceedings that, although the applicant’s son had been aware of the existence of his biological father, he had neither remembered him nor wanted to have contact with him. When they met, the child had not recognised the applicant and had felt scared when told that the applicant was his father. Furthermore, on the assumption that the child’s mother had opposed contact with the applicant, the Court found it surprising that, as noted by the domestic courts, the applicant had never sought assistance from the childcare authorities or domestic courts in that respect. In the present case, it was the applicant’s own inaction that had led to the severance of ties between him and his child, and thus seemed to have prompted the outcome of the case against him. The removal of the applicant’s parental authority had done no more than cancel the legal link between the applicant and his child. Given the absence of any personal relationship for a period of seven years prior to that decision, it could not be said to have adversely affected those relations. The court decisions furthermore had made it clear that the child had been well integrated in his family and deeply attached to his mother, his half-brother and his mother’s new husband (his step-father), with whom he had had a de facto family life for seven years. It was also relevant that his step-father had fully assumed the father’s role and intended to adopt him; and that the boy had consistently expressed his wish to be adopted by him. With that in mind, the national authorities had been faced with a difficult task of striking a fair balance between the competing interests – those of the applicant, his son, his mother and his de facto family members – in a complex case. In particular, they had been called upon to decide whether it had been in the boy’s best interests to set in motion his bonding with the applicant – his natural father – contact with whom had been lost for the previous seven years, or rather to strengthen the existing ties between the boy and the family in which he had been living during that period. The domestic courts had imposed on the applicant an obligation to pay a monthly amount in child support, starting from the date of the judgment until his son reached the age of majority, notwithstanding the fact that the applicant would no longer have parental authority over the child. This did not, however, mean that there had been no relevant and sufficient reasons for the decision to deprive the applicant of his parental authority. Indeed, that decision had not changed the fact that the applicant had continued to be the child’s parent and thus to bear parental responsibility for him; moreover, he had not paid any child support for many years. In any event, the obligation to pay child maintenance had come to an end once the boy had been adopted by his step-father. As regards the decision-making process, the decision in question had been reached following adversarial proceedings in which the applicant had been placed in a position enabling him to put forward all arguments in support of his position and to submit written and oral evidence. In their decisions the courts had provided extensive reasons for their findings and addressed the arguments raised by him. A number of witnesses, including those who had supported the applicant’s claim, had been heard, and a psychologist’s assessment of the child’s relationship with his parents had been obtained. The applicant had complained that the assessment in issue had been carried out in his absence and that the child had not been heard in court. However, there was no evidence that the applicant had ever sought to raise those questions before the courts at two levels of jurisdiction and to challenge the findings of the report and to seek another expert examination of the child. Overall, the Court was satisfied that the domestic decision-making process had been fair and had provided the applicant with the requisite protection of his rights. In sum, the domestic courts had carried out a detailed and carefully balanced assessment of the entire situation and the needs of the child, in the light of the adduced evidence. They had thoroughly considered the pertinent facts and given due consideration to the child’s best interests. Taking into account the fact that the domestic courts had had the benefit of contact with all those concerned, they had provided “relevant and sufficient” reasons for their decisions, which fell within their margin of appreciation. Conclusion : no violation (five votes to two)   © 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