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You are here: BAILII >> Databases >> European Court of Human Rights >> SAVINOVSKIKH AND OTHERS v. RUSSIA - 16206/19 (Art 8 - Family life - Termination of custody and foster care agreement of transgender person - Preliminary objection joined to merits and dismissed : Third Section) [2024] ECHR 636 (09 July 2024) URL: http://www.bailii.org/eu/cases/ECHR/2024/636.html Cite as: [2024] ECHR 636 |
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THIRD SECTION
CASE OF SAVINOVSKIKH AND OTHERS v. RUSSIA
(Application no. 16206/19)
JUDGMENT
Art 8 • Family life • Termination of custody and foster care agreement of transgender person in respect of two minors on account of his diagnosis of "transsexualism" and change of gender identity • Domestic authorities' failure to conduct in-depth examination of entire family situation • Predominant reliance on legal impossibility of same-sex couples' being accepted as foster parents as well as traditions and mentality of Russian society, without consideration of investigating authorities' conclusion • Absence of individualised expert examination or supporting scientific study on impact of change of gender identity on children's psychological health and development • Lack of balanced and reasonable assessment of competing interests • Art 34 • Locus standi • Applicant had standing to act on the children's behalf as when the application was lodged the social services safeguarding their interests under domestic law were at the origin of the arbitrary interference
Prepared by the Registry. Does not bind the Court.
STRASBOURG
9 July 2024
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Savinovskikh and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Pere Pastor Vilanova, President,
Jolien Schukking,
Georgios A. Serghides,
Darian Pavli,
Peeter Roosma,
Ioannis Ktistakis,
Andreas Zünd, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 16206/19) 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, Yulia Savinovskikh ("the applicant"), on his own behalf and on behalf of D.D. and K.K., Russian nationals born in 2012, on 14 March 2019;
the decision to give notice of the application to the Russian Government ("the Government");
the decision not to disclose D.D.'s and K.K.'s names;
the observations submitted by the Government and the observations in reply submitted by the applicant;
the comments submitted by Transgender Europe (TGEU) jointly with the European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe) and the Russian Transgender Legal Defense Project (TLDP); the Russian LGBTQ+ non-governmental organisation Coming Out; and a group of global national human rights organisations (from Argentina, Canada, Colombia, Hungary, India, Indonesia, Ireland, Kenya, South Africa and the United States) led by the Irish Council for Civil Liberties, which had all been granted leave by the President of the Section to intervene in the written procedure;
the decision of the President of the Section to appoint one of the elected judges of the Court to sit as an ad hoc judge, applying by analogy Rule 29 § 2 of the Rules of Court (see Kutayev v. Russia, no. 17912/15, §§ 5-8, 24 January 2023);
Having deliberated in private on 11 June 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the termination of the custody and foster care agreement of a transgender person in respect of two minors on the ground of his being diagnosed with "transsexualism" and going through change of gender identity.
THE FACTS
2. The applicant is a Russian national, born in 1977, who resided at the material time in Yekaterinburg, Russia. He was represented by Ms N. Dobreva, a lawyer practising in Sofia, Bulgaria.
3. The Government were initially represented by Mr M. Galperin and Mr A. Fedorov, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in that office, Mr M. Vinogradov.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicant is a transgender man. He was assigned female at birth and his gender was registered as female. He has three biological children. He currently identifies as male.
6. D.D and K.K. were born in 2012. Their biological parents were deprived of parental rights. They were placed in the public care facilities and then taken into the applicant's guardianship under a foster care agreement.
7. On 5 June 2014 the municipal social services in the Kirovskiy District of Yekaterinburg issued an order by which D.D. was placed into the applicant's custody. D.D.'s biological parents had been deprived of parental rights and he had lived in a public care facility since birth. He had been diagnosed as HIV-positive and suffered from developmental delays and a form of cerebral and muscular dysfunction.
8. On 19 June 2014 the applicant signed an agreement with the municipal social services under which D.D. was placed in his care and the applicant gained custody of him.
9. On 29 January 2016 the municipal social services in the Ordzhonikidzevskiy District of Yekaterinburg issued an order by which K.K. was placed into the applicant's custody. The latter's biological parents had been deprived of parental rights and he had lived in a public care facility since birth. He had been born prematurely and was subsequently diagnosed with cerebral palsy, delayed speech development and intellectual disability. One year after his birth he was assigned disability status.
10. On 1 February 2016 the foster care agreement of 19 June 2014 was supplemented with an additional agreement in respect of K.K.'s placement in the applicant's care.
11. At the time of the above-mentioned proceedings the applicant's gender was recorded as "female", he was married to Mr. E.S. and they lived with their two biological children born in 2012 and 2013. The applicant also has an adult daughter from a previous marriage.
12. On 3 July 2017 the medical commission of the Sverdlovsk Regional Clinical Psychiatric Hospital diagnosed the applicant with "transsexualism" and established the absence of any psychiatric contraindications for him to undergo surgical, cosmetic and hormonal correction of gender (female to male). The medical commission found that since childhood the applicant identified himself as male, wanted to receive surgical and hormonal treatment so as to change his body in accordance with the chosen male gender, as well as to obtain legal recognition of his new gender identity.
13. On 21 July 2017 the applicant underwent a double mastectomy and all of his breast tissue was surgically removed. Around the same time the applicant created an account on a social network presenting himself as male.
14. On 24 August 2017 the municipal social services of the Ordzhonikidzevskiy District of Yekaterinburg became aware of the applicant's surgery and discovered that he had posted pictures of himself on his page on the social network in which he presented himself as male.
15. On 27 August 2017 a social services official visited the applicant's apartment where he resided with D.D. and K.K. During this visit the applicant told the official that he had been diagnosed with "transsexualism" and that he was going through a change of gender identity. He further stated that he was planning to move to another country with the children, where he had already lodged an asylum application. During that visit the official also found that the sanitary conditions in the apartment were unsatisfactory and decided that D.D. and K.K. should be temporarily placed into a public care facility.
16. On 28 August 2017 the social services of the Ordzhonikidzevskiy District of Yekaterinburg issued two orders in respect of D.D. and K.K. by which the applicant's custody of them was terminated with reference to the conflict between the interests of the children and the applicant.
17. According to the applicant, on 30 August 2017 he was served with the above-mentioned orders and was asked to sign a friendly settlement agreement in order to terminate the foster care agreement of 19 June 2014. The applicant refused to do so and on the same day D.D. and K.K were taken from the applicant's family and placed in the Social Rehabilitation Centre for Minors of the Ordzhonikidzevskiy District of Yekaterinburg. The applicant has not seen the children since then.
18. On 5 September 2017 the social services attempted to institute criminal proceedings against the applicant, claiming that he had not duly performed his duties as a guardian of D.D. and K.K. The investigating authorities conducted an inquiry and found the living conditions in the applicant's apartment to be satisfactory and that the applicant and his spouse had performed their parental duties in accordance with the law. On 20 October 2017 the investigating authorities refused to institute criminal proceedings.
19. On 4 September 2017 the social services lodged a complaint with the Ordzhonikidzevskiy District Court of Yekaterinburg ("the District Court"), requesting to terminate the foster care agreement of 19 June 2014, as supplemented on 1 February 2016. In their submissions they stated:
"The main reason for termination of the foster care agreement is [the applicant's] transsexualism, since the children were initially placed in a traditional family."
20. The applicant lodged a counter-claim requesting the courts to find the orders of 28 August 2017 unlawful and to restore his custody of D.D. and K.K. He submitted that he had never intended to undergo change of gender identity and that his account on the social network had been of a purely artistic nature. He stated that he had been diagnosed with "transsexualism" but claimed that that was only a part of his personality, since he still performed the role of a "mother" and that was how the children perceived him. Regarding the double mastectomy, the applicant claimed that it had not been part of a gender transition, but merely a surgery performed for personal reasons. He stated that he had been under no obligation to inform the social services of the surgery.
21. On 5 February 2018 the District Court held a hearing during which it examined the applicant's medical records and the record of the visit of the social services official to the applicant's apartment on 27 August 2017 and heard the parties and witnesses.
22. On the same day the District Court ordered that the foster care agreement be terminated and it dismissed the applicant's counter-claim. The court established that his diagnosis of "transsexualism" had been proved by the medical records and that he had actually intended to go through change of gender identity, with the double mastectomy being part of it. It further held that even though "transsexualism" was a "psychiatric disorder", it was not in itself an obstacle for gaining custody and taking children into foster care. However, in the circumstances of the case, the applicant's diagnosis of "transsexualism" had been a sufficient reason to deprive him of custody. The text of the judgment reads, in the relevant part, as follows:
"In accordance with the provisions of Article 12 of the Family Code of the Russian Federation, in Russia only a man and a woman can be married. Registration of same-sex marriages is prohibited. [The applicant's] identification as male, considering her being married to a man, her intent to adopt a social role typical for persons of male gender, is in substance contrary to the principles of family law of our country, traditions and mentality of our society."
23. The court also noted that according to the record drawn up on the official's visit to the applicant's apartment on 27 August 2017, the sanitary conditions in the apartment were unsatisfactory. The witnesses, who worked in the public care facility where K.K. was placed on 30 August 2017, submitted that upon K.K.'s arrival it was noted that the latter had major gaps in his intellectual development. According to their testimony the foster family had not ensured the necessary educational activities. Although D.D. and K.K. were affectionate toward the applicant and the members of his family, this circumstance alone could not serve as a basis for satisfying the applicant's claims in view of the substantial conflict between the interests of the applicant and those of the children.
24. The District Court found that the applicant had breached the provisions of the foster care agreement by failing to inform the social services of "significant circumstances", such as his diagnosis, the surgery and the creation of his social network page where he presented himself as male. The court considered these circumstances significant since they "affected the physical, spiritual and moral development of the children".
25. The applicant lodged an appeal with the Sverdlovsk Regional Court ("the Regional Court"). During the appeal hearing, he continued to deny his intention to go through the change of gender identity and added as evidence an expert panel report of 24 January 2018. That report concluded that the applicant should be diagnosed with "gender identity disorder, unspecified" under ICM-10 F.64.9. In view of the applicant's social adaptability, acceptance of a female social role, heterosexual relations, stable partnership, marriage and childbirth, there had been no sufficient indicators for the diagnosis of "transsexualism" (ICM-10 F.64.0). Furthermore, the report indicated that the applicant did not have any other disorder which might be dangerous for the children's life, health and development.
26. On 15 May 2018 the applicant's appeal was dismissed. The Regional Court agreed with the District Court's conclusions and reiterated that the decision to terminate the foster care agreement was based on (i) poor sanitary conditions in the apartment, (ii) apparent lack of necessary attention to K.K.'s intellectual development and (iii) the applicant's failure to inform the social services of "significant circumstances". The circumstances in question were found to be "significant", because they "characterised [the applicant's] personality, which could not but affect the mental, spiritual and moral development of the fostered children". The court pointed out that the decision to terminate the foster care agreement had been driven not by the applicant's diagnosis of "transsexualism", but by the breach of the foster care agreement and the legal impossibility of same-sex couples being foster parents.
27. Subsequent cassation appeals lodged by the applicant were dismissed on 5 September 2018 by the Regional Court and on 31 October 2018 by the Supreme Court of the Russian Federation.
28. After the applicant's appeal was dismissed, he fled to another country together with his husband and two biological children.
29. On 22 October 2018 he lodged an application for refugee status in respect of his fear of prosecution in Russia and separation from his biological children on account of his change of gender.
30. On 14 April 2021 his asylum application was granted.
31. Meanwhile, according to the Government, on 18 March 2019 and 21 February 2020, respectively, D.D. and K.K. were placed in the foster family of Mr A.G. and Ms N.G., who thus gained custody of the children.
RELEVANT LEGAL FRAMEWORK
32. The mutual and voluntary consent of a man and a woman who have attained marriageable age is required for the registration of a marriage (Article 12 § 1).
33. Children left without parental care are placed (under adoption, custody, guardianship or foster care) in families where they are to be raised. In the absence of such possibility they are temporarily placed in organisations for orphans and children left without parental care. Until a child without parental care is placed in a family or organisation specified above, the duties of their guardian are temporarily assigned to the custody and guardianship authorities (Article 123).
34. Custody and guardianship are established for children left without parental care for the purpose of their maintenance, upbringing and education, as well as for the protection of their interests. Custody is established for children under the age of 14; guardianship is established for children from 14 to 18 years of age (Article 145 § 1).
35. Only adults with legal capacity may be appointed as guardians (trustees) of children. Persons who are in a union formed between persons of the same sex, that union being recognised as a marriage and registered in accordance with the legislation of the State in which such marriage is permitted, as well as persons who are citizens of that foreign state and are not married, cannot be appointed as guardians (Article 146 § 1).
36. Persons suffering from diseases, the list of which is determined by the government of the Russian Federation and includes mental and behavioural disorders, cannot be appointed as guardians (trustees) (Article 146 § 3).[1]
37. Guardians (trustees) exercise the rights and fulfil the duties of a guardian (trustee) in respect of a child under their guardianship and are responsible for any non-fulfilment or improper fulfilment of the duties assigned to them in accordance with the procedure and conditions provided for by federal law and the custody and guardianship agreement (договор об осуществлении опеки и попечительства) (Article 153 § 2).
38. Federal Law no. 48-FZ "On Guardianship" of 24 April 2008 (Федеральный закон от 24 апреля 2008 № 48-ФЗ «Об опеке и попечительстве») provides that the rights and obligations of a guardian (trustee) for the representation and protection of the rights and lawful interests of the child arise from the moment of the adoption of the act on the appointment of a guardian (trustee). The placement of a child under custody and guardianship is allowed under the custody and guardianship agreement between the custody and guardianship authority and a guardian on the basis of the act of the custody and guardianship authority appointing a guardian who performs his or her duties in exchange for a fee. The right of a guardian (trustee) to remuneration arises from the moment of the signing of the agreement (section 14(1)-(3)).
39. Guardians are legal representatives of the children placed in their care and are entitled to act on their behalf for the protection of their rights and lawful interests without any formal authorisation (section 15(2)).
40. The custody and guardianship authority may relieve a guardian (trustee) from performing his or her duties, including temporarily, in the event of conflicts between the interests of the child and the interests of the guardian (trustee) (section 29(4)).
41. The custody and guardianship authority is entitled to remove a guardian (trustee) from the performance of his or her duties in the event of improper performance of the duties assigned to him or her, violation of the rights and legitimate interests of the ward, including when exercising guardianship for personal gain, or leaving the child without supervision and necessary assistance (section 29(5)).
42. The rights and obligations of the guardian (trustee) will be terminated from the date the custody and guardianship authority adopts an act releasing the guardian (trustee) from the performance of the duties assigned to him or her or on the removal of the guardian from the performance of such duties. This act may be challenged in court (section 29(6) and (7)).
43. The termination of guardianship leads to the termination of the custody and guardianship agreement (section 30(3)).
44. At the request of one of the parties, the contract may be changed or terminated by a court decision in the event of a significant violation of the contract by the other party. A violation of the contract by one of the parties is considered significant if it entails damage to the other party to the extent that that party is considerably deprived of what it had the right to count on when concluding the contract (Article 450 § 2).
45. For some of the relevant international material, see A.M. and Others v. Russia, no. 47220/19, §§ 33, 35, 37-40, 6 July 2021.
46. In its Resolutions 17/19 (2011), 27/32 (2014) and 32/2 (2016), the UN Human Rights Council ("the HRC") has "strongly deplor[ed] acts of violence and discrimination, in all regions of the world, committed against individuals because of their ... gender identity". The HRC has welcomed "positive developments at the international, regional and national levels in the fight against violence and discrimination based on ... gender identity".
47. In 2016, the HRC appointed an Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity ("the UN SOGI expert").
48. In his biannual reports (2018) to the HRC and the UN General Assembly, the UN SOGI expert has emphasised that "[w]ithin international human rights law, there is a well-established framework prescribing respect for gender identity" and observing that the "United Nations treaty bodies have affirmed in their doctrine that ... gender identity, including gender expression, are prohibited grounds for discrimination". He has called upon States to "adopt anti-discrimination legislation that includes ... gender identity". To address discriminatory acts against transgender populations, the UN SOGI expert recommend that States "prevent, investigate and punish ... discrimination based on gender identity perpetrated by both State and non-State actors" and that they "eliminate the social stigma associated with gender diversity ...".
49. The UN High Commissioner for Human Rights ("the High Commissioner") has strongly affirmed that transgender people are covered by existing guarantees against discrimination. In her report to the HRC (2011), the High Commissioner stated that "[a]ll people, including lesbian, gay, bisexual and transgender (LGBT) persons, are entitled to enjoy the protections provided for by international human rights law ...". She has called upon States to ensure that "anti-discrimination legislation includes ... gender identity among prohibited grounds", observing that "States' responsibility to protect individuals from discrimination extends to the family sphere" and that "States should also provide legal recognition and protection to same-sex couples and protect the rights of their children, without discrimination".
50. In the Issue Paper (2009) entitled "Human rights and gender identity", the Commissioner for Human Rights called upon member States to "implement international human rights standards without discrimination and prohibit explicitly discrimination on the ground of gender identity". In his subsequent report (2011) entitled "Discrimination on grounds of sexual orientation and gender identity in Europe", the Commissioner recommended that States "enact comprehensive national legislation on non-discrimination and include ... gender identity among the prohibited grounds ...". He advocated screening "national legislation to detect and correct possible inconsistencies with non-discrimination legislation in force to prevent discrimination on grounds of ... gender identity". In the sphere of private and family life, the Commissioner encouraged member States to "recognise the parental rights of same-sex parents, individually or jointly, including their rights of guardianship and custody without discrimination on grounds of ... gender identity".
THE LAW
51. The applicant complained that his rights under Articles 8 and 14 of the Convention had been violated. The Court decides that it has jurisdiction to examine the present application in so far as the facts giving rise to the alleged violation of the Convention occurred prior to 16 September 2022 - the date on which the Russian Federation ceased to be a party to the Convention (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 68-73, 17 January 2023, and Pivkina and Others v. Russia (dec.), nos. 2134/23 and 6 others, § 46, 6 June 2023).
52. The applicant complained, on behalf of himself, D.D. and K.K., that the removal of D.D. and K.K. from his custody had not been necessary in a democratic society and, therefore, violated their right to respect for their family life. He 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."
53. The Government argued that the applicant had no standing to bring the application on behalf of D.D. and K.K., as his custody of the children had been legally terminated on 28 August 2017 and he had had no contact with them since then. As of 18 March 2019 and 21 February 2020 respectively, D.D. and K.K. were accommodated in the foster home of Mr A.G. and Ms N.G., who have been exercising their rights and duties in representing D.D. and K.K. and protecting their rights and lawful interests.
54. The applicant argued that, at the time of the lodging of the present application before the Court, the functions of D.D.'s and K.K.'s guardian had been exercised by the Yekaterinburg Social Welfare Office. However, the Yekaterinburg Social Welfare Office (custody and guardianship authority) had been accused before the Court of failing in its responsibility to protect D.D.'s and K.K.'s best interests by arbitrarily removing them from the applicant's custody. Further, no information had been provided as to whether the new guardians, Ms A.G. and Mr N.G., had been informed of the proceedings before the Court brought on behalf of their foster children and whether they had been asked if they wished to maintain these complaints on behalf of D.D. and K.K. Lastly, the applicant submitted that the question of locus standi had been closely intertwined with the questions which the Court was called upon to examine under Article 8 of the Convention and that the Government's objection should be dismissed.
55. The Court reiterates that the position of children under Article 34 of the Convention calls for careful consideration, as children must generally rely on other individuals to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense (see Strand Lobben and Others v. Norway [GC], no. 37283/13, § 156, 10 September 2019). It is necessary to avoid a restrictive and purely technical approach in this area; in particular, consideration must be given to the links between the child in question and his or her "representatives", to the subject-matter and the purpose of the application and to the possibility of a conflict of interests (see Giusto and Others v. Italy (dec.), no. 38972/06, ECHR 2007-V, and Moretti and Benedetti v. Italy, no. 16318/07, § 32, 27 April 2010).
56. In view of the foregoing, the Court considers that the matter of the applicant's standing to bring the present complaint before the Court on behalf of D.D. and K.K. is closely linked to the merits of the complaint. It therefore joins the Government's preliminary objection in this regard to the merits.
57. In other respects, the Court notes that the complaint under Article 8 of the Convention is not inadmissible for being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or on any other grounds. It must therefore be declared admissible.
(a) The applicant
58. The applicant submitted that the interference had not pursued a legitimate aim within the meaning of Article 8 § 2 of the Convention. The "traditional family", defined by the Russian government as a union between a man, a woman and their children, was not as such a protected aim and the termination of the foster care agreement had not served to advance this declared aim. The protection of moral values or the institutions of family and marriage does not justify interference with the individual rights of LGBT persons, namely under Article 8 of the Convention.
59. The applicant disagreed with the Government's submission that the "traditional value" to procreate was worth protecting at all costs. He believed that non-traditional family forms could likewise advance true family values.
60. The applicant applied for the position of foster parent individually, not jointly with his husband, and he had had a personal contract with the custody and guardianship authority. Russian law allowed single parents, including single fathers, to take care of foster children. It had been the custody and guardianship authority's duty to guide and help him in the course of the implementation of the foster care contract, giving him indications and advice as to the best manner to fulfil his function, including after the change of his gender identity.
61. The domestic authorities had applied the Family Code, ignoring the individual circumstances and what had been at stake for D.D. and K.K.: the risk of living in a hospital, without parental care.
62. For the reasons above, the applicant considered that his separation from D.D. and K.K. had not pursued a legitimate aim under the Convention and had not been necessary in a democratic society applying modern medical standards and modern understanding of transgender persons' identities.
(b) The Government
63. The Government submitted that the decisions of the domestic authorities had been well-founded because the applicant's self-identification as male had contradicted the provisions of Russian law barring same-sex unions and patients with mental disorders becoming foster parents. The applicant had been chosen as a foster parent because he had provided a traditional family environment for raising the children, therefore the disruption of this environment (the disrupting of the different-sex union, diagnosis of transsexualism, mastectomy and blogging using male identity) had justified the premature termination of the foster care contract. The measure in question had pursued a legitimate aim of, inter alia, eliminating a demographic threat to the propagation of the Russian population and the protection of the interests of the children. The Government further submitted that the Russian Federation had not been the only member State of the Council of Europe where same-sex marriages were prohibited and where a ban on the adoption of children or establishment of custody or guardianship over them had been denied to couples of the same sex. They cited the relevant provisions of Romanian and Armenian law.
(c) Third-party interveners
(i) TGEU, ILGA-Europe and TLDP
64. The third-party interveners submitted, citing multiple studies, that scientific research had conclusively disproved fears that children in transgender families were more likely to adopt atypical gender behaviour or gender identity or show any impact on their developmental milestones. Studies had proved that protective processes such as family continuity and communication could help children to avoid the feeling of "loss" after their parent's transitioning. At the same time, other variables, such as the age of the children (younger children being arguably more accepting), the relationship between the parents and social stigma, could make the adaptation process more difficult. The third parties suggested that decisions on child custody or the parental rights of a transgender parent should be based on an individualised analysis, rather than on negative perceptions and "myths" about transgender parents.
(ii) Coming Out
65. The third party submitted that family relations arising between a guardian and a fostered child were covered by the guarantees of Article 8 of the Convention and that any interference into relations of that kind should be done only when necessary in a democratic society. In the balancing of a guardian's and a fostered child's interests particular importance should be attached to the best interests of the child, transgender status of a guardian alone not being sufficient to justify the removal of a fostered child from the former's care.
66. Relying on modern studies of relations between parents and children in families which included transgender people, the third party went on to say that it was important for the children to preserve connection with a person they knew and loved; change of sex or gender did not hinder the children from recognising that parent as the same attentive, caring and loving person as he or she had been before the surgery.
(a) General principles
67. The relevant general principles concerning interference with the right to respect for family life have been summarised by the Court in Strand Lobben and Others, cited above, §§ 202-11, and Petrov and X v. Russia (no. 23608/16, §§ 98-102, 23 October 2018).
(b) Application of the above principles in the present case
68. The Court notes at the outset that the parties did not dispute the existence of family ties between the applicant, D.D. and K.K. between 5 June 2014 and 29 January 2016 respectively, when the applicant was appointed their guardian, and 28 August 2017 when his guardianship over them was terminated (see paragraphs 7, 9 and 16 above). Indeed, the Court has found in previous cases that the relationship between a foster family and a fostered child who had lived together for many months had amounted to family life within the meaning of Article 8 § 1 of the Convention, despite the lack of a biological relationship between them. It took into account the fact that a close emotional bond had developed between the foster family and the child, similar to the one between parents and children, and that the foster family had behaved in every respect like the child's parents (see V.D. and Others v. Russia, no. 72931/10, §§ 90-93, 9 April 2019; Moretti and Benedetti, cited above, §§ 49-50; and Kopf and Liberda v. Austria, no. 1598/06, § 37, 17 January 2012).
69. It is not in dispute that the termination of the applicant's custody of D.D. and K.K. on 28 August 2017 resulted in the severance of that relationship and thus constituted an interference with the applicant's right to respect for his family life, as guaranteed by Article 8 of the Convention. Such interference constitutes a violation of that provision unless it is "in accordance with the law", pursues one of the legitimate aims under Article 8 § 2 and can be regarded as necessary in a democratic society.
70. The Court accepts the Government's argument that the impugned measure had a basis in national law, namely the Family Code, the Civil Code and the Federal Law "On Guardianship" (see paragraphs 35-37 and 40-44 above). It further notes that the Government advanced two aims behind the measure in question - avoiding the demographic threat to the population and the protection of the interests of the children (see paragraph 63 above). While the Court does not accept as legitimate the first aim in the absence of a clear link between the termination of the applicant's custody and the alleged demographic threat, it is prepared to assume that the measure in question was intended to protect the interests of the children D.D. and K.K (compare A.M. and Others v. Russia, cited above, § 51). It will proceed on this assumption to determine whether the interference at issue was necessary in a democratic society.
71. The Court observes that in the present case the domestic authorities terminated the applicant's custody in respect of D.D. and K.K. essentially on account of his diagnosis of "transsexualism", his change of gender identity and the resulting disruption of the traditional family, defined in domestic law as a union of a man and a woman, where the children had been initially placed, which allegedly affected their physical, spiritual and moral development (see paragraphs 19, 22, 24 and 71 above). Although the Regional Court in its decision of 15 May 2018 stated that the termination of the foster care agreement had not been driven by the applicant's diagnosis of "transsexualism", but by his failure to inform the social services about it, the fact remains that the applicant's change of gender identity, consistently at the centre of the deliberations, was viewed by the appellate court as reflecting on his personality, which "could not but affect the mental, spiritual and moral development of the fostered children" and thus in contradiction to the interests of the children (see paragraph 26 above). The domestic courts, furthermore, briefly relied on allegedly unsatisfactory sanitary conditions in the applicant's apartment and the alleged failure to provide K.K. with the necessary educational activities.
72. It is not the Court's task to take the place of the domestic authorities in examining whether the applicant, in carrying out his functions as D.D.'s and K.K.'s guardian, represented any risk to their psychological health and development and whether his guardianship should have been terminated. However, the Court must satisfy itself that the domestic courts, when taking such a decision, conducted an in-depth examination of the entire family situation and a whole series of other 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 A.M. and Others v. Russia, cited above, § 53, with further references).
73. The Court observes that the decision ending the applicant's custody concerned children, aged four and five years at the material time, who had serious medical diagnoses, were abandoned at birth and, prior to their placement in the applicant's family at the ages of one and three years respectively, had stayed in the State-run institutions. It further observes that the decision in question was not supported by any individualised expert examination of the applicant and the children or any scientific study regarding the impact of a change of gender identity on the children's psychological health and development. The reasoning of the domestic courts in this respect relied primarily on the legal impossibility of same-sex couples' being accepted as foster parents, as well as the traditions and mentality of the Russian society. Furthermore, no consideration was given to the conclusion of the investigating authorities, including in relation to the allegedly unsatisfactory sanitary conditions in the applicant's apartment, to the effect that the applicant and his spouse had performed their parental duties in accordance with the law (see paragraph 18 above) and to the expert report of 24 January 2018, provided by the applicant, to the effect that the latter "did not have any disorder which could be dangerous for the children's life, health and development" (see paragraph 25 above). As regards the reference to K.K.'s "major gaps in intellectual development" allegedly imputable to the applicant, no expert examination was ordered to assess this circumstance against the background of the child's diagnoses of cerebral palsy, delayed speech development and intellectual disability, his condition at the moment of his placement in the applicant's family or the duration of his stay there.
74. The existence of substantial contradictions between the interests of the applicant and of the children were found by the domestic authorities in the absence of any evidence to the effect that the applicant's change of gender identity could in any way be harmful to the children and in disregard of the children's affection for the applicant and the members of his family (see paragraph 23 above).
75. The Court notes with concern that on 30 August 2017 D.D. and K.K. were taken from the applicant's family and placed in the Social Rehabilitation Centre for Minors, where they remained for one year and six months and nearly two years and six months respectively, before their placement in a new foster family on 18 March 2019 and 21 February 2020.
76. In view of the foregoing considerations, the Court finds that by terminating the applicant's custody of D.D. and K.K. the domestic authorities failed in their duty to conduct an in-depth examination of the entire family situation and to make 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 children.
77. In such circumstances, the Court considers that regardless of the absence of either a biological or a legal link between the applicant and K.K. and D.D. as from 28 August 2017, when the applicant's custody of them was terminated by the social services, the applicant did have standing to bring the present complaint before the Court on their behalf. Finding otherwise would mean that serious issues concerning respect for the minors' rights under Article 8 of the Convention would be left unexamined at an international level in view of the fact that at the time of the lodging of the present application before the Court their interests were safeguarded under domestic law by the same social services who had been at the origin of the arbitrary interference (compare and contrast V.D. and Others v. Russia, cited above, §§ 72-76, where a former guardian was found to have no standing to bring an application on behalf of a minor transferred to and living with his biological parents who had full parental authority over him; see also, albeit in a different context, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 104-114, ECHR 2014). Accordingly, the Government's objection concerning the lack of locus standi of the applicant to bring the application on behalf of D.D. and K.K. must be dismissed.
78. The Court concludes that there has been a violation of Article 8 of the Convention in respect of the applicant, D.D. and K.K.
79. The applicant complained under Article 14 in conjunction with Article 8 of the Convention that the termination of his guardianship in respect of D.D. and K.K. had been discriminatory, since his change of gender identity had served as the major ground for that decision by the domestic authorities. Article 14 of the Convention reads as follows:
"The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
80. The Government submitted that during the examination of the case by the Russian courts the applicant argued that he had never planned on undergoing medical procedures for gender transition. According to him, the breast removal surgery had been cosmetic in nature, he had never planned to apply for a change of identity documents and his husband, children and friends had addressed him as a woman. At the same time, when lodging his application before the Court less than a year after the termination of the proceedings at the domestic level the applicant had identified himself as a transgender man. He had therefore misled the domestic authorities and/or the Court and his complaint should be rejected as being manifestly ill-founded.
81. The Court notes that the domestic courts rejected the applicant's arguments to the effect that he had not intended to undergo the change of gender identity and established the existence of the evidence to the contrary (see paragraphs 21-22 above), on which they subsequently based their decision. In the Court's view the applicant's choosing of the defense strategy for protecting his interests cannot be held against him. The above objection raised by the Government must therefore be dismissed.
82. The Court has consistently held that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto. Article 14 has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of them (see Molla Sali v. Greece [GC], no. 20452/14, § 123, 19 December 2018, with further references).
83. The Court has found that the termination of the applicant's custody of D.D. and K.K. by the domestic authorities amounted to an interference with his right to respect for his family life under the first paragraph of Article 8 (see paragraphs 76-78 above). It follows that Article 14 of the Convention, taken in conjunction with Article 8, is applicable in the present case.
84. The Court further notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
(a) The applicant
85. The applicant submitted that the discrimination that he had suffered had been two-fold: it had stemmed both from domestic law and from its application in his particular case. The relevant domestic legislation directly discriminated against LGBTI foster and adoptive parents to the benefit of heterosexual and cisgender parents. Neither the Family Code nor the Federal Law "On Guardianship" contained any non-discrimination provisions whatsoever. The Family Code explicitly prohibited persons in same-sex relationships from being appointed as a child's guardian or from being eligible to adopt a child. Those provisions were so directly discriminatory and in contradiction to the Convention that the Court could find a violation of Article 14 on the sole basis of their being incorporated in Russian legislation. In addition, when deciding on his case the domestic authorities had treated the applicant and his family differently than cisgender persons and different-sex couples, without any justifiable reason.
86. The applicant asserted that the difference in the treatment of his situation was clearly evident in comparison with that of the current foster parents of D.D. and K.K. - Ms A.G. and Mr N.G., a different-sex couple. The "protection of the traditions and the mentality of the Russian society" did not justify this difference in treatment for the reasons advanced in the applicant's submissions under Article 8 (see paragraphs 58-59 above).
(b) The Government
87. The Government argued that the applicant's diagnosis of transsexualism, his surgery for breast removal and his intention to change his gender identity had not been the sole reasons for the termination of his custody of D.D. and K.K. The main reason had been the violation of the terms and conditions of the foster care agreement, improper custody of the children and concealment from the custody and guardianship authority of the circumstances essential for resolving the issue of his custody. Furthermore, after the breast removal surgery performed in the context of change of gender identity, the applicant's marriage with his spouse had been under threat in view of the ban on same-sex marriages in Russia. His self-identification as male and desire to accept the social role particular to male gender had contradicted the principles of family legislation, traditions and mentality of the Russian society. There has accordingly been no violation of Article 14 of the Convention in conjunction with Article 8.
(c) Third-party interveners
(i) TGEU, ILGA-Europe and TLDP
88. A review of European and national legislation and case-law showed that there was an international consensus recognising the rights of transgender persons in respect of gender recognition, non-discrimination on the basis of gender identity and the right to family life in the form of foster parenting. Several European countries (Spain, Portugal, United Kingdom and France) recognise, either in their national law or through their case-law, transgender parents' right to parenthood, including foster care. The Court has recognised the right of transgender persons to non-discrimination in relation to parenthood, in particular with regard to biological parents. It has previously decided on the possible violation of the rights of transgender parents from the perspective of proper justification (that is, whether the best interests of the child warranted the measure taken by the authorities) and proportionality (that is, whether the means used to achieve the aim were justified) (they referred to Hämäläinen v. Finland ([GC], no. 37359/09, ECHR 2014; X, Y and Z v. the United Kingdom, 22 April 1997, Reports of Judgments and Decisions 1997-II; and P.V. v. Spain, no. 35159/09, 30 November 2010). The very same principle should be applied in cases of foster parenting. Decisions on child custody rights under foster care systems for transgender parents based on negative preconceptions and myths about transgender parents rather than on an individualised analysis of factors that are genuinely important to the child's well-being constitute a violation of their rights to family life and non-discrimination.
(ii) Coming Out
89. The third party expressed concern about the stigmatisation of LGBTI people in Russia and their discrimination in the exercise of their basic rights, including in the sphere of family life. Family unions involving a transgender person became "invisible" since Russia did not recognise any other form of family union except marriage between a man and a woman. Domestic law provided for temporary or definite termination of the performance of his or her duties as guardian in the event of a conflict between the interests of the child and the guardian (see paragraph 40 above). The notion of a "conflict of interests" was, however, not defined in the law and was left to the discretion of a custody and guardianship authority and the court. A study of cases carried out by the third party had showed that such interpretation differed depending on whether the guardian was cisgender or transgender. Whereas in the cases involving cisgender guardians the standard of proof of a conflict of interests was very high (a previous conviction for a crime against life and health was not a reason to refuse being appointed as a guardian; a sentence of imprisonment which had not entered into force was not found to amount to a conflict of interests between the guardian and the child), in cases involving transgender guardians, such as the applicant's, it was very low (limited to transgender status). At the same time, in the absence of scientific studies proving any negative impact of a transgender guardian on a fostered child there was no ground for removal of the latter from such families.
(iii) The Irish Council for Civil Liberties on behalf of a group of global national human rights organisations
90. Relying on the UN and Council of Europe material (see paragraphs 45-50 above), EU secondary legislation and case-law, the Organisation of American States human rights system, the African Union's human rights and peoples' rights system and national human rights systems, the third parties emphasised a continuing international trend towards the recognition of a right to non-discrimination on the ground of gender identity and an emerging consensus in favour of equal treatment and dignity for transgender individuals.
91. The relevant general principles established under Article 14 of the Convention have been reiterated in Hämäläinen (cited above, §§ 107-09) and Molla Sali (cited above, §§ 133-37).
92. The Court has previously established that the prohibition of discrimination under Article 14 of the Convention duly covers questions related to gender identity (see Beizaras and Levickas v. Lithuania, no. 41288/15, § 113, 14 January 2020; Identoba and Others v. Georgia, no. 73235/12, § 96, 12 May 2015; and P.V. v. Spain, cited above, § 30).
93. Having regard to its finding of a violation under Article 8 of the Convention (see paragraphs 68-78 above), the Court considers that it is not necessary to examine separately the merits of the applicant's complaint under Article 14 of the Convention in conjunction with Article 8.
94. 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."
95. The applicant claimed 9,000 euros (EUR) in respect of pecuniary damage, which represented his salary as a caregiver of two children under the age of three with chronic diseases in the amount of EUR 193[2] monthly for the period between August 2017 and November 2021 (the date of the submission of his claim before the Court for just satisfaction), which he would have received had the foster care contract not been terminated. He relied on the copy of the foster family agreement of 19 June 2014 contained in the annexes to the Government's observations. He further claimed EUR 9,000 for himself and EUR 3,000 for D.D. and K.K. (each) in respect of non-pecuniary damage sustained as a result of the violation of their rights under Article 8 of the Convention.
96. The Government submitted that the applicant's claim in respect of pecuniary damage was unreasonable since the foster family agreement had been terminated in accordance with the law. They considered that his claim for non-pecuniary damage was also unreasonable and did not correspond to the Court's case-law.
97. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. It considers, however, that the applicant, D.D. and K.K. sustained non-pecuniary damage in connection with the violations it has found of their rights under Article 8 of the Convention. Accordingly, it awards the applicant EUR 7,500 under this head, plus any tax that may be chargeable, and considers that the finding of a violation provides sufficient just satisfaction in respect of D.D. and K.K.
98. The applicant claimed EUR 8,400 for the costs and expenses incurred before the Court, which represent legal fees for seventy hours of work performed by his representative Ms N. Dobreva at the hourly rate of EUR 120, to be paid directly to the latter's bank account. The applicant submitted a copy of the legal services agreement with Ms N. Dobreva dated 30 November 2018, providing that he had undertaken to pay for the latter's services. The obligation to pay the legal fee would arise only if the Court delivered a judgment favourable to the applicant. He submitted Ms N. Dobreva's time sheet.
99. The Government submitted that the applicant could not be said to have actually incurred those costs. In particular, the legal services agreement providing that legal fees were payable to the representative only in the event of a successful outcome of the proceedings before the Court made it unenforceable against the applicant in Russia.
100. The Court takes note of the principle that the award should be made in so far as the costs incurred are necessary and reasonable. It further notes that it has previously accepted contingency fee agreements in support of applicants' claims for costs and expenses in many cases (see, most recently, B v. Russia, no. 36328/20, § 79, 7 February 2023). In the present case, regard being had to the documents in its possession and the criteria above, the Court considers it reasonable to award the applicant EUR 5,000 for the proceedings before it, plus any tax that may be chargeable to him, to be paid into the bank account of Ms N. Dobreva.
FOR THESE REASONS, THE COURT
(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 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of Ms N. Dobreva;
(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;
Done in English, and notified in writing on 9 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Pere Pastor Vilanova
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Serghides is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE SERGHIDES
1. The present case concerns the termination of the custody and foster care agreement granted to the applicant, a transgender man, in respect of two minors, on the ground of his diagnosis of "transsexualism" and the fact that he was going through a change of gender identity. He complained of a violation of both Article 8 and Article 14 read in conjunction with Article 8.
2. I voted for all points of the operative provisions of the judgment apart from points 5, 7 and 8.
3. I disagree with the finding that there was no need to examine separately the complaint under Article 14 of the Convention taken together with Article 8 (see paragraph 93 of the judgment and point 5 of its operative provisions). More specifically, the said complaint was that the termination of the applicant's guardianship in respect of the children, namely D.D. and K.K., had been discriminatory, since his change of gender identity had served as the major ground for that decision by the domestic authorities. I completely disagree with the methodology set out in the judgment which, while actually dealing with the admissibility (see paragraphs 80-84) and the merits of this complaint comprehensively (including the submissions of parties, third-party interveners, and the Court's assessment, with reference to the relevant case-law of the Court, see paragraphs 85-92), in the end refrains from finding a violation, simply stating that it is not necessary to examine separately the merits of this complaint. If it was not necessary to examine this complaint, I would expect the Court not to address it at all. Put otherwise, it would be pointless for the Court to examine the said complaint and not to conclude on it by making a finding. After all, the complaint in question, regarding discrimination on the basis of gender identity was the most defining feature of the case, encompassing both a social element and human dignity, which in the present case are so apparently and unquestionably the crux of the issue. Finally, I would respectfully submit that the Court should have concluded its examination and found a violation of the relevant Convention provisions.
4. I also disagree with the holding of the Court that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the children, namely D.D. and K.K. I have explained in many separate opinions that such a holding is erroneous and contravenes the wording and aim of Article 41 of the Convention as well as the principle of effectiveness (see, inter alia, paragraphs 3-16 of my partly dissenting opinion in Tingarov and Others v. Bulgaria, no. 42286/21, 10 October 2023; paragraphs 22-38 of my partly concurring, partly dissenting opinion in Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, 26 September 2023; and paragraphs 4-10 of the joint partly dissenting opinion that I authored with Judge Felici in Grzęda v. Poland [GC], no. 43572/18, 15 March 2022). Accordingly, I will not elaborate on this matter again here. The point, however, that I would make, and very emphatically, is that, in my humble submission, it is absurd and discriminatory for the applicant to be awarded a monetary amount (EUR 7,500) for non-pecuniary damage whilst the two children were not awarded any amount under this head, but instead, were provided only with a theoretical, meaningless and empty declaration that the finding of a violation of Article 8 provides sufficient just satisfaction for any non-pecuniary damage suffered by them. The principle of the best interests of the child, which is enshrined in Article 8 according to the Court's case-law, required without doubt the granting of a monetary award in respect of non-pecuniary damage, as only such an award could have served the two children's best interests in the present case.
Furthermore, the difference in treatment between the applicant and the children cannot be explained, given that they were all victims of the same violation, namely that of Article 8 (see paragraph 78 of the judgment). Whilst a possible distinction could have been made under Article 14, if the Court had found a violation of that Article in conjunction with Article 8, which arguably would have concerned only the applicant and not the children, no such finding was reached. Two final observations need to be made: firstly, the applicant sought an award for non-pecuniary damage not only for himself but also for the two children (see paragraph 95 of the judgment); and, secondly, the Court decided that the applicant had locus standi to bring the application on behalf of the children, the relevant objection of the Government being dismissed.
5. I also decided to vote against point 8 of the operative provisions dismissing the remainder of the applicant's claim for just satisfaction, because I would have awarded each child an amount for non-pecuniary damage to be placed in their names in a bank account, with an obligation to inform the Committee of Ministers accordingly.
APPENDIX
List of applicants:
No. | Applicant's Name | Year of birth/registration | Nationality | Place of residence |
| Yuliya Valeryevna SAVINOVSKIKH | 1977 | Russian | Yekaterinburg, Russia (at the material time) |
| D.D. | 2012 | Russian | Yekaterinburg, Russia |
| K.K. | 2012 | Russian | Yekaterinburg, Russia |
[1] Resolution no. 117 of the Government of the Russian Federation "On approval of the list of diseases which prevent a person from adopting a child or taking a child under custody or guardianship, in an adoptive or foster family" of 14 February 2013.
[2] The equivalent of approximately 15,900 Russian roubles at the material time.
