Denying access to the foster mother and family to the child after his return to his parents violates his family life

JUDGMENT

V.D. and others v. Russia 09.04.2019 (no. 72931/10)

see here

SUMMARY

De facto family and right of communication. A child with health problems is placed under the care of the first applicant and foster mother for his first 9 years of his life. He lived in the same house as the foster mother and seven other children (other applicants) who had the same foster mother. The national courts then gave his care to his biological parents. At the same time, they ordered the discontinuation of any communication with both the foster mother and the other members of the foster family by applying national law.

The ECtHR found that the return of the child to his biological parents was in his interest and that the national courts properly balanced the situations. However, it considered that there was no proper assessment of the specific circumstances of the case with regard to depriving the foster family of any subsequent communication with the child, with whom they had developed close relations for nine years. The decision of the national courts was based solely on the formal application of the Russian law on rights of communication, which was rigid and did not take into account different family situations that did not include a blood link or a legal bond with the child. Infringement of the right to family life under Article 8 of the ECHR.

PROVISION

Article 8

THE IMPORTANCE OF THE CASE

important decision of the Court on the rights of the de facto family. The right of the minor child to communicate with the foster mother and the foster family with whom she/ he had developed close family ties for several years is included in the protection shield of Article 8 of the ECHR and the right to respect for family life. This right overrides any contrary national law because it is a fundamental individual right not only associated with persons having blood link or legal bond. Thus the communication of the foster mother or foster family  with the minor child can not be ruled out when the latter returns to her/his natural parents. The de facto family takes greater dimensions and more protection from the  Court.

PRINCIPAL FACTS

The applicants, V.D., N.P., A.Z., M.R., M.M., L.K., A.U., and K.S., are Russian nationals who live in
Astrakhan (Russia). The first applicant represents herself and the other seven applicants. She also
lodged the application on behalf of R., a Russian national born in 2000.

The first applicant was made R.’s guardian in November 2001 after he was born with severe
congenital illnesses and his parents stated that they were not able to look after him. She later
became the guardian of the other seven applicants.

In 2007 R.’s parents expressed a wish to take him back into their care after his health had become
more stable and the first applicant began proceedings to deprive them of their parental authority.
In November 2008 the first-instance court dismissed the first applicant’s action, a decision that was
upheld on appeal in March 2009. The courts ordered that R. remain living with the first applicant but
in May 2009 decided on access arrangements for the parents. They later began a second set of
proceedings to have R. live with them and in May 2010 the District Court granted their application, a
decision which was upheld on appeal. R. was transferred to his parents in June 2010.

The courts later refused to grant the applicants any contact with R. They rejected the first applicant’s
argument that she they had formed a close tie with him and cited domestic law that only members
of the family or relatives were entitled to seek such access.

THE DECISION OF THE COURT

The Court first ruled that the first applicant did not have standing to make an application on behalf
of R. as she was no longer his guardian, was not a relative and did not have his parents’ permission.

Article 8

The decision to return R. to his biological parents

The Court held that the relationship between the first applicants and R. had amounted to “family
life” within the meaning of the Convention. In particular, he had been in her the first applicant’s care
for the first nine years of his life and had lived with the other applicants, whom she had also
fostered.

It was clear that there had been interference with that family life as R. had been returned to his
biological parents. That act had been “in accordance with the law” as it had been based in the
Russian Family Code. It had also pursued one of the legitimate aims under Article 8 § 2 as it had
sought to protect the rights and freedoms of others, those of R. and the biological parents. The
Court had to examine therefore whether the measure had been “necessary in a democratic society”.
That involved the Court assessing whether the courts’ decisions had been “relevant and sufficient”
and whether the decision-making process as a whole had been fair and had provided sufficient
protection for the first applicant’s rights.

It noted that the authorities had been faced with a difficult choice – allowing the applicants as R.’s
de facto family to continue to care for him, or to return him to his parents. They had had to take
account of the competing interests at stake and R.’s vulnerability.

It was true that R. had spent the first nine years of his life with the first applicant, but that alone was
not decisive. The biological parents had agreed to the first applicant looking after him, but had never
given up their parental rights. Furthermore, they had maintained a presence in his life by providing
financial assistance and meeting the first applicant’s requests for help with medical care and special
food. In 2009 the courts had set up contact arrangements for them.

The Court concluded that the first applicant could not realistically have concluded that R. would
remain permanently in her care. Indeed, care orders were meant to be temporary and they could be
ended when circumstances permitted.

The courts had given careful consideration to the case, noting the first applicant’s attachment and
caring attitude to R. They had also assessed the parents’ fitness to look after him, at first rejecting an
application by them to take him back, but then finding them capable and ordering R.’s return. The
evidence had included psychological reports and witness statements.

The Court concluded that the domestic authorities’ decisions had been in the best interests of the
child, had been taken within the limits of their discretion (“margin of appreciation”), and had been
backed up with relevant and sufficient reasons. The interference had therefore been necessary in a democratic society and there had been no violation of Article 8.

The decision to refuse contact between the applicants and R.

The Government submitted that the courts’ decision to refuse the applicants’ any access to R. had
been based on the Family Code, which provided an exhaustive list of those entitled to such contact.
The applicants had had no blood or legal ties to R. and so had not had any right to access.

The Court noted that it had in previous cases expressed concern about the lack of flexibility in
Russian legislation on granting access to children, which did not take account of the variety of family
situations or the best interests of children.

Such issues had led the Court to find a violation of Article 8 in the case of Nazarenko v. Russia where
the law had excluded the applicant from his child’s life after his parental status was removed, even
though he had looked after her for five years.

The Court found no reason to depart from its reasoning in Nazarenko. The courts had made no
attempt to assess the particular circumstances of the case in relation to R., such as the nature of the
applicants’ relationship with him, whether it was in his best interests for them to continue to have
contact with him, or to weigh up the applicants’ interests and those of the parents.
The courts’ reliance only on the terms of the Family Code to deny access to the applicants could not
be regarded as “relevant and sufficient” reasons and it was not acceptable that they had not carried
out an assessment of the circumstances. That had amounted to a failure to weigh up fairly the rights
of all those involved and there had been a violation of Article 8.

Other Articles

The applicants requested that the Court apply measures under Article 46 (binding force and
execution of judgments) to take all the necessary steps to restore their contact with R. However, the
Court decided to leave it to the Government to choose the means in the domestic order to discharge
their legal obligation.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicants 16,000 euros (EUR) jointly in respect of
non-pecuniary damage, and EUR 200 jointly in respect of costs and expenses(echrcaselaw.com editing).


ECHRCaseLaw

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