The right of grandparents to communicate with their grandchildren and the Court

JUDGMENT

Bogonosovy v. Russia 05.03.2019 (no. 38201/16)

see here

SUMMARY

The case concerned a grandfather who wanted to maintain ties with his granddaughter after her
adoption by another family.

The Court held that the domestic courts should have assessed his request to maintain a
post-adoption relationship with his granddaughter but had instead interpreted and applied the law
in a way that had denied him such an examination. He had thus been excluded completely and
automatically from his granddaughter’s life and his rights had been breached.

PROVISION 

Article 8

PRINCIPAL FACTS 

The application was lodged by Vera Vladimirovna Bogonosova and Georgiy Ivanovich Bogonosov,
Russian nationals born in 1955 and 1948. Ms Bogonosova passed away in August 2018.

Mr Bogonosov lives in St Petersburg. They divorced in 1998 but continued to share an apartment.
The applicants’ granddaughter, M., was born in 2006. Her mother, the applicants’ daughter, died in
2011, and M. continued to reside with her grandparents. The applicants’ relatives, Mr and Ms Z.,
helped the applicants to look after M. and were eventually allowed to adopt her in 2013.

After facing problems maintaining post-adoption contact with his granddaughter, Mr Bogonosov
succeeded in 2015 in restoring the statutory time-limit and appealed against the adoption judgment.
The St Petersburg City Court upheld the adoption in May 2015, stating that the law did not require
that relatives such as grandparents be notified of or be involved in an adoption. On the other hand,
under Article 67 of the Family Code they had a right to maintain contact with a child and could seek
a court order if the adoptive parents prevented such contact.

However, when Mr Bogonosov made such an application, the District Court discontinued the
proceedings. It held that the original adoption process had not indicated that he was to continue to
have family ties with the child and so he had no right to seek an order against the adoptive parents
to allow contact. In Ms Bogonosova’s case, the first-instance court ordered that she be allowed
contact, but this was overturned on appeal by the Z. family. The appeal court stated that neither civil
nor family law gave Ms Bogonosova the right to seek an order for post-adoption contact.

THE DECISION OF THE COURT

The Court decided that it would not proceed with Ms Bogonosova’s application as no heir or close
relative had wished to pursue it after her death.

It found that Mr Bogonosov had had family ties with his granddaughter within the meaning of

Article 8 as, in particular, he had looked after her from May 2008 to July 2013, when she had moved
in with the Z. family.

It noted that the St Petersburg City Court, upholding the adoption, had led him to believe that he
could apply for post-adoption contact with his granddaughter under Article 67 of the Family Code
and seek a court order against the adoptive parents if they hindered contact. In fact, such a right
only existed if the original adoption judgment had mentioned the need to maintain ties with the
grandparents, which was not the case.

The Court raised the question of whether the domestic law on maintaining or severing ties between
an adopted child and his or her original family was clear enough. Presuming that it was, the Court
held that the St Petersburg City Court should have examined Mr Bogonosov’s right to maintain
contact when dealing with his appeal against the adoption, but it had not done so.

The City Court had instead interpreted and applied the law in the re-opened adoption proceedings in
2015 in such a way that had led to him being completely excluded from his granddaughter’s life after
her adoption, even though the issue of post-adoption contact had been before that court.
The court’s failure to examine the question of Mr Bogonosov’s post-adoption ties with his
granddaughter had therefore led to a breach of his right to respect for his family life.

Given its conclusions on Article 8, the Court saw no need to examine the Article 13 complaint.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary
damage and rejected his claim in respect of costs and expenses(echrcaselaw.com editing).


ECHRCaseLaw

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