The authorities’ inactivity to enforce a judgment on parental authority for the mother and the subsequent absurd reasoning of the courts for parental deprivation violated the right to family life.

JUDGMENT

Zelikha Magomadova v. Russia 08.10.2019 (no.58724/14)

see here 

SUMMARY

The case concerned a widow being denied access to her six children by her in-laws in defiance of court orders and the authorities’ decision to withdraw her parental authority.

Ms Magomadova was forcibly separated from her children by her brother-in-law in 2010. The children remained with her husband’s family, which has prevented her from having access to them since. The brother-in-law brought three sets of proceedings to deprive her of her parental authority, which eventually went in his favour in 2013 following the authorities’ failure to enforce two judgments first ordering that the children live with their mother and then determining contact rights with her.

The Court found in particular that not only had the authorities been idle for years when faced with Ms Magomadova’s situation, but they had then shifted responsibility on to her when ultimately depriving her of parental authority. In the Court’s view, the courts’ conclusions in those proceedings, in particular that she had avoided bringing up her children, had been totally unreasonable. Such an arbitrary interference with her right to respect for her private life had no place in a democratic society governed by the rule of law.

PROVISION 

Article 8

PRINCIPAL FACTS

The applicant, Zelikha Khalitovna Magomadova, is a Russian national who was born in 1980 and lives in the village of Ishcherskaya in the Chechen Republic (Russia).

Ms Magomadova alleges that after her husband, a police officer, had died on duty in 2006, his relatives had put pressure on her so that they could take possession of his house and the State benefits to which she was entitled. This situation led, in February 2010, to one of her brother-in-laws, E.B., hitting her on the head and taking her to her mother’s home in Ishcherskaya.
The children stayed with her husband’s family. She has had no access to them since.

Three sets of court proceedings ensued for deprivation of her parental authority, all brought by E.B., who had been appointed the children’s legal guardian in April 2010. Throughout those proceedings, and two sets of enforcement proceedings, she stated that she wanted to care for her children. She also repeatedly informed the courts, as well as law-enforcement agencies and bailiffs that she was frightened of her late husband’s relatives because they were hostile, even threatening, towards her and obstructed all contact between her and the children.

The courts rejected E.B.’s first claim in August 2010, finding that there was no evidence to prove his allegations that his sister-in-law had neglected her parental duties or ill-treated the children.
Although the courts ordered that the children should live with their mother, the judgment was never enforced because the bailiff in charge repeatedly refused to commence the enforcement procedure.

The proceedings for deprivation of parental authority were then reopened in 2011 on the basis of newly discovered circumstances, namely that Ms Magomadova had been seen in the cars of unknown men on several occasions, which fact, in the courts’ view, proved that she was cohabitating with a man and thus had an “immoral lifestyle”. In a judgment of January 2012, E.B.’s claim was again rejected for lack of evidence. However, given that the children had by that time been living with their paternal relatives for two years, the courts ordered that they should continue living with E.B., determining contact arrangements with their mother. That part of the judgment was also never enforced, despite Ms Magomadova’s applications.

Ultimately, in the third set of proceedings in 2013, the courts granted E.B.’s claim. They found that, despite the arrangements ordered in the judgment of 2012, she had failed to contact her children, in particular, her two eldest daughters who by that time were in medical school and were no longer living with their paternal relatives, or to support them financially. The courts concluded that she had therefore avoided bringing up her children.

THE DECISION OF THE COURT…

While only the third set of court proceedings in 2013 was admissible for the Court’s examination, previous events were relevant to its assessment of the case because they had led to the ties between Ms Magomadova and her children being gradually severed.

In particular, the judgments of 2010 and 2012, the first ordering that the children should live with their mother and the second determining contact arrangements, had never been enforced.
The Court noted with concern that the courts had in fact overturned the 2010 judgment and ordered that the children live with their paternal relatives because of their own failure to enforce it.
Furthermore, the 2012 ruling had been in force for more than 16 months before being terminated, with no steps taken to carry it out, apart from the bailiff obtaining a “written declaration” from E.B. that he would not obstruct contact and informing him that he could be found administratively liable.

The Court found it striking that the authorities had shown such manifest and flagrant inaction in a situation where exemplary diligence and expediency had been crucial.

Moreover, the authorities had been passive, despite being fully aware that Ms Magomadova wanted to have access to her children and to take care of them. She had consistently and repeatedly stated her intentions throughout the proceedings, informing law-enforcement agencies, the courts and the bailiffs of her in-laws hostile, even threatening, attitude towards her and their refusal to allow contact. She had also attempted to have the judgments in her favour enforced, but all her efforts had either been rejected or left unanswered.

Indeed, in 2013 in the third set of proceedings, the authorities had ultimately chosen to shift responsibility for that flagrant inaction onto the applicant herself. The Court found that the domestic court conclusions in those proceedings, namely that she had failed to have contact with her children and support them financially, had been so unreasonable that they could only be regarded as “grossly arbitrary”.

Lastly, the decisions in Ms Magomadova’s case had failed to give due consideration to the best interests of the children. No expert opinion had ever been sought on such important questions as the degree of the children’s attachment to their mother, the effect that severance of all ties with her might have had on them or her parenting abilities. Nor had any reasons been given to explain why such a drastic measure as depriving the children’s mother – their only surviving parent – of her parental authority, without exploring less far-reaching alternatives, would be in their interests. Only the two elder daughters had actually been heard in the proceedings and the court had taken their negative view into consideration, while ignoring Ms Magomadova’s arguments that her late husband’s relatives had prevented all contact with her children and set them against her. In that connection, the Court was of the view that a child’s objections were not necessarily sufficient to override the parents’ interests, especially in the context of a conflict of loyalty and/or their exposure to the alienating behaviour of one of the relatives.

The Court concluded that depriving Ms Magomadova of her parental authority had been arbitrary and grossly disproportionate, in breach of her right to respect for her private life under Article 8.
Such an arbitrary interference with one of the fundamental Convention rights should not take place in a democratic society governed by the rule of law.

Just satisfaction (Article 41)

The Court held that Russia was to pay Ms Magomadova 30,000 euros (EUR) in respect of non-pecuniary damage and EUR 9,000 in respect of costs and expenses.

 


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