The non-exhaustive judicial inquiry into the custody of the child has violated the right of the father and the child to family life.

JUDGMENT

Petrov and X v. Russia 23.10.2018 (no. 23608/16)

see here

SUMMARY

Child custody. Unreasonable and sufficient reasons that establish the custody of the child, and not to the father. No expert opinion was sought, nor was the father’s request examined, nor were the medical documents taken into account as evidence. The ECtHR held that the examination of the case by the national courts was not sufficiently comprehensive and therefore violated the right to family life of father and child. However, there was no difference in treatment of the father because of his gender, since the domestic decision was not based on a more general framework of favoring mothers.

PROVISIONS

Article 8

Article 14

PRINCIPAL FACTS

The applicants, Daniil Petrov and X, father and son, are Russian nationals who were born in 1975 and
2012. Mr Petrov lives in St Petersburg, while his son lives in in the Moscow Region.

The case concerned Mr Petrov’s legal efforts to have his son live with him.

Mr Petrov’s wife left him in April 2013, taking their son with her to live in Nizhniy Novgorod, 1,000
km away. She then instituted divorce proceedings in court and applied for a residence order for their
son. The courts granted the divorce and her application for the residence order in April 2014. They
relied on a report by the Nizhniy Novgorod childcare authorities finding that it was better for X,
given his young age, to live with his mother. The childcare authorities also assessed the mother’s
living conditions and financial situation, which they considered good, and took into account that she
was on parental leave and still breastfeeding.

Mr Petrov appealed, arguing that St Petersburg had better living conditions and opportunities for
child development. He also submitted that there were documents to prove that his former wife was
no longer breastfeeding and that she was no longer on parental leave, but had resumed work.
However, the courts upheld the April 2014 judgment.

In those proceedings the domestic courts refused to examine Mr Petrov’s application for a residence
order in respect of his son, finding that his claim had been submitted too late.

In separate proceedings, Mr Petrov was subsequently granted contact rights and awarded
compensation for the excessive length of the residence and contact proceedings.

Relying on Article 8 (right to respect for family life), the applicants complained that the courts had
not provided relevant and sufficient reasons for their decision to grant the residence order in
respect of X to the mother. Further relying on Article 14 (prohibition of discrimination) taken in
conjunction with Article 8, they also complained that the decision had amounted to discrimination
on grounds of sex, alleging that residence orders for children under 10 had often gone in the favour
of mothers.

Lastly, the applicants submitted under Article 34 (right of individual petition) and Article 38
(obligation to provide necessary facilities for the examination of the case) that the Representative of
the Government to the European Court of Human Rights in their case had been biased and had
concealed certain documents because he had been a close acquaintance of the father of Mr Petrov’s
ex-wife.

THE DECISION OF THE COURT

(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(echrcaselaw.com editing). 


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