CEDH · CASELAW;CLIN;ENG — 6 juillet 2021

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Russia - 47220/19 Judgment 6.7.2021 [Section III] Article 8 Article 8-1 Respect for family life Restriction of applicant’s parental rights and deprivation of contact with her children without required scrutiny on gender identity grounds: violation Article 14 Discrimination Restriction of applicant’s parental rights and deprivation of contact with her children without required scrutiny on gender identity grounds: violation Facts – The applicant is a transgender woman who went through medical and legal gender transition (male-to-female). She was married and has two children who were born before her transition. The children’s mother, following the dissolution of their marriage, successfully brought judicial proceedings restricting the applicant’s parental rights and depriving her of all contact with the children. The applicant’s appeal and cassation appeals were dismissed. The applicant has not been able to have any information about the children or their whereabouts. Law – Article 35 § 3 (a): In cases arising out of disputes between parents such as the instant one, it was the parent entitled to custody who was entrusted with safeguarding the child’s interests. In these situations, the position as natural parent could not be regarded as a sufficient basis to bring an application on behalf of a child. Consequently, having regard to its case-law on the matter and the specific circumstances of the present case, the Court dismissed the application in so far as it had been lodged by the applicant on behalf her children. Article 8: It was undisputed that the domestic courts had restricted the applicant’s parental rights and deprived her of contact with her children on account of her gender transitioning and the allegedly negative effect that communication with them and information on her transitioning might have had on the children’s psychological health and development. Although it was not the Court’s task to take the place of the domestic authorities in examining these questions, it had to satisfy itself that the domestic courts, when taking their decision, had conducted an in‑depth examination of the entire family situation and a whole series of other relevant factors and that they had made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child. In the present case, it found that this had not been so and accordingly, that the restriction of the applicant’s parental rights and of her contact with her children was not “necessary in a democratic society”. In reaching this conclusion, the Court took into account the following factors: The domestic courts had attached significant weight to the psychiatric expert assessments of the applicant and her children which had concluded, taking into account the results of the children’s psychological testing, their age, and the lack of psychotherapeutic practice in redressing the negative psychological consequences for children of transgender parents, that information about the applicant’s transition would have had a negative effect on the children’s psychological health. However, the Court expressed concern that the experts had reached their unfavourable conclusion after explicitly acknowledging that there had been no reliable scientific research on transgender parenthood. All the expert reports had also lacked any indication of how the information about the applicant’s gender transition represented a risk to her children’s psychological health and development or any indication of how that risk could have been mitigated. The available international material was unanimous that domestic courts deciding on the restriction of parental rights and contact should aim to (1) keep children together with their parents and, in the event of their separation, maintain direct contact between them on a regular basis, (2) take the child’s best interests as a primary consideration, and (3)   assess the entire family situation through close and individualised scrutiny. The third parties’ submissions had also supported these principles highlighting in particular the need to avoid reliance on negative perceptions and prejudice about transgender parenthood. In the present case, however, the domestic courts’ judgments had fallen short of the above requirements. More specifically, although they had taken into account into account the mother’s opinion, her fears of the possible negative effect of the applicant’s gender transition on the children, the conflicts between the parents, and the findings of social services, they had relied predominantly on the experts’ findings without closely scrutinising them in the specific circumstances of the entire family situation. This had been despite the self-acknowledged lack of scientific research supporting the experts’ conclusions and the apparent lack of an explanation as to how the applicant’s contact with her children could have negatively affect their psychological health. While the findings of expert assessments would in any comparable situation be of relevance and significance to judicial decision‑making, the courts should not forgo scrutiny of the reliability and quality of such findings. It was well established that measures totally depriving an applicant of his or her family life with the child were inconsistent with the aim of reuniting them and should “only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child’s best interests”. The domestic courts, however, in the present case had applied the most restrictive measure possible and had completely deprived the applicant of any contact with her children. Given that the passage of time could have irremediable consequences for relations between the child and the parent with whom that child did not live they should have been exceptionally cautious in resorting to that measure. As the domestic courts had failed to demonstrate that there had been an appropriate basis for the restriction, it was not appropriate for the Court to contemplate on the existence of less restrictive means or to endorse any of the measures and practices put forward by the third parties in their submissions. Further, in the absence of any demonstrably harmful effect of contact between the applicant with her children, it was not necessary either to speculate as to whether a particular restriction might have been appropriate if such potential or real harm had been established or to consider whether the possibility of reviewing the restriction, as mentioned by the domestic courts, provided an effective avenue for re-establishing contact between the applicant and her children or for ensuring the children’s gradual adjustment to their changing family situation. Conclusion : violation (unanimously). Article 14 in conjunction with Article 8: It was clear from the domestic decisions and the judicial proceedings that the influence of the applicant’s gender identity on the assessment of her claim had been a decisive factor leading to the decision to restrict her contact with her children. The applicant had therefore been treated differently from other parents who also sought contact with their estranged children, but whose gender identity matched their sex assigned at birth. Further, the domestic courts had not conducted their assessment in accordance with the established domestic practice reflected in the Supreme Court’s interpretative guidelines and, hence with the required scrutiny. Notably, they had not examined the possible danger to the children, the nature and severity of the restriction of the applicant’s parental rights, the consequences it might have had for the children’s health and development, or any other relevant circumstances. Their decisions had been based on the alleged possible negative effect of the applicant’s gender transition on her children. Yet, the reasons and the evidence put forward by the authorities in support of their position could not be regarded as convincing and sufficient to prove the existence of any possible harm to the children’s development and to justify the restriction. Accordingly, the domestic courts, by relying on her gender transition, had singled her out on the ground of her status as transgender person and had made a distinction which had not been warranted in the light of the existing Convention standards. Although there was no reason to doubt that the domestic authorities had pursued a legitimate aim of the protection of the rights of children in these proceedings, in the absence of any demonstrably convincing and sufficient reasons for the difference in treatment, it was impossible to conclude that a reasonable relationship of proportionality existed between the means employed and the aim pursued. Consequently, the impugned decision amounted to discrimination. Conclusion : violation (unanimously). Article 41: EUR 9,800 in respect of non-pecuniary damage. (See also Salgueiro da Silva Mouta v. Portugal , 33290/96, 21 December 1999, Legal Summary ; E.B. v. France [GC], 43546/02, 22 January 2008, Legal Summary ; S.H. v. Italy , 52557/14, 13 October 2015, Legal Summary ; Strand Lobben and Others v. Norway [GC], 37283/13, 10 September 2019, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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