The residence of children with their mother and the transfer abroad to their mother’s permanent residence does not violate the father’s right to family life
JUDGMENT
Malinin v. Russia12.12.2017 (no. 70135/14)
SUMMARY
Child custody of the mother instead of the father and the transfer of the children abroad, to the place of residence of the mother. No violation of family life.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Aleksey Malinin, is a Russian national who was born in 1979 and lives in Nizhniy Novgorod Region (Russia).
Mr Malinin complained about domestic court orders that his sons should live with his former wife rather than him, and that she had been allowed to take the children to Germany, despite his opposition, where they remained.
Mr Malinin and his wife divorced in 2011 after having two sons in 2006 and 2008. After the divorce, Mr Malinin applied in 2011, 2013 and 2014 for residence orders to have the sons live with him but the domestic courts rejected all his applications in proceedings at first instance and on appeal. He was allowed contact rights in a judgment of May 2013.
In December 2014 the courts authorised Mr Malinin’s ex-wife to take the children to Germany on holiday, despite Mr Malinin’s objections. She applied again for permission to take them to Germany in 2015, stating that Mr Malinin had refused to give his permission for the trip. Mr Malinin in turn asked for interim measures to stop them leaving Russia while court proceedings were on-going, an application which was rejected in March 2015. In May of the same year Mr Malinin’s ex-wife received permission from a court to take the children to Germany for the summer holidays.
In July 2015, the children’s mother married a German national and then left for Germany with the two children. Two months later she had another child. Mr Malinin’s sons are currently living in Germany with their mother, her new husband and their half-brother.
Mr Malinin tried to enforce the 2013 court decision for contact with his sons, but that was impossible because the children were in Germany. Mr Malinin’s former wife subsequently began Russian court proceedings for a residence order to allow the children to live with her in Germany and he filed a counter-claim for an order that they should live in Russia with him. The residence order proceedings are still on-going.
Relying on Article 8 (right to respect for private and family life) of the European Convention, Mr Malinin complained about the issuing of a residence order in favour of the mother and about the courts allowing his ex-wife and their children to go to Germany while rejecting his application for interim measures.
THE DECISION OF THE COURT
No violation of Article 8 – concerning the decision to maintain the residence order allowing the children to live with their mother
No violation of Article 8 – concerning the judicial authorisation for the children to travel to Germany with their mother(echrcaselaw.com editing).
