The 13-year-old child has the right to choose with whom he will stay and who will have his custody. Assignment of custody to grandparents after the death of the mother and not to the indifferent father is compatible with the ECHR

JUDGMENT

Khusnutdinov and X. v. Russia  18.12.2018 (no. 76598/12)

see here  

SUMMARY

The case concerned a child residence dispute.

The Court reiterated that as soon as children become mature, the courts should give due weight to
their views and feelings and to their right to respect for their private life. Given that Mr Khusnutdinov’s daughter had expressed a clear wish to remain living with her grandparents, the Russian courts’ decision to refuse her forcible return to her father could be considered to have been based on the best interests of the child. The Court also noted that it had been Mr Khusnutdinov’s passivity during the crucial initial period of separation from his daughter that made her used to living with her grandparents and unwilling to change that arrangement.

Lastly, the Court found that the domestic courts had dealt with the proceedings with the requisite
diligence, taking into account that the proceedings took place in Russia while the parties resided in
Uzbekistan and the United States of America.

PROVISION 

Article 8

PRINCIPAL FACTS 

The applicants, Rafael Kaymanovich Khusnutdinov and his daughter, X, are Russian nationals who
were born in 1978 and in 1998 respectively. Mr Khusnutdinov lives in Washington, while his
daughter lives in Moscow.

In June 2008 Mr Khusnutdinov moved from Moscow to the United States with his wife, E., and their
daughter. X started to attend school there.

However, six months later X moved to Tashkent, Uzbekistan, to live temporarily with her
grandparents, as her mother had become seriously ill.

E. died of cancer in the United States in December 2008 and Mr Khusnutdinov went to Tashkent for
the funeral. He then returned to America, again temporarily leaving X in Tashkent with her
grandparents because her state of health prevented her from traveling.

Mr Khusnutdinov returned to Moscow in March 2009, however, the grandparents refused to bring X
to her father. During the following months he applied to various Russian consular authorities for
assistance with recovering his daughter. In September 2009 the Ministry of International Affairs
informed him that officials from the Russian Consulate in Uzbekistan had visited the grandparents and X in their home and found that X’s living conditions were excellent and that he was free to take
her away with him any time.

The Uzbek childcare authority came to the same conclusion after visiting X.

In January 2010 Mr Khusnutdinov went to Tashkent where he was able to talk to X. In September
2010 he complained to a Russian court that the grandparents were unlawfully retaining his
daughter. Different court hearings were held, but in 2011 several were adjourned because he did
not appear.

In 2012 the District Court rejected the first applicant’s request for X to be returned to him. Taking
into account X’s wishes and the opinion of the childcare authority, the court found that it would be
in X’s best interest to remain with her grandparents.

The applicant’s appeal against the decision of the District Court was subsequently dismissed as was
his cassation appeal.

THE DECISION OF THE COURT

Article 8

The Court found no reason to doubt that the domestic courts’ decisions were based on the best
interests of the child. In particular, the domestic courts had taken into account that X had expressed
a clear wish to remain living with her grandparents. The Court noted that X was thirteen years old at
the time and thus already able to form her own opinion on the matter and to understand its
consequences.

Furthermore, in the Court’s view, the failure to obtain a psychological expert opinion had not
constituted a flaw in the proceedings. X was thirteen years old when she had been heard by an
Uzbek court on the question of her return to her father and had been assisted by a specialist from
the childcare authorities. In such circumstances, the domestic courts could reasonably consider that
her statements had reflected her true wishes.

As regards Mr Khusnutdinov’s argument that the allegedly excessive length of the proceedings had
resulted in a de facto determination of the case, the Court noted, firstly, that the applicant had
chosen to apply to a Russian court despite the fact that X lived with her grandparents in Uzbekistan,
while he himself lived in the USA. That choice had inevitably affected the length of the proceedings,
making it necessary to adapt the hearing schedule to enable the parties to travel from Uzbekistan
and the USA to Moscow where the hearings were to be held and, most importantly, to send
international requests for assistance to the Uzbek authorities to help establish the facts. Even if
there had been some delays in the proceedings which were attributable to Russian authorities, the
domestic courts overall appeared to have dealt with the proceedings with the requisite diligence.
The Court observed further that Mr Khusnutdinov had remained passive during the first year and a
half after his separation from X. He had visited her only once during all that time, in January 2010.

He also had not applied to the competent Uzbek authorities, although that course of action seemed
to be the most logical one, given that X was in Uzbekistan. Apart from lodging several complaints
with the Russian consular authorities, he had not taken any meaningful action to recover his
daughter during the first year and a half of their separation. He therefore placed the task on the
Russian consular authorities, instead of being proactive himself. Furthermore, as early as in October
2009, that is almost a year before Mr Khusnutdinov´s application to a Russian court, X had begun to
say that she would prefer to remain living with the grandparents. The Court was therefore not
convinced that the alleged delays in the domestic proceedings had resulted in the de facto
determination of the case, as X’s opinion had apparently already been formed by the time those
proceedings had begun.

Accordingly, the domestic courts’ decision to follow X’s wishes and to refuse her forcible and
immediate return to Mr Khusnutdinov could be taken to have been made in the interests of the
child, having regard to the length of the girl’s stay with the grandparents, her attachment to them
and her feeling that their home was her own.

Article 13

The Court observed that the applicants had been able to avail themselves of a remedy under the
national law. The fact that their application had been rejected did not indicate, as such, that the
remedy in question was ineffective. Regarding the allegedly excessive length of the proceedings, it
found that the domestic courts had dealt with the proceedings with the requisite diligence. This
complaint was manifestly ill-founded and had to be rejected accordingly.

Separate opinion

Judge Schukking expressed a concurring opinion. Judges Keller and Pastor Vilanova expressed a joint
dissenting opinion. These opinions are annexed to the judgment(echrcaselaw.com editing). 


ECHRCaseLaw

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