The exclusion of the non-biological father from communication with the child, with whom he had developed strong ties, violated the right to family life

JUDGMENT

Fatkhutdinov v. Russia 29.09.2020  (App. no. 36335/18)

see here

SUMMARY

Best interests of the child and parental care. Deprivation of parental care f a minor child by the applicant, who was deemed not to be his biological father, based on his refusal to undergo a DNA test and the testimony of a witness.

The applicant claimed that he never refused to undergo a DNA paternity test, but simply could not appear on the specified dates. In any case, he did not care whether or not he was the biological father. He considered that the most important thing was that he loved the child and that the child loved him and needed him. He argued that the removal of parental care would result in the complete exclusion of the child from life.

The Court initially took into account the close personal ties between the applicant and the child, finding that their relationship was equivalent to family life within the meaning of Article 8 § 1.

The Court concluded that, in the present case, the domestic authorities had not put forward sufficient grounds as to whether the applicant’s complete exclusion from the child’s life would be in his best interests. It had never been suggested that communication with the applicant would be detrimental to his development.

The Russian authorities therefore deny the applicant the right to maintain contact with the child under a rigid domestic legal provision setting out an exhaustive list of persons entitled to maintain contact with a child, without considering whether such communication would be in the best interests of the child, they have not complied with their obligation to examine on a case-by-case basis whether it is in the best interests of the child to maintain communication and relationship with a person who, whether biologically or not, cared for them for a long time.

The ECtHR found a violation of the right to family life (Article 8 of the ECHR) and awarded an amount of 6,000 euros for non-pecuniary damage.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant was born in 1976 and lives in Sterlitamak, in the Bashkortostan Republic.  In 2012 the applicants wife, N., gave birth to a son, V. The applicant and his wife quarrelled about how to raise V. In particular, the applicant objected to physical punishments inflicted on V. by N., her father and her brother. In September 2015 N. left the applicant and took V. with her. They went to live with her family.  In October 2015 N. instituted divorce proceedings before the Leninskiy District Court of Ufa and asked for a residence order in her favour in respect of V. The applicant counterclaimed, asking for a residence order in his favour in respect of his son On 18 January 2016 the applicant, V. and N. were examined by expert psychologists, who found that V. was equally attached to both parents. On 31 March 2016 the Leninskiy District Court granted the divorce and N.s application for a residence order in her favour in respect of V. The applicant then applied for contact rights.

On 13 June 2016 the police opened criminal proceedings at the applicants request against an unknown person or persons who had inflicted bodily injuries (multiple bruises) on V. at his place of residence. It appears that the proceedings are still pending. On 25 August 2016 expert psychologists found that V. was strongly attached to his father. They recommended that contact between V. and his father should continue as it was necessary for V.s development. On 31 October 2016 the Leninskiy District Court granted the applicant contact rights.

  1. PROCEEDINGS FOR THE TERMINATION OF PARENTAL STATUS

On an unspecified date N. lodged an application with the Sterlitamak Town Court, contesting the applicants paternity of V. The Town Court ordered the applicant to undergo a DNA paternity test, which he refused to do. He asserted, in particular, that he had no doubts about his paternity of V. He further stated that V. was very attached to him and that the supposed biological father did not intend to take part in V.s upbringing, while the applicant wished to raise him and loved him irrespective of whether he was the biological father.

During the hearing, S., a friend of N.s father, stated to the Town Court that the applicant had said to N.s brother that he doubted his paternity of V. A gardener, while drunk, had once told S. that the applicant was not V.s father. On 13 March 2017 the Sterlitamak Town Court allowed N.s claims. It found that N.s allegations that the applicant was not V.s biological father had been confirmed by S.s statements. Moreover, the court drew inferences against the applicant from his refusal to undergo a DNA paternity test. The court therefore considered it established that the applicant was not V.s biological father and terminated his parental status in respect of him. It ordered that the applicants name be deleted from V.s birth certificate. During the subsequent appeal hearing, the applicant asked that N.s application be rejected by reference to paragraph 29 of the Supreme Courts recent Plenary Ruling no. 16 of 16 May 2017 .

On 5 July 2017 the Supreme Court of the Bashkortostan Republic upheld the judgment of 13 March 2017 on appeal. It held, in particular, that the applicants reference to paragraph 29 of Plenary Ruling no. 16 was “unfounded” (несостоятельный).

In his subsequent cassation appeal the applicant complained, in particular, that the appellate court had not taken into account paragraph 29 of Plenary Ruling no. 16. He had submitted evidence showing that the termination of his parental status would not be in V.s best interests, in particular evidence of his active participation in V.s life, of his wish to continue raising V. as his own child and of V.s attachment to him, such as photographs, videos, copies of instant messages, documents showing that he had bought clothes, medicine, sports equipment, books and toys for V. and had taken him to the theatre, the cinema, the pool and the amusement park. The appellate court had not taken that evidence into account, limiting its assessment to a finding that he was not V.s biological father. The applicant claimed that he had never refused to undergo a DNA paternity test but had simply been unable to appear on the appointed dates, the first time because his car had broken down on the way to the laboratory, and then because he had been sick. In any event, he did not care whether he was V.s biological father or not. He considered that the relevant facts were that he loved V. and that V. loved and needed him. He submitted that the termination of his parental status would result in his complete exclusion from V.s life. Given that V. was very attached to him, as confirmed by the expert report of 25 August 2016, such exclusion would be psychologically traumatic for V. There was also no evidence that the supposed biological father wished to participate in V.s upbringing. The termination of his parental status would therefore leave V. fatherless. The applicant further complained that the judges had rejected his request to question V. and that the opinion of the childcare authorities had not been obtained. Lastly, the applicant submitted new evidence showing that even after the appellate judgment terminating his parental status he had still continued to see V. and to support him financially.

The applicants cassation appeal was dismissed on 22 November 2017 by a judge of the Supreme Court of the Bashkortostan Republic. She held, in particular:

“The arguments that the [lower] courts did not take into account the requirements of paragraph 29 of Plenary Ruling no. 16 of 16 May 2017 by the Supreme Court … may not serve as a ground for quashing their judgments: no exceptional circumstances have been established for allowing the plaintiffs claims and showing that in this way the best interests of the child – which must be a primary consideration – will be ensured.”

A further cassation appeal by the applicant was rejected on 19 February 2018 by the Supreme Court of the Russian Federation.

  1. PROCEEDINGS FOR CONTACT RIGHTS

Meanwhile, on 12 October 2017 the Leninskiy District Court of Ufa annulled the contact order of 31 October 2016 on account of a newly discovered circumstance, namely the Sterlitamak Town Courts judgment establishing that the applicant was not V.s biological father and terminating his parental status.

On 11 December 2017 the local childcare authority stated that the application for contact rights was to be refused because the applicant was not V.s father or other relative. It did not provide any other findings or reasoning, in particular any finding concerning the relationship between the applicant and V.

On 22 December 2017 the Leninskiy District Court of Ufa rejected the applicants application for contact rights, finding that he was not entitled to maintain contact with V. as he was not his father.

 The applicant appealed. He complained that his request to have V. questioned about his wishes had been rejected by the District Court. He had submitted evidence that he continued to actively participate in his sons life and that V. was very attached to him. Expert psychologists had recommended on 25 August 2016 that contact between them should be maintained. The Town Court had therefore failed to take into account the best interests of the child. He again relied on paragraph 29 of Plenary Ruling no. 16 and argued that, logically, it should be applied to contact proceedings.

On 22 March 2018 the Supreme Court of the Bashkortostan Republic quashed the judgment of 22 December 2017 on appeal and discontinued the proceedings. Given that the applicant was not V.s father or relative, he had no standing to apply for contact rights. The appellate judgment also stated, without any further details, that the childcare authorities had found no evidence of a close emotional tie between the applicant and V.

In a subsequent cassation appeal the applicant submitted, in particular, that he had not been shown the childcare authorities opinion about the absence of a close emotional tie between him and V, and that no such opinion had been examined by the District Court. On the contrary, it was evident from the minutes of the hearing that the childcare authorities had expressly acknowledged that V. was very attached to the applicant.

The applicants cassation appeal was rejected on 15 May 2018 by a judge of the Supreme Court of the Bashkortostan Republic, who stressed, in particular, that the applicants application for contact rights had not been examined on the merits and had been rejected on the ground that he had no standing to lodge such an application.

A second cassation appeal by the applicant was rejected on 2 July 2018 by the Supreme Court of the Russian Federation.

THE DECISION OF THE COURT…

The Court notes that the present case is similar to the case of Nazarenko (cited above), which also concerned a situation where the applicant had lost all his parental rights, including contact rights, in respect of a child whom he had brought up as his own for several years, before it had been established that he was not her biological father.

In Nazarenko (cited above) the Court found, firstly, that a relationship between a registered father and a child whom he had raised and taken care of for several years amounted to family life within the meaning of Article 8 § 1. In the present case the applicant raised and provided care for V. for more than five years. As established by expert psychologists, there was a close emotional bond between the applicant and V. . Given that the applicant and V. had believed themselves to be father and son for many years until it was eventually established that the applicant was not V.s biological father, and taking into account the close personal ties between them, the Court finds that their relationship amounts to family life within the meaning of Article 8 § 1.

In Nazarenko (cited above) the Court further expressed its concern regarding the inflexibility of the Russian legal provisions governing contact rights. Those provisions set out an exhaustive list of individuals who were entitled to maintain contact with a child, without providing for any exceptions to take account of the variety of family situations and of the best interests of the child. As a result, a person who was not related to the child but who had taken care of him or her for a long period of time and had formed a close personal bond with him or her was entirely and automatically excluded from the childs life and could not obtain contact rights in any circumstances, irrespective of the childs best interests (ibid., §§ 65 and 67). The Court found that the complete and automatic exclusion of the applicant from the childs life after his parental status in respect of her had been terminated as a result of the inflexibility of the domestic legal provisions – in particular the denial of contact rights without giving proper consideration to the childs best interests – amounted to a failure to respect the applicants family life (ibid., § 68).

The Court discerns nothing in the reasoning of the domestic courts which would enable it to reach a different conclusion in the present case. It notes that after the adoption of the judgment in Nazarenko, the Supreme Court issued Plenary Ruling no. 16, in which it held that in certain circumstances the parental status of a person who was not the biological father could be maintained if this was in the best interests of the child. That Ruling was published shortly before the appeal hearing in the present case and the applicant immediately relied on it. The appeal and cassation courts, however, summarily rejected that argument, finding no exceptional circumstances for the application of the Ruling, despite the fact that the applicant had submitted ample evidence of the circumstances mentioned in it as grounds for maintaining parental status, in particular, the long family relationship between him and V., V.s stable emotional attachment to him and his intention to continue taking care of V. and raising him as his own, as well as the lack of desire on the part of the biological father to participate in V.s life (see paragraphs 19 and 21 above).

In any event, the thrust of the judgment in Nazarenko was that it was impossible to obtain contact rights after the termination of parental status. No changes to the relevant domestic law were made following delivery of that judgment and, as confirmed by the present case, it still remains impossible for a person in the applicants situation to obtain contact rights, irrespective of the best interests of the child. Indeed, after his parental status had been terminated, the applicants application for contact rights was rejected on the ground that he was not V.s father or related to him in any other way and therefore had no standing to apply for contact rights. It is true that the appellate court also briefly referred to the absence of a close emotional tie between the applicant and V. in its judgment. There is, however, no evidence in the case file that the strength of the emotional tie between the applicant and V. was ever assessed in the course of the contact proceedings, either by the childcare authorities or the courts. Indeed, the childcare authorities assessment was limited to the finding that the applicant was not entitled to contact rights because he was not V.s father , whereas the domestic courts, as stressed by the Supreme Court of the Bashkortostan Republic, did not examine the application for contact rights on the merits.

The Court concludes that in the present case the domestic authorities advanced no relevant reasons relating to the childs best interests for completely excluding the applicant from V.s life. It has never been suggested that contact with the applicant would be detrimental to V.s development. Accordingly, by denying the applicant the right to maintain contact with V. on the basis of an inflexible domestic legal provision setting out an exhaustive list of persons who are entitled to maintain contact with a child, without any examination of the question whether such contact would be in V.s best interests, Russia has failed to comply with its obligation to examine on a case-by-case basis whether it is in the childs best interests to maintain contact with a person, whether biologically related or not, who has taken care of him or her for a sufficiently long period of time (compare Nazarenko, cited above, §§ 65-68).

In view of the foregoing, the Court finds that the complete and automatic exclusion of the applicant from V.s life after his parental status in respect of him was terminated has amounted to a failure to respect the applicants family life. There has accordingly been a violation of Article 8 of the Convention.

Just Satisfaction:  The ECtHR awarded EUR 6,000 for non-pecuniary damage and costs and expenses.


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