MAGOMADOVA v. RUSSIA - 77546/14 (Judgment : Article 8 - Right to respect for private and family life : Third Section) [2018] ECHR 308 (10 April 2018)

In the case of Magomadova v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Helena Jäderblom, President,
Luis López Guerra,
Helen Keller,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 13 March 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 77546/14) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Ms Elita Khaidovna Magomadova ("the applicant"), on 5 December 2014.

2. The applicant was represented by Ms V. Kogan and Mr E. Wesselink from the Stichting Russian Justice Initiative, an NGO based in Moscow. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant alleged, in particular, that a refusal to issue a residence order in her favour in respect of her son had violated her right to respect for her family life.

4. On 4 June 2015 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1974 and lives in Moscow.

6. On 10 November 2009 the applicant gave birth to a son, I., whose father was E., her partner.

7. Following their separation in November 2010, the applicant and E. agreed that I. would live with the applicant and E. would visit him regularly.

8. On 22 October 2013 E. took the boy to Grozny in Chechnya.

9. The applicant followed them to Grozny, where she attempted to visit her son, but was prevented from doing so by E.

10. On 18 February 2014 the applicant applied to the Leninskiy District Court of Grozny ("the District Court") for a residence order under which I. would live with her. She submitted that I. had lived with her from birth until his removal by his father the previous October. They were very attached to each other. She had a stable income, a spacious flat, good character references, and was capable of providing I. with everything necessary in terms of his living expenses, education and development. She also complained that since the removal she had made many attempts to visit her son, but E. had prevented her from seeing him.

11. On 19 March 2014 the childcare authority of the Chertanovo District of Moscow visited the applicant's flat in Moscow and found the living conditions there suitable for a small child.

12. On 19 March 2014 the Justice of the Peace of the 230 Court Circuit of the Chertanovo District of Moscow convicted E. of assault and battery, finding E. guilty of assaulting and injuring the applicant in August 2013, and sentenced him to a fine.

13. On 9 April 2014 the childcare authority of Grozny visited E.'s flat in Grozny and found that the living conditions there were suitable for a small child. The officials noted that E. lived in the flat with his mother A. and his son I.

14. On 15 April 2014 the childcare authority of Grozny issued its report on the case. The report reiterated that E.'s living conditions were suitable and further read as follows:

"[E.] works as a senior medical officer at [a private medical clinic] and, according to him, has a monthly income of 50,000 roubles ...

The child has been living with his father [E.] for a long time. His mother lives in Moscow and does not participate in his upbringing. The boy is very attached to the father and receives a lot of attention, tenderness and care. Bearing in mind the best interests of [I.], [the childcare authority of Grozny] considers that a residence order in respect of [I.] in favour of his father [E.] would not be contrary to the child's interests and would not hinder his contact with the mother."

15. At the hearing concerning the applicant's application for a residence order, E. stated that I. had indeed lived with his mother until recently, but he was not at all attached to her. E. had financially supported them and had visited them regularly. The applicant was "not leading the right kind of life" and she would have a bad influence on I.

16. At the hearing, an official of the childcare authority of Grozny reiterated the findings contained in the report of 15 April 2014.

17. On 17 April 2014 the District Court dismissed the applicant's application for a residence order in her favour. It held that a residence order in respect of I. should be granted to his father, even though he had not requested it. The court held as follows:

"Article 196 § 3 of [the Code of Civil Procedure] provides that a court decides on the claims submitted by a claimant. However, the court may go beyond those claims in cases provided for by the federal law.

Article 65 of [the Family Code] provides that if no agreement can be reached, a dispute between parents must be decided by a court, having regard to the child's best interests.

It follows that the court may go beyond the parties' claims and make a residence order in respect of the child in favour of the father [E.].

The report of the childcare authority of Grozny no. ... of 15 April 2014 indicates that it is preferable to make a residence order in respect of the child [I.] in favour of his father [E.], and not to hinder his contact with his mother.

The available information shows that both parents have good character references from their employers and their neighbourhoods, have permanent employment, stable incomes, and real estate.

According to inspection reports, the living conditions of both parents meet the conditions necessary for raising and accommodating a child.

Point 5 of Ruling no. 10 of the Plenary Supreme Court of 27 May 1998 enumerates, in line with Article 65 § 3 of [the Family Code], factors which must be taken into account when deciding on a dispute concerning a child's residence arrangements. These factors are the child's attachment to each of the parents and [any] siblings, the relationship between the child and each of the parents, the child's age, the parents' moral and other personal qualities and the possibilities each of them have for creating [proper] conditions for the child's upbringing and development (in the light of such considerations as each parent's occupation, employment schedule, and financial and family situation), and other factors defining the situation in each parent's place of residence. The Plenary Ruling stresses, in particular, that the better financial or living conditions of one of the parents cannot, in themselves, constitute a decisive reason for granting this parent's application for a residence order in his [or her] favour.

The better financial and living conditions of one of the parents (the claimant has a higher income and owns residential property in Moscow) cannot constitute a decisive reason for making a residence order in her favour and for rejecting the other parent's claim, because there are other factors.

By contrast, [the applicant] is a single mother who has one more child from her previous marriage: a daughter [R.] born on 25 June 1997. This age is most difficult, and requires special attention from the mother.

Because she works, on 2 September 2013 the claimant placed I. in a [nursery school] in Moscow, despite the fact that, by her own admission, he suffers from a congenital central neural system anomaly: dysgenesis of the corpus callosum.

The [factors considered] above indicate that [the applicant] is unable to create [proper] conditions for the child's upbringing and development. Because of her work, she does not have enough time to devote to her children. These circumstances could have a disastrous impact on the child's immature mind.

It has been established that the defendant occupies a managerial position at work. His income allows him to create comfortable financial and living conditions. He lives with his mother [A.], who helps to raise [I.]. The childcare authorities' report indicates that the child is attached to his father.

The defendant has not hindered [the applicant's] contact with the child.

Under Articles 56 and 57 of [the Code of Civil Procedure], each party must prove the circumstances on which [he or] she relies in support of [his or] her claims or submissions.

In the court's opinion, the claimant has not submitted evidence in support of her arguments in [the] adversarial proceedings."

18. The applicant appealed. She complained, in particular, that the residence order had been granted to E. at the District Court's own initiative, as E. had never requested it. She further submitted that she was perfectly capable of providing I. with everything which he needed for his development. Her elder daughter was healthy and self-reliant and did not require any special attention. Her daughter would therefore not hinder her ability to take care of I.; on the contrary, she was of great help. The applicant had placed I. in a nursery school to give him a pre-school education and to further his social adaptation. His medical condition was not an obstacle to his attending a pre-school. The District Court's finding that she did not have enough time to take care of her children was not based on any evidence. Neither her working schedule nor that of E. had been examined. Nor had the court explained how, within such a short period of time, I. could have become more attached to his father than his mother, with whom he had lived from birth until his recent abduction. Lastly, the applicant complained that E. was preventing her from seeing her son. That fact had been confirmed by the childcare authorities' representative at the hearing, who had recounted E.'s assertions that he would not allow any contact between I. and his mother.

19. On 3 July 2014 the Supreme Court of the Chechen Republic upheld the judgment on appeal, finding that it was lawful, well-reasoned and justified. The judgment was based on the best interests of the child, taking into account his age, his attachment to the father, and the father's ability to create proper conditions for his son's upbringing and development.

20. In reply to a complaint by the applicant that she had been prevented from seeing her son for a long time, by a letter of 7 August 2014, a deputy mayor of Grozny informed her that E. had stated to the childcare authorities that he would not allow any contact between I. and his mother.

21. By a letter of 12 September 2014, the head of the childcare authority of Grozny informed the applicant that the childcare official who had issued the report of 15 April 2014 had been disciplined. An internal inquiry had established that the report was based on incorrect and incomplete information. In particular, E.'s statement that he had high income had not been checked. The finding that the applicant had not participated in I.'s upbringing was not based on any evidence. The length of time I. had lived with each of the parents had not been established. Lastly, the fact that I. had a half-sister living with his mother had not been taken into account. The report of 15 April 2014 had therefore violated the applicant's rights and legitimate interests.

22. The applicant lodged a cassation appeal, referring, in particular, to the letter of 12 September 2014.

23. On 27 November 2014 a judge of the Supreme Court of the Chechen Republic refused to refer the applicant's cassation appeal to the Presidium of that Court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. Relying, in particular, on the childcare authorities' report of 15 April 2014, the judge found that it was in I.'s interests to live with his father.

24. On 5 December 2014 E. died in a car accident. I continued to live with his paternal grandmother A.

25. On 14 January 2015 the applicant applied to the Shali Town Court of the Chechen Republic ("the Town Court"), asking that I. be returned to her.

26. On 31 July 2015 the Town Court granted her application. The court held that I. should be taken away from A. and returned to the applicant, with whom he should live from that point onwards. On 12 November 2015 the Supreme Court of the Chechen Republic upheld the judgment on appeal.

27. On 24 November 2015 the Town Court issued a writ of execution. On the same day bailiffs initiated enforcement proceedings.

28. On 28 November 2015 the bailiffs visited A. and ordered that she return I. to the applicant on 3 December 2015. When the bailiffs visited A. on 3 December 2015 to take I. away, A. and I. were not at home. The bailiffs visited A. again on 5 and 25 December 2015 and 4 February 2016, but could not find her or I. The childcare authorities also visited A.'s address on several occasions, but found nobody at home. It was finally established that A. had moved out with I.

29. On 24 December 2015 the bailiffs banned A. from leaving the country.

30. On 10 February 2016 A.'s and I.'s names were put on the list of wanted persons.

31. On 28 April 2016 I. was returned to the applicant by the police. On the next day the enforcement proceedings were closed.

II. RELEVANT DOMESTIC LAW

32. The Family Code provides that, in the event of parents' separation, a child's residence arrangements shall be determined by an agreement between them. If no such agreement can be reached, the child's residence arrangements shall be determined by a court order, having regard to the child's best interests and his or her opinion on the matter. In particular, the court must take into account the child's attachment to each of the parents and any siblings, the relationship between the child and each of the parents, the child's age, the parents' moral and other personal qualities, and the possibilities each of them have to create proper conditions for the child's upbringing and development (in the light of such considerations as each parent's occupation, employment schedule, and financial and family situation - Article 65).

33. The parent residing separately from the child is entitled to maintain contact with the child and participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child's contact with the other parent, unless such contact undermines the child's physical or psychological health or moral development. The parents may reach a written agreement on the manner in which the parent residing separately from the child shall exercise his or her parental authority. If the parents are unable to come to an agreement, any dispute between them shall be decided by a court after an application by the parents (or one of the parents), with the participation of the childcare authorities. If one of the parents does not comply with the court decision, measures provided for by civil-procedure law may be taken against him or her. If that parent systematically refuses to comply with the court decision, a court may, following an application by the parent residing separately from the child, transfer the child's residence to that parent, taking into account the child's interests and the child's opinion (Article 66).

34. A child is entitled to express her or his opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests (Article 57).

35. Parents are entitled to seek the return of their child from any person who retains him or her without any legal basis. In the event of a dispute, parents are entitled to apply to a court. A court may reject the application after taking into account the child's opinion if it establishes that returning the child to the parents is contrary to his or her interests (Article 68 § 1).

36. Article 196 § 3 of the Code of Civil Procedure provides that a court decides on the claims submitted by a claimant. However, the court may go beyond those claims in cases provided for by the federal law.

THE LAW

I. SCOPE OF THE CASE BEFORE THE COURT

37. The Court notes that the applicant raised several new complaints under Articles 8 and 14 of the Convention in her reply to the Government's observations. In particular, she complained that the decision to make a residence order in respect of her son in favour of the boy's father had amounted to discrimination on grounds of sex, and that the length of both the judicial proceedings in which she had sought I.'s return from his grandmother and the ensuing enforcement proceedings had been excessive.

38. In the Court's view, the new complaints raised by the applicant are not an elaboration of her original complaint lodged with the Court on 5 December 2014 and communicated to the Government on 4 June 2015. The Court will therefore not to examine them (for a similar reasoning, see Nuray Şen v. Turkey (no. 2), no. 25354/94, § 200, 30 March 2004; Melnik v. Ukraine, no. 72286/01, §§ 61-63, 28 March 2006; Kopylov v. Russia, no. 3933/04, §§ 109-10, 29 July 2010; and Antonyuk v. Russia, no. 47721/10, §§ 93-94, 1 August 2013).

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

39. The applicant complained that issuing a residence order in respect of her son in favour of the boy's father had violated her right to respect for her family life. She relied on Article 8 of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

A. Admissibility

40. The Government submitted that the applicant had failed to exhaust domestic remedies, because she had not lodged a cassation appeal against the residence order with the Supreme Court of Russia. They relied on Abramyan and Others v. Russia ((dec.), nos. 38951/13 and 59611/13, 12 May 2015).

41. The applicant submitted that she had lodged her application before the Court had pronounced its judgment in the case of Abramyan and Others (cited above). When lodging her application, she therefore could not have anticipated that the Court would recognise a second cassation appeal to the Supreme Court of Russia as an effective remedy. She further submitted that Abramyan and Others should not be applied to cases where the passage of time could cause irreparable damage. An application to the Supreme Court would have been time-consuming and would have offered little prospect of success. It would therefore have unnecessarily prolonged her separation from her son, whom at that point she had not seen for more than ten months. Lastly, given that E. had died in a car accident eight days after the first cassation appeal had been rejected, it would have made no sense to lodge a second cassation appeal after such a substantial change of circumstances.

42. The Court has already rejected similar objections by the Russian Government in many cases where the applicants had lodged their applications before the Court had pronounced its judgment in the case of Abramyan and Others (cited above, §§ 76-96, where the Court recognised the recently reformed two-tier cassation appeal procedure as an effective remedy; see, for example, Novruk and Others v. Russia, nos. 31039/11 and 4 others, §§ 70-76, 15 March 2016; Kocherov and Sergeyeva v. Russia, no. 16899/13, §§ 64-69, 29 March 2016; and McIlwrath v. Russia, no. 60393/13, §§ 85-95, 18 July 2017).

43. The Court does not see any reason to reach a different conclusion in the present case. The applicant lodged her application with the Court on 5 December 2014, that is before the Court pronounced its judgment in the case of Abramyan and Others. She can no longer avail herself of the remedy in question, as the time-limit for using it has expired. Accordingly, the Court rejects the Government's objection as to the non-exhaustion of domestic remedies.

44. The Court further notes that this complaint is not manifestly ill-�founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

(a) The Government

45. The Government submitted that the decision to issue the residence order in favour of the father had been lawful and based on the best interests of the child. The judge had assessed the parents' character references, the real estate they owned, their living conditions and family situation. In particular, the judge had taken into account that the applicant was the single mother of an adolescent daughter, and that E. lived with his mother, who could take care of the boy while E. was at work.

46. The Government conceded that the childcare authorities' report of 15 April 2014 on which the judge had relied had been found to be based on incorrect and incomplete information. However, they submitted that this had been revealed after the residence order had become final. Therefore, that fact could no longer be taken into account by the courts, including during the examination of the applicant's cassation appeal. The applicant could have asked to have the case reopened on account of a newly discovered circumstance, but she had not done so. In any event, it was for the national courts to assess the evidence before them. It was not the Court's role to determine whether a particular piece of evidence was necessary to decide a case. Given that the national authorities had had the benefit of direct contact with all the persons concerned, the Court could not substitute itself for the domestic authorities in the exercise of their responsibilities regarding child residence and contact issues.

47. The Government further submitted that I. had not been personally heard by the courts because under domestic law only the opinion of a child over ten years old had to be taken into account (see paragraph 34 above). I. had been four years old at the material time and, due to his age, would have been unable to understand and adequately answer the judge's questions. In any event, the parties had not asked that he be heard by the judge or assessed by a psychologist.

48. The Government also submitted that in cases concerning child adoption and children being taken into care the Court had taken into account that perceptions as to the appropriateness of intervention by public authorities in the care of children varied from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area (see G.H.B. v. the United Kingdom (dec.), no. 42455/98, 4 May 2000, and Eglert v. Sweden (dec.), no. 39432/04, 20 September 2007). They argued that the same approach could be applied in cases concerning residence order disputes between parents. They maintained that, in the present case, the courts of the Chechen Republic of Russia had attached particular weight to the child's origin, his Muslim religion, and traditions of the Chechen people. In particular, the court had taken into account that, according to Chechen traditions, in the event of parents' separation, as a rule, a child was raised by the father's family. Given that Russia was a multicultural and multi-�denominational State, the domestic courts had not overstepped the wide margin of appreciation afforded in such cases.

49. Lastly, the Government submitted that the domestic courts had been justified in going beyond the parties' claims and making a residence order in respect of the child in favour of the father in the absence of an explicit request by him. Such a possibility had been provided for by the domestic law. In particular, under Article 65 of the Family Code, if parents could not reach an agreement as to a child's residence arrangements, such arrangements had to be determined by a court order (see paragraph 32 above). It was significant that I. had been living with his father, who had objected to the applicant's application for a residence order under which I. would live with her. When rejecting the applicant's application, the domestic court had had to make a residence order in favour of I.'s father, in order to avoid uncertainty as to the boy's residence arrangements.

(b) The applicant

50. The applicant submitted that the domestic courts had not conducted an in-depth examination of the entire family situation or a whole series of factors, in particular factors of a factual, emotional, psychological, material and medical nature (see Antonyuk, cited above, § 134). They had disregarded the fact that I. had lived with his mother from birth until his abduction by his father. They had also refused to take into account the fact that E. had been convicted of a criminal offence for assaulting the applicant. They had based their decisions on erroneous presumptions and false information provided by the Grozny childcare authorities. The childcare authorities' report of 15 April 2014 on which the courts had relied had later been found to contain incorrect and incomplete information. The domestic courts had uncritically accepted that report without enquiring why the childcare authorities had not spoken to the applicant or why I. had not been assessed by a psychologist. Even after that report had been exposed as false and the applicant had raised that circumstance before the higher courts - which had had the authority to quash the decisions of the lower courts on the grounds of significant violations of substantive or procedural law influencing the outcome of the proceedings - the higher courts had upheld the residence order in E.'s favour.

51. The applicant further submitted that the domestic courts had inferred from the mere fact that she was a working single mother with another child, and the fact that she had placed I. in a nursery, that she was unable to create proper conditions for her son's upbringing and development. They had not explained how I.'s attendance at a nursery school despite his medical condition - for which he had been receiving proper treatment in Moscow - could have had a "disastrous impact" on him. The Moscow childcare authorities had found that the applicant's home had everything necessary for a small child. The domestic courts had disregarded that report and had asked the Grozny childcare authorities to assess E.'s living conditions, although E. had never asked for a residence order in his favour.

52. The applicant also complained that the domestic courts had accepted without any verification E.'s assertions that he had not hindered her contact with the child, despite her claims to the contrary. The domestic courts had not explained why they had considered the continuity of contact between her and I. to be an established fact on the basis of E.'s assertions alone.

53. Lastly, the applicant took issue with the Government's reference to Chechen traditions that, in the event of parents' separation, a child was to be raised by the father's family. According to the applicant, it demonstrated that women in Chechnya were discriminated against and that the decisions in her case had also been based on a discriminatory assumption.

2. The Court's assessment

(a) General principles

54. In determining whether the refusal of custody or access was justified under Article 8 § 2 of the Convention, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003-�VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003-�VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014). To that end, the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and a whole series of factors, in particular factors of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk, cited above, § 134).

55. The margin of appreciation to be afforded to the national authorities with competence will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental contact rights, and as regards any legal safeguards designed to secure effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Sahin, cited above, § 65, and Sommerfeld, cited above, § 63).

56. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents, and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child's health and development (see Sahin, cited above, § 66, and Sommerfeld, cited above, § 64).

57. Lastly, the Court cannot satisfactorily assess whether the reasons advanced by the domestic courts were "sufficient" for the purposes of Article 8 § 2 without at the same time determining whether the decision-making process, seen as a whole, was fair (see Sahin, cited above, § 68, and Sommerfeld, cited above, § 66). While Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8. The Court must therefore determine whether, having regard to the circumstances of the case and notably the importance of the decisions to be taken, an applicant has been involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests (see Z.J. v. Lithuania, cited above, § 100, with further references).

(b) Application to the present case

58. The Court considers that the decision to issue a residence order in favour of the father amounted to an interference with the applicant's right to respect for her family life (see Antonyuk, cited above, § 119; see also G.B. v. Lithuania, no. 36137/13, § 87, 19 January 2016).

59. In so far as the applicant complains that the domestic courts acted unlawfully by going beyond E.'s claims and making a residence order in his favour although he had never asked for it, the Court notes that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. The "law" is therefore the enactment in force as the courts with competence have interpreted it. While the Court should exercise a certain power of review in this matter, since failure to comply with domestic law entails a breach of Article 8, the scope of its task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic courts have interpreted and applied national law, except in cases of flagrant non-�observance or arbitrariness (see Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 46, 8 March 2011; Galović v. Croatia (dec.), no. 54388/09, § 58, 5 March 2013; and Lachowski v. Poland (dec.), no. 9208/05, § 78, 6 May 2014). The Court cannot discern any such flagrant non-observance or arbitrariness in the present case. The courts which examined the applicant's case found that it belonged to the category of cases in which, in accordance with Article 196 § 3 of the Code of Civil Procedure, they were permitted to go beyond the parties' claims. The Court accepts that the interpretation of the relevant legislation by the courts in the applicant's case was not such as to render the contested decisions unlawful in Convention terms.

60. Further, it has not been disputed between the parties that the interference pursued the legitimate aim of protecting the rights of others, namely those of I. and E. It remains to be examined whether the interference was "necessary in a democratic society".

61. Before turning to the analysis of the reasons advanced by the domestic courts, it is important to note that the scope of the residence order of 17 April 2014 was limited to determining where I. would live; it did not affect I.'s legal relationship with the applicant, and nor did it take away her parental authority. It is also significant that it was open to the applicant to apply for contact rights.

62. The Court accepts that, in reaching decisions on childcare measures, national authorities and courts are often faced with a task that is extremely difficult. It does not lose sight of the fact that the national authorities had no other choice but to issue a residence order in favour of one of the two separated parents, as the relevant domestic law did not provide for the possibility to issue a shared residence order (see Antonyuk, cited above, § 121).

63. It is not the Court's task to take the place of the domestic authorities in deciding in whose favour a residence order should be given in respect of a child of divorced parents. However, in this sphere, the Court's review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith; it must determine whether the reasons adduced by the domestic courts in child residence proceedings were relevant and sufficient (see Gruzdeva v. Russia (dec.), no. 13553/09, § 71, 8 July 2014). In particular, the Court has competence to ascertain whether the domestic courts, when taking such a decision, conducted an in-�depth examination of the entire family situation and a whole series of relevant factors and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see the case-law cited in paragraph 54 above). A failure to make a sufficiently thorough examination will amount to a violation of Article 8 (see Antonyuk, cited above, § 146). By contrast, if the domestic courts examined the question at issue with care and in line with the principles laid down by the Court's case-law, the Court would require very strong reasons to substitute its own assessment for that of the domestic courts.

64. In line with the principles and case-law outlined above, the Court will therefore examine whether the domestic authorities in the present case made an in-depth examination of the entire family situation and of all relevant factors.

65. At the outset the Court takes note of the Government's submission that the decision to make the residence order in favour of the father had been based on the custom of Muslim Chechen people, according to which, in the event of parents' separation, a child was raised by the father's family (see paragraph 48 above). It observes, however, that the Government's allegation does not find support in the domestic decisions and the Court will not therefore take it into account when examining the case.

66. The domestic courts found that the applicant would not have enough time to devote to her son because she was a working single mother with another child from a previous marriage. The courts stressed, in particular, that because of her work the applicant had placed I. in a nursery despite his medical condition (see paragraph 17 above). The Court notes that the domestic courts did not rely on any medical or other expert evidence showing that I.'s health prevented him from attending a nursery school. It is therefore not persuaded that the domestic courts convincingly demonstrated that I.'s attendance at a nursery school could have "disastrous" consequences for him. It follows that the domestic courts inferred the applicant's inability to create proper conditions for I.'s upbringing and development from the mere fact that she was a working single mother of two children.

67. The Court further notes that the domestic courts rejected the factors relating to each parent's living and financial conditions as not decisive. They did not examine any other factors that might have been relevant for determining the best interests of the child (see the list of possible relevant factors as provided for by the Russian Family Code in paragraph 32 and as defined in the Court's case-law in paragraph 54 above). No expert or other specialist assessment was performed to establish the parenting abilities of each of the parents and the child's attachment to each of them. The domestic courts did not make any assessment of the fact that E. had a criminal record, although the applicant had produced documents confirming it at the hearing. Nor did they assess how long I. had lived with each of the parents and whether he had established a stable environment and routine involving one of them. They also failed to assess the potential impact on I. of a separation from his half-sister, with whom he had lived from birth. Lastly, the domestic courts did not examine in any detail the applicant's complaint that E. had prevented her from seeing her son, limiting their assessment to stating that E. had denied the allegation.

68. The evidential basis for the domestic courts' decisions included - apart the parents' submissions and documents relating to their income, living conditions and character references from their employers and the neighbourhood - the childcare authorities' report of 15 April 2014 (see paragraph 14 above) and the oral statements by an official from the childcare authorities who simply reiterated the findings contained in that report (see paragraph 16 above). Whilst basing their decisions on that report to a significant degree, the courts failed to assess it, and merely endorsed its findings. They made no meaningful attempts to verify whether the report had been prepared after a thorough examination of the entire family situation and all relevant factors, including meetings with all interested parties such as the applicant and I. It later transpired that that report was based on incorrect and incomplete information, and particularly on information supplied exclusively by E. which had not been checked (see paragraph 21 above).

69. From the information considered above, the Court concludes that the domestic courts' examination of the case was not sufficiently thorough. It follows that the decision-making process was deficient and did not therefore allow the best interests of the child to be established. The Court accordingly finds that the domestic authorities did not adduce relevant and sufficient reasons for their decision to make a residence order in favour of the child's father. Notwithstanding the domestic authorities' margin of appreciation, the interference was not proportionate to the legitimate aim pursued.

70. There has therefore been a violation of Article 8 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

71. The applicant also complained of a violation of Article 13 of the Convention, which reads as follows:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

72. The applicant submitted that she had not had an effective remedy to protect her family life. The decisions of the domestic courts had been based on incorrect and incomplete information provided by the Grozny childcare authorities. Even after that information had been exposed as false, she had been unable to have the case reconsidered by higher courts.

73. The Government submitted that the applicant had had an effective remedy for her complaint under Article 8 of the Convention. In particular, she could have lodged a cassation appeal against the residence order with the Supreme Court of Russia.

74. The Court reiterates that Article 13 guarantees the availability at national level of a remedy in respect of grievances which can be regarded as "arguable" in terms of the Convention. Such a remedy must allow the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they discharge their obligations under Article 13 (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 96, ECHR 2000-�XI). The effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-�XI).

75. It has not been disputed between the parties that the applicant had an arguable claim under Article 8 within the meaning of the Court's case-�law, and was thus entitled to a remedy satisfying the requirements of Article 13.

76. The Court notes that the applicant was able to avail herself of a remedy under the national law: she lodged a judicial application for a residence order in her favour in respect of her son. She was able to present her arguments, and the judicial authorities at three levels of jurisdiction examined them. It is undisputed that the courts had the power to make the residence order she sought. The fact that her application was rejected does not indicate, as such, that the remedy in question was ineffective. Moreover, after it was revealed that the childcare authorities' report was incorrect and incomplete, it was possible for the applicant to apply for her case to be reopened on account of a newly-discovered circumstance (see paragraph 46 above). The applicant did not explain why she had not used that procedure.

77. In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

78. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

79. The applicant claimed 26,000 euros (EUR) in respect of non-�pecuniary damage.

80. The Government submitted that the claim was excessive.

81. The Court awards the applicant EUR 12,500 in respect of non-�pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

82. The applicant also claimed EUR 2,989.46 for transport expenses in the domestic proceedings. On many occasions she had had to travel from Moscow, where she lived, to Grozny, where her case was being examined. She submitted copies of her tickets. She also claimed EUR 3,156.50 for her legal representation before the Court. She submitted a legal fee agreement in accordance with which, if she "won" her case and was awarded compensation by the Court, she was to pay her lawyers EUR 150 per hour. She also submitted lawyers' time-sheets and relevant invoices. Lastly, she claimed EUR 89.58 for postal expenses.

83. The Government submitted that the travel expenses were unrelated to the proceedings before the Court and that, in any event, the applicant had not submitted boarding passes. The postal expenses were excessive. The applicant could have chosen a cheaper postal service. Lastly, the Government submitted that contingency fee agreements were not enforceable under Russian law.

84. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 covering costs under all heads, plus any tax that may be chargeable to the applicant.

C. Default interest

85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the decision to grant the residence order in respect of the applicant's son in favour of his father admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 8 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 10 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> MAGOMADOVA v. RUSSIA - 77546/14 (Judgment : Article 8 - Right to respect for private and family life : Third Section) [2018] ECHR 308 (10 April 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/308.html Cite as: ECLI:CE:ECHR:2018:0410JUD007754614, [2018] ECHR 308, CE:ECHR:2018:0410JUD007754614