I correctly predicted that there was a violation of human rights in NALTAKYAN v. RUSSIA.

Information

• Judgment date: 2021-04-20
• Communication date: 2015-09-10
• Application number(s): 54366/08
• Country:   RUS
• Relevant ECHR article(s): 8, 8-1
• Conclusion:
  Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations
  Article 8-1 - Respect for family life)
  Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations
  Article 8-1 - Respect for family life)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.5
• Prediction: Violation

• Consistent

Communication text used for prediction

The applicant, Mr Zaven Volodyayevich Naltakyan, is a Russian national, who was born in 1972 and lives in Miramas.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is married to Ms I. Kh.
The latter, as appears, kept her maiden surname, Kh., after she married the applicant.
They are raising together their four children – a daughter, M.N., born in 1996, and three sons, T. N., born in 1997, V. N., born in 2005 and Va. N., born in 2007.
At the time of the events described below the applicant and his family lived in the village of Pyatigorskiy in the Stavropol Region of Russia.
1.
Birth of the applicant’s son V. On 2 September 2004 the applicant brought his wife, who he believed was approximately six months pregnant at that moment, to the Pyatigorsk maternity hospital, as she was showing symptoms of premature labour.
Later that day Ms I. Kh.
gave birth to a baby boy, V. It was the third child in her and the applicant’s family at that time.
As Ms I. Kh.
later alleged, the doctors had dissuaded her from having a look at the baby and stated that, born long before term, he was very weak and had very poor prospects of survival.
Being in a state of shock and distress, the applicant’s wife decided to give the baby up in the maternity hospital.
On 3 September 2004 Ms I. Kh.
wrote and signed a statement in which she renounced her parental authority over her newly born son and indicated that she would not object to his subsequent adoption (заявление об отказе от ребенка и согласии на его усыновление).
She further wrote a similar statement on the applicant’s behalf, having changed her hand-writing and having imitated his signature.
Copies of the statements have not been submitted to the Court.
On the same day the applicant came to see his wife in the maternity.
According to him, the doctors informed him that Ms I. Kh.
had “miscarried”.
On her part, Ms I. Kh.
explained to him that she had given a premature birth to a baby boy, who had died shortly after.
The applicant and Ms I. Kh.
then left the maternity.
It does not appear that either the applicant or his wife saw the newborn at any moment.
In reality, the boy survived and remained under the care of the maternity hospital.
On 28 September 2004 a competent authority issued a birth certificate for V., where the applicant and Ms I. Kh.
were indicated respectively as his father and mother.
V.’s patronymic, Z., reflected the applicant’s first name, whereas V.’s surname, Kh., corresponded to the maiden surname of his mother, I. Kh.
On 18 October 2004, by virtue of a local authority’s decision, V. was transferred to an infant foster home.
2.
V.’s adoption by Mr S. and Ms Ch.
At some point in July 2005 Mr S. and Ms Ch.
visited the orphanage seeking a child for adoption.
When they saw V., they immediately decided to adopt him.
By a decision of a competent local authority dated 26 July 2005 Ms Ch.
was appointed V.’s legal guardian.
The decision stated, inter alia, that V. had been abandoned by his parents, who, each in a separate written statement of 3 September 2004, had expressed their consent to his potential adoption.
On 27 July 2005 Mr S. and Ms Ch.
took V. from the foster home and brought him home at their address in the town of Zheleznovodsk in the Stavropol Region of Russia, where the boy has been living with them since then.
On 4 April 2006 the Zheleznovodsk Town Court examined an application for V.’s adoption lodged by Mr S. and Ms Ch.
The court noted that V.’s had been given up by his mother in the Pyatigorsk maternity hospital, that since July 2005 the boy had been living with Mr S. and Ms Ch., the latter being his legal guardian, that the materials of the case contained V.’s parents’ written statements renouncing their authority over the boy and expressing their consent to his adoption, and that a local childcare authority had carried out a relevant check and had given a favourable opinion to V.’s adoption by Mr S. and Ms Ch.
The court thus granted them the full adoption of V. and ordered that V.’s surname and patronymic be changed to reflect Ms S.’ surname and first name respectively.
It also ordered that V.’s place of birth be changed to that of Zheleznovodsk.
This judgment was not appealed against and became final on 15 April 2006.
3.
The applicant’s attempts to obtain information about V. and further developments According to the applicant, on 10 March 2006 he received a copy of Ms Ch.’s request for depriving him of his parental authority over V. lodged in the context of the proceedings for V.’s adoption by Mr S. and Ms Ch.
A copy of a statement allegedly written and signed by him on 3 September 2004 was also enclosed.
According to the applicant, he never consented either orally or in writing to renounce his parental authority over V. or to his adoption and, until that moment, he remained unaware of the fact that his son was alive.
On 12 March 2006 the applicant, in his submission, arrived at a district court in an attempt to obtain information about V. There he was allegedly told that Ms Ch.
had withdrawn her request.
He then found her and Mr S. at the address of their domicile, and they confirmed that his son V. was alive and stated that they were his legal guardians.
According to the applicant, Mr S. and Ms Ch.
showed him the boy but strongly opposed all his attempts to establish any contacts with V. On 17 May 2006 the applicant requested the Zheleznovodsk Custody and Guardianship Agency (отдел опеки и попечительства г. Железноводска) to revoke Ms Ch.’s guardianship over V. and order V.’s transfer to his family.
The Agency refused the request, with reference to the judgment of Zheleznovodsk Town Court of 4 April 2006 approving the adoption of V. by Mr S. and Ms Ch.
On 18 May 2006 the applicant complained to the Zheleznovodsk prosecutor’s office.
He stated that he had been unware that his son was alive and had been admitted to a foster home after his birth, and that he had never made any written statements renouncing his parental authority over the boy or consenting to his adoption.
The applicant then described his unsuccessful attempts to recover his son and requested the prosecutor’s office to carry out a check into the fact of falsification of his written statement of 3 September 2004, to lodge a request on his behalf for re-opening of the proceedings on V.’s adoption and review of the relevant judgment due to newly discovered circumstances, and to institute on his behalf court proceedings for restoration of original information about V.’s parents, date and place of birth.
In the context of a check instituted by the Zheleznovodsk prosecutor’s office at the applicant’s request, a handwriting expert examination had been ordered and carried out.
In a report of 27 May 2006 the expert confirmed that the statement of 3 September 2004 had been written and signed by a third person and not by the applicant.
These materials were transferred to the Pyatigorsk Office of the Interior for a further check.
The latter established that it was the applicant’s wife, Ms I.
Kh., who had written the statement of 3 September 2004 instead of him and forged his signature.
On 30 June 2006 the Pyatigorsk Office of the Interior decided not to institute criminal proceedings against Ms I. Kh.
for “forging of an official document”, as she had written the impugned document immediately after childbirth, and therefore being in a vulnerable state, particularly in view of the doctors’ statement to the effect that the boy had been very weak and would not survive.
The decision also stated that the document in question was “a personal statement” rather than an “official document issued by a State body or authority”.
4.
Refusal of the application of Mr S. and Ms Ch.
for V.’s adoption and other developments On 9 June 2006 the Zheleznovodsk prosecutor’s office applied, on the applicant’s behalf, to the Zheleznovodsk Town Court with a view to having the proceedings on V.’s adoption by Mr S. and Ms Ch.
re-opened and the relevant judgment reviewed.
As appears, the court proceedings were then re-opened and the Zheleznovodsk Town Court examined anew an application of Mr S. and Ms Ch.
for V.’s adoption.
In a judgment of 12 July 2006 the court rejected the application.
The court referred to relevant provisions of national law stating that biological parents’ formal explicit consent to their child’s adoption was indispensable.
It further noted, with reference to the findings of the check carried out by the Pyatigorsk Office of the Interior, that it was the applicant’s wife who had written a statement of 3 September 2004 instead of him, and that the applicant, himself, had never given his consent to V.’s adoption by third persons, nor had he been deprived of his parental authority or declared legally incapacitated.
The court concluded that, in the absence of the applicant’s explicit consent to V.’s adoption by third persons, there were no grounds to grant the relevant request of Mr S. and Ms Ch.
Mr S. and Ms Ch.
appealed against the judgment of 12 July 2006.
They pointed out, in particular, that they had been upbringing V. in their family since July 2005, that the applicant had come to them in March 2006 in order to see the child as he had doubted that the boy was his son, and that they had informed the applicant at that moment that their request for V.’s adoption had been pending before a court.
However, before the judgment of 4 April 2006 on V.’s adoption by Mr S. and Ms Ch.
had been taken, the applicant had not made any attempts to join the proceedings, and it was not until 17 May 2006 that he had finally applied to a prosecutor’s office.
They further argued that Ms I. Kh.
had, in fact, not participated in the present proceedings when they had been pending before the first-instance court, having attended only one hearing, which, in their view, was indicative of the absence of her interest in V.’s faith.
They also argued that the applicant’s allegation that V. had been born at approximately six months gestational age, that is long before term, and had therefore been very week stood in conflict with an extract from V.’s medical chart (выписка из истории развития) stating that at birth he had weighed 3,150 kg and measured 50 cm, those being characteristics of a baby born at term.
With reference to those discrepancies, Mr S. and Ms Ch.
expressed their doubts that the applicant and his wife were V.’s biological parents and stated that the first‐instance court could have resolved those discrepancies by examining relevant medical documents from the Pyatigorsk maternity hospital and by ordering a genetic expert examination, but it had failed to do so.
On 23 August 2006 the Stavropol Regional Court upheld the judgment of 12 July 2006 on appeal, rejecting the arguments of Mr S. and Ms Ch.
The court noted, in particular, that the scope of their claim was limited to their request for V.’s adoption, and that they had never challenged before the first-instance court the authenticity of V.’s birth certificate, or the fact that the applicant was his biological father.
Moreover, Mr S. and Ms. Ch.
had not requested the first-instance court to order any expert examinations or to obtain any additional documents on demand, nor had they submitted any additional documents themselves to corroborate their allegations.
Against that background, the Stavropol Regional Court saw no reasons to order genetic expert examination or to question the authenticity of V.’s birth certificate.
It further noted that it had no grounds to doubt the fact that the applicant and Ms I. Kh.
were V.’s biological parents, and considered it proven, with reference to the facts as established by the first-instance court, that the applicant had never renounced his parental authority over V. The court concluded therefore that there were no legal grounds to grant the request of Mr S. and Ms. Ch.
for V.’s adoption.
According to the applicant, after the court decisions refusing V.’s adoption by Mr S. and Ms Ch.
had been taken, he applied to them in an attempt to get his son back.
Mr S. and Ms Ch.
refused to return the boy, with reference to the administrative decision of 26 July 2005, by which Ms Ch.
had been appointed V.’s legal guardian and which was still in force.
The applicant then requested the Zheleznovodsk Custody and Guardianship Agency to have the decision of 26 July 2005 invalidated.
On 21 September 2006 the head of Zheleznovodsk, with reference to the decision of the Pyatigorsk Office of the Interior dated 30 June 2006 and the judgment of 12 July 2006, invalidated the decision of 26 July 2005 and revoked Ms Ch.’s guardianship in respect of V. Ms Ch.
challenged that decision before the courts.
On 23 March and 25 May 2007 respectively the first-instance and appellate courts upheld the administrative decision of 21 September 2006.
On 3 October 2006 a civil registration authority issued a repeated birth certificate for V. The applicant and Ms I. Kh.
were indicated respectively as his father and mother.
V.’s patronymic, Z., corresponded to the applicant’s first name, and V.’s surname reflected his mother’s maiden surname.
At some point in 2008 Ms Ch.
seized a court with a request to alter V.’s birth certificate by excluding a record about his father, the applicant, and by replacing his patronymic with “Vasilyevich”.
On 24 April 2008 the Pyatigorsk Town Court left Ms Ch.’s request without examination, stating that she was neither V.’s parent nor his legal guardian, and therefore had no standing to lodge such requests.
On 13 October 2006 Ms I. Kh.
sent to the Zheleznovodsk Custody and Guardianship Agency a written statement, in which, with reference to Article 129 of the Russian Family Code, she revoked her consent to V.’s adoption given by her on 3 September 2004 on behalf of herself and on the applicant’s behalf.
The Agency received the letter on 17 October 2006, but it does not appear that any reply was given to Ms I. Kh.
According to the applicant, he made numerous attempts to recover his son, but Mr S. and Ms Ch.
refused to return V. and obstructed all contacts of the applicant and his wife with the boy.
5.
Proceedings for deprivation of the applicant and Ms I. Kh.
of their parental authority over V. a. Ms Ch.’s claim In December 2006 Ms Ch.
brought a civil claim against the applicant and Ms I.
Kh., seeking to have them deprived of their parental authority over V. Ms Ch.
argued that the applicant and Ms I. Kh.
had neglected their parental duties in respect of V., had never inquired about his faith, had never participated in his upbringing and education, and had never supported him financially.
She further argued that Ms I. Kh.
had never intended to take care of the boy, as she had given him up in the Pyatigorsk maternity hospital immediately after his birth, and, moreover, had attempted to get rid of her unborn baby.
In the latter respect, Ms Ch.
referred to an extract from V.’s medical chart, which allegedly stated that Ms I. Kh.
had made an attempt to abort her pregnancy at its thirtieth week using oxytocin.
Ms Ch.
also insisted that the fact that V. had been diagnosed with perinatal encephalopathy and light anaemia had not been a reasonable excuse for abandoning the baby at the maternity hospital, as those diseases had been curable.
At the current moment, V. was healthy and fit, as confirmed by a paediatrician’s certificate, and that fact could be attributed to the efforts of Mr S. and Ms Ch., who had replaced V.’s biological parents in taking care of him.
Ms Ch.
further submitted in her claim that the applicant had come to her place with his elder son in order to find out whether V. resembled him, and asked her to give him V.’s photograph, which, in Ms Ch.’s submission, had made her realise that the applicant had doubted that he was V.’s biological father.
She added that although the applicant had known at that time that the proceedings for V.’s adoption by her and Mr S. had been pending, he had not joined those proceedings.
b.
Proceedings before the first-instance court On 7 February 2007 the Predgorny District Court of the Stavropol Region (“the Predgorny District Court”) examined Ms Ch.’s claim on its merits.
The court heard Ms Ch., Ms I.
Kh., the applicant and a number of witnesses.
i. Ms Ch.’s statements At the hearing Ms Ch.
upheld her claim and reiterated her arguments.
She also stated that she had cohabited with Mr S. for thirteen years and that they had registered their marriage in order to adopt a child.
They had never applied to a maternity hospital to that end, or had ever applied to be put on a list of persons seeking children for adoption.
According to Ms Ch., she had visited a foster home, upon an invitation from her neighbour, who worked there, and she had seen the then ten-month’ old V. whom she had liked and immediately decided to adopt.
Ms Ch.
further stated that in the foster home she had received an extract from V.’s medical chart, which stated that at birth he had weighed 3.150 kg, had measured 50 cm, his head circumference had equalled 36 cm and he had been given 7-8 of Apgar score.
It had also stated that during pregnancy he had suffered from chronic hypoxia and phetoplacental insufficiency.
The personnel of the foster home had also informed Ms Ch.
about V.’s biological parents, having indicated their full names, as well as about diseases V. had had while in the foster home.
Ms Ch.
went on to note that V. had had certain health problems and, after she had taken him from the foster home, she had ensured that he had undergone necessary medical treatment with the result that the state of his health had noticeably improved.
Ms Ch.
further alleged that she had not met V.’s parents prior to March 2006, when the applicant had been summoned to a court in the context of the proceedings instituted by her and Mr S. for V.’s adoption.
The applicant then had visited them at their home address and had allegedly stated that on 2 September 2004 he had taken his wife to the maternity hospital for abortion and that he had been unaware that the baby had survived.
Mr S. and Ms Ch.
had shown the applicant the statements of 3 September 2004 in which Ms I. Kh.
and himself had consented to V.’s adoption; the applicant had recognised his wife’s signature but stated that his signature had been falsified.
According to Ms Ch., the text of the statements had not provoked any visible indignation or surprise of the applicant.
He had also asked to show him V.’s photographs and stated that the boy had resembled his elder son T.N.
He had then taken the photographs and left.
Ms Ch.
went on to state that the next time the applicant had come with his sister, his elder son and his father.
Mr S. and Ms Ch.
had invited them to come in.
They had looked at V. and the applicant’s sister had filmed him by her mobile telephone camera.
When they had been leaving, they had offered yogurts and a teddy bear.
Ms Ch.
had refused stating that V. was allergic for yogurts and that he had already had two teddy bears.
In Ms Ch.’s opinion, the applicant and his family members had come to find out who the child had looked like.
Ms Ch.
insisted that during his first visit the applicant had not recognised V. as his son, and that he had been thinking for two months before taking any action.
She also recited the developments in V.’s case, and, in particular, referred to the court and administrative decisions by which legal guardianship and adoption of V. had been granted and then revoked.
Ms Ch.
confirmed that the boy continued living with her and Mr S. According to her, on 21 September 2006, when her guardianship in respect of V. had been revoked, the applicant had come to her home address in her absence, as she and V. had been in another town at that moment, and had threatened “to handcuff” Mr S. for deliberate retention of his son.
In Ms Ch.’s submission, the applicant had also visited their domicile with an official of a custody and guardianship agency, and they had threatened Ms Ch.’s mother-in-law.
ii.
Ms I. Kh.’s statements Ms I. Kh.
disagreed with Ms Ch.’s claim and contested her allegations.
She stated, in particular, that so far she had had no possibility to see her son V. and to bring him up.
She insisted that she had signed her written consent to V.’s adoption without understanding the meaning of her actions at that moment, and that at present she would like to return her son, but Ms Ch.
kept retaining him.
As to the events of 2-3 September 2004, the applicant’s wife explained that by the moment she had got pregnant with V., she had already had two children, and that none of her pregnancies, including that with V., had ever been surveyed by doctors.
She had not had any problems with her pregnancy with V. and, according to her, had never attempted to abort it.
It was for the first time during the present proceedings that she found out that in V.’s medical chart had allegedly been written that she had made such an attempt using oxytocin.
Ms I. Kh.
continued that, according to her estimation, she had been six months pregnant when on 2 September 2004, while working in her garden, she had felt pain in lower abdomen and contractions and had started bleeding.
Her husband had then taken her to the maternity hospital of Pyatigorsk.
According to Ms I.
Kh., she had been admitted to the hospital at around 3-4 p.m. She had then been assisted by doctors, in particular by doctor B., who had been in charge of her.
The doctors administered her intravenous and intrauterine injections and drips.
As appears, anaesthesia had been used, as she had been sleeping during the labour, and therefore could not remember exactly at what time her baby had been born, though she had been awaken at the moment of delivery.
When the baby had been born Ms I. Kh.
had not heard him crying.
She had been told that it had been a boy and that he had been hardly breathing and had not been crying.
Ms I.
Kh., in her submission, had been worried about the baby’s health.
Doctor B. had told her that the childbirth had been premature, that the baby had been pre-term and would not survive, and that, in fact, Ms I. Kh.
had had “a miscarriage rather than childbirth.” According to the applicant’s wife, the medical staff had not told her the baby’s weight or height and had not even shown her the boy, stating that he had been kept in an incubator.
In reply to her request to let her see the baby, doctor B. had replied that “there [had been] nothing to look at”, that the baby had been premature and weak.
Instead, Ms I. Kh.
had been asked to fill in papers for the baby’s adoption.
According to the aplicant’s wife, the childbirth had taken place during the night time, and she had been feeling very bad because of a loss of blood, she felt dizziness and faint.
Ms I. Kh.
went on to note that the next morning, at 8 a. m. doctor B. had invited her to her office and had stated that the baby had still been breathing but most likely would not survive, that there had been “one chance out of thousand” that he would live.
She had then invited Ms I. Kh.
to sign certain documents, indicating her height, education, profession and occupation.
Doctor B. had stated that it was necessary for any further checks of the documents.
According to Ms I.
Kh., she had written a text, but had not realised at that moment which exactly text it had been, as she had been feeling very bad, had had dizziness and faint.
She informed doctor B. that she had been married, and doctor B. had then invited her to write a similar statement on her husband’s behalf, changing her hand-writing.
Ms I. Kh.
had written the statement and signed it, without, in her submission, understanding the meaning of her actions.
She had then taken a rest in her hospital ward until 9-10 a.m. and then called her husband on his mobile telephone.
Her husband had asked her who had been born and she had replied that it had been a boy and that she had lost him because of a miscarriage.
Ms I.
Kh., according to her, had chosen to say so to her husband because the doctors had said that the boy would not survive, and since she had wished to spare her husband because of his heart condition.
When she had been leaving the maternity hospital, she had known that the baby had been alive, but thought that he had been very weak and had been hardly breathing.
Ms I. Kh.
further stated that several days after doctor B. had come to her domicile as the maternity hospital had needed Ms I. Kh.’s medical insurance certificate.
According to Ms I.
Kh., she had inquired about the baby, and doctor B. had said the boy had not survived.
The applicant had been at home at that moment but had not heard that conversation.
Several days after doctor B. had again visited Ms I. Kh.
at home and inquired about her and the applicant’s marriage certificate’s number.
After she had obtained the necessary information, doctor B. had left.
The applicant’s wife also stated that when in March 2006 she and the applicant had received a claim for their deprivation of their parental authority in respect of V., they had been very surprised and had initially thought that there had been a misunderstanding, as in September 2005 she and the applicant had had another son, whose first name was also V. The applicant inquired at the court and then visited doctor B. who had said to him that it must be his and Ms I. Kh.’s son who had survived after “the miscarriage”.
Thereafter the applicant had visited Ms Ch., who had told him about V. and had given his photograph.
According to Ms I.
Kh., when she had seen the photograph of V., who had resembled her elder son T.N.
a lot, she had realised what a mistake she had done and had disclosed the truth to the applicant.
The latter “had nearly fainted” as he had had a heart condition.
From that moment onwards the applicant had become actively involved in V.’s faith, whereas she, herself, could not participate as her younger son Vl.
had been admitted to an intensive care unit and she had remained with him.
Ms I. Kh.
then listed the numerous steps the applicant had taken in an attempt to recover their son.
She added that in her written request of 13 October 2006 she had revoked her consent to V.’s adoption but she had never received any reply to her request from the competent custody and guardianship agency.
Ms I. Kh.
insisted that she wanted to take V. back to her and the applicant’s family and to bring him up.
iii.
The applicant’s statements The applicant disagreed with Ms Ch.’s claim and stated that V. was his and his wife’s third and desired child.
The whole family had known about Ms I. Kh.’s pregnancy.
She had never attended doctors in connection with any of her pregnancies.
He and his wife had estimated that she had been 5.5‐6 months pregnant when she had felt ill and he had accompanied her to the Pyatigorsk maternity hospital.
According to the applicant, doctor B. had said to him that the baby had had no chances of survival and that they had to save the mother, and with that aim to provoke a miscarriage.
The applicant had volunteered to bring additional medicines, if necessary, to save both the mother and the baby, but doctor B. had stated that his wife would have a miscarriage.
The applicant had also been told not to wait and to go home.
The applicant, in his submission, had accepted the situation and had relied on the doctors.
He had then left the maternity hospital.
The next day his wife had called him and had asked to take her home, stating that she had lost the baby and that it had been a boy.
At home the whole family had mourned the loss of the baby.
The applicant further stated that in March 2006 he had found out from the documents received from a court that his son had been alive.
His wife had then told him that she had not wished to traumatise him, and therefore had told him that the baby had died, as she had been persuaded that was the case as the doctors had told her so.
The applicant added that he had no doubts regarding his paternity and insisted on V.’s return to his and Ms I. Kh.’s family.
iv.
Doctor B.’s statements Doctor B. stated that she was the head of the observation unit of the Pyatigorsk maternity hospital.
There usually were approximately 3,000 childbirths per year, therefore she was unable to remember any of her patients.
Doctor B. further stated that she had not met Ms I. Kh.
before, but added that it was likely that she just did not remember her.
She furthermore could not recall whether she attended Ms I. Kh.’s childbirth.
She could have recalled everything, if the medical record of Ms I. Kh.’s labour and delivery (медицинская карта родов) had been preserved, but that file had been lost in 2005.
She further stated that she could not confirm any of the statements Ms I. Kh.
had made before that court, as she did not remember anything.
In particular, Ms B. insisted that she did not remember whether she had ever obtained Ms I. Kh.’s consent to her baby’s adoption, or any other documents from her.
According to doctor B., she had no right or necessity to decide with the maternity patients on questions concerning renouncement of their parental authority or adoption of their newborn babies.
Any such statements could only be made to the chief medical officer (главный врач), of the hospital, who was entitled to certify the authenticity of such statements.
Doctor B. also denied giving Ms I. Kh.
any information about her baby’s state of health.
She insisted that she never gave any such information, as it fell to a paediatrician’s to give information on newly born babies’ health.
Ms B. did not exclude that Ms I. Kh.
could mistakenly have believed that her son had been dead.
As for the information regarding Ms I. Kh.’s alleged attempt of abortion with the use of oxytocin, Ms B. noted that, in principle, such information could have been copied to the child’s medical file from the mother’s medical file, or could have been inserted there after a conversation with Ms I. Kh.
Doctor B. went on to point out that a baby born at 5.5-6 months of gestational age could be viable.
She also stated that after childbirth a new mother remained in a state of stress for up to 42 days and may even have a short-term amnesia.
In doctor’s B. opinion, by virtue of her condition after childbirth, Ms I. Kh.
might not remember something, or might remember only certain details.
She added that a mother’s state of stress after childbirth may go unnoticed by the others, and therefore it was not unlikely that Ms I. Kh.’s written statement had been accepted from her despite her condition.
Ms B. further stated that she had requested the chief medical officer of the hospital to give her the medical record of Ms I. Kh.’s labour and delivery, and that the officer had told her that the file had been lost.
She confirmed that initially she had avoided appearing in court since Mr S. and Ms Ch.
had been putting pressure on her in an attempt to make her testify in their favour, and more precisely to make her state that Ms I. Kh.
had deliberately abandoned her baby.
Lastly, doctor B. stated that she did not remember and therefore was unable to deny or confirm whether she had met the applicant in March 2006 and whether she had said to him that V. was his child.
v. Other witnesses Representatives of the Zheleznovodsk Custody and Guardianship Agency and of the Custody and Guardianship Agency of the Predgorny District supported Ms Ch.’s claim, stating that deprivation of the applicant and Ms I. Kh.
of their parental authority would be in V.’s best interests.
They submitted, in particular, that the child had been placed in a foster home after he had been left without parental care, that since July 2005 he had been living in Ms Ch.’s family and that the state of his health had considerably improved.
They also indicated that they had sought a psychologist’s opinion and that the latter had opined that an abrupt change of home and established family ties was undesirable and could provoke V.’s psychological trauma.
The applicant’s father and sister stated that they had been aware of Ms I. Kh.’s pregnancy.
They gave positive references to the applicant’s family and stated that the whole family had wanted that child.
The applicant had then told them that Ms I. Kh.
had had a miscarriage.
After they had found out that V. had been alive, they all were looking forward to the end of the judicial procedures and his return to their family.
The applicant’s acquaintance R. gave positive references to the applicant’s family and stated that the applicant had told him that he and Ms I. Kh.
had been expecting the third child, and that the whole family had wanted the child.
In Mr R.’s submission, the applicant had said to him that it did not matter to him whether that would be a boy or a girl, as he had already had a girl and a boy.
The applicant had then told him that his wife had had a miscarriage.
vi.
Examination of documentary evidence The Predgorny District Court also examined documentary evidence.
It observed, in particular, the documents submitted by the Pyatigorsk maternity hospital, which included V.’s personal file (анкета ребенка) drawn up at the hospital, a medical report attesting the state of his health after birth, and written statements of 3 September 2004 containing V.’s parents’ consent to his adoption.
The court observed that, according to the boy’s personal file, Mr V. Vasilyevich Kh.
– the boy’s surname corresponded to Ms I. Kh.’s surname, whereas his patronymic was “Vasilyevich” rather than “Zavenovich”, which would reflected the applicant’s first name – had been born on 2 September 2004, weighing 3,150 kg and measuring 54 cm.
The medical report attested to foetal hypoxia and light disorder of cerebral circulation.
The file contained information about the baby’s mother, including her address, whereas information about his father was missing.
The file cited “a written consent to adoption” as the ground for the baby’s adoption.
The court further noted a number of defects in the file.
It stated, in particular, that the file contained no information of the person who had filled it in; that information about the baby’s father was missing; that the baby’s patronymic was erroneously indicated as “Vasilyevich” whilst it should be “Zavenovich”; that the file did not indicate who of the parents and when had filed a statement with “a consent for adoption”; that the file did not indicate who had certified that statement; that the file contained no date on which it had been filled in nor its number; that the file contained no information about V.’s birth certificate, its serial number, or date of issue, and that the baby’s photograph was not enclosed to the file.
As for the medical report, the court noted that it also erroneously indicated “Vasilyevich” rather than “Zavenovich” as V.’s patronymic, that it did not mention the official position of a member of the medical commission who had drawn it up and that the official stamp was missing.
The court also noted that both written statements of 3 September 2004 had been certified by the then chief medical officer of the Pyatigorsk maternity hospital, Ms K. It went on to note that it had not received any other documents from the Pyatigorsk maternity hospital, as, according to letter no.
1192 of Ms Z., the chief medical officer of the Pyatigorsk maternity hospital, dated 8 December 2006, “the original of the medical record of labour and delivery of Ms I.
Kh., who on 2 September 2004 [had given] birth to an alive boy, [had not been] found in the archives, as it [had been] lost in 2005.” The court further stressed once again that a copy of the initial birth certificate was missing from the materials of the case, and that the child’s patronymic had been distorted and written incorrectly “Vasilyevich” rather than “Zavenovich”.
The court then stated that, since the original of the medical record of Ms I. Kh.’s labour and delivery had been lost, it was impossible to establish the source of the document submitted by the claimant, Ms Ch.
– the extract from V.’s medical chart stating that Ms I. Kh.
had made an attempt to abort her pregnancy at its thirtieth week using oxytocin – an allegation categorically denied by Ms I. Kh.
The court therefore found that piece of evidence to be inadmissible.
vii.
Judgment The Predgorny District Court noted that it was undisputed by the parties and found it established that the applicant and Ms I. Kh.
were V.’s parents.
It further noted that the judgment of 12 July 2006, as upheld on 23 August 2006, by which the claim of Mr S. and Ms Ch.
regarding V.’s adoption had been rejected, had established that the applicant had never given his consent to V.’s adoption, this fact being thus res judicata and was not to be proved once again.
The Predgorny District Court therefore found it established that the applicant had not neglected his parental duties with regard to his son V., since he had simply not known that his son had been born alive.
The court went on to note that as soon as the applicant had found out that his son was alive, he had started taking steps with a view to getting the child back to his family.
The court further noted with regard to Ms I. Kh.
that “she did not dispute the fact that, being in a fragile condition and being misled by the medical personnel of the Pyatigorsk maternity hospital as to the state of her newborn son’s health, she had written a statement in which she had expressed her consent to her son’s adoption”.
At the same time, the court took into consideration the fact that after childbirth Ms I. Kh.
had been in a fragile condition, that on 13 October 2006 she had retracted her statement and that, at the moment, she intended to take the child to her family and to bring him up.
The court noted that Ms I. Kh.’s fragile condition after childbirth had “indirectly” been confirmed by doctor B.’s statement to the effect that a new mother could remain in a state of stress for a period of up to 42 days after childbirth and that this state could remain unnoticed by others.
The court went on to note that deprivation of parental authority was a measure of last resort and that it could only be applied to parents flagrantly neglecting their parental duties.
The court further considered that no such guilty conduct on the part of the applicant or Ms I. Kh.
had been proven in those civil proceedings.
It further noted that the circumstances for V.’s transfer to a foster home and then to the family of Mr S. and Ms Ch.
for adoption had changed, as his biological parents had found out that the boy was alive and they wished to bring him up themselves, for which they had priority over any other person.
In so far as the representatives of the two Custody and Guardianship Agencies argued that deprivation of the applicant and Ms I. Kh.
of their parental authority would be in the child’s best interest, the court noted that the law not only protected the interests of a child but those of parents as well.
The court also considered that the positive references given to Mr S. and Ms Ch., their caring attitude towards V., their contribution in improvement of his health and his successful development, their attachment to the child, whom they loved and perceived as their own, the child’s attachment to them should not be opposed to the interests and rights of the biological parents protected by law.
The court further observed that the applicant and his wife had positive references, good living conditions, could financially support their child, wished to bring him up and insisted on his return to their family.
It thus concluded that there were no grounds to grant Ms Ch.’s claim and rejected it.
c. Proceedings before the appellate court On 21 March 2007 the Stavropol Regional Court quashed the first‐instance judgment on appeal and sent the case for a fresh examination.
The Stavropol Regional Court held that the first-instance court’s conclusions had been based on assumptions and speculations and that the evidence to which the Predgorny District Court had referred had been unreliable.
In particular, the Predgorny District Court’s conclusion that Ms I. Kh.
had been misled by the medical personnel of the Pyatigorsk maternity hospital regarding the state of her baby’s health had not been supported by evidence.
Furthermore, in the Stavropol Regional Court’s view, Ms I. Kh.’s statement to the effect that the doctors of the Pyatigorsk maternity hospital had told her that her baby had been alive but had been very week and would hardly survive stood in conflict with the applicant’s allegation that the doctors had told him that his wife had had a miscarriage.
The Stavropol Regional Court noted that that conflict had not been resolved by the Predgorny District Court.
The Stavropol Regional Court further stated that neither Ms I. Kh.
nor the applicant had taken any steps to find out the circumstances of childbirth, to apprise themselves of the state of their newborn son’s health, and to render help and support to their baby, having left him in danger several hours after his birth.
In the court’s view, with necessary degree of care, the parents could and should have found out that their baby had been alive, that he had been born in term with good weight and only slight health problems.
The Stavropol Regional Court went on to note that, in the absence of any proof of unlawfulness of the actions of the medical personal of the Pyatigorsk maternity hospital, the first-instance court had failed to establish what the reasons had been for the applicant’s refusal to take the baby from the maternity hospital, and how it was possible that, being the father of three children, the applicant had mistakenly believed in the unfortunate outcome of childbirth to such an extent that he had taken no actions with a view to apprising himself of his newborn son’s faith.
The Stavropol Regional Court thus concluded that the applicant’s statement to the effect that he had been unaware that his son had been alive had not been corroborated by any evidence and that therefore V.’s transfer to his biological parents was not in the child’s interests.
d. Supervisory review proceedings On 28 May 2007 the Presidium of the Stavropol Regional Court (“the Presidium”) quashed the decision of 21 March 2007 by way of supervisory review, noting that the appellate court’s findings in that decision did not correspond to the circumstances of the case.
In particular, the Presidium referred to the results of the check carried out by the Zheleznovodsk prosecutor’s office and the court decisions of 9 June and 23 August 2006 and stressed, that contrary to the relevant findings of the appellate court, it had been clearly established that the applicant had not been aware of the fact that his son had been born alive, that he had never given his consent to his adoption, and that as soon as he had found out that V. had been alive, the applicant had started taking steps with a view to returning the boy to his family.
In the latter respect, the Presidium referred to the applicant’s numerous applications to courts and administrative bodies.
It also noted that on 13 October 2006 Ms I. Kh.
had revoked her consent to V.’s adoption and had officially informed the relevant Custody and Guardianship Agency thereof.
The court stated that under the relevant law, she had a right to retract her consent at any moment before the adoption was confirmed by a court.
The Presidium also referred to a court’s special ruling taken in respect of the Head of the Health Department of the Administration of Pyatigorsk, which had criticized the shortcomings surrounding the way in which Ms I. Kh.’s consent to her son’s adoption had been obtained, the shortcomings in V.’s personal file and the fact that the medical record of Ms I. Kh.’s labour and delivery had been lost.
The Presidium observed that the aforementioned ruling had not been disputed, or annulled or found illegal, whereas the circumstances established in that ruling stood in clear conflict with the relevant findings of the appellate court.
The Presidium also found that the appellate court’s conclusion that V.’s transfer to the applicant’s family would not be in his interests had not, in fact, corresponded to the subject-matter of the claim in the present case, which only concerned deprivation of Ms I. Kh.
and the applicant of their parental authority.
The Presidium further noted that the applicant’s family had been positively characterised, both he, his wife and their three children had positive references, the relations within the family were friendly, the living conditions were good and complied with all necessary requirements, therefore V. would be safe in that family.
Deprivation of the applicant and his wife of their parental authority over V. would entail a breach of his rights, interrupt the child’s kinship with his biological parents and limit his communication with them, his siblings and grandparents.
The Presidium thus annulled the decision of 21 March 2007 and ordered that the first-instance judgment of 7 February 2007 should be upheld.
6.
Further developments In a letter of 20 March 2003 the Zheleznovodsk Custody and Guardianship Agency informed the applicant, in reply to his relevant request, that on 19 March 2007 Ms Ch.
had been invited for an interview so that she provided time for contacts of the applicant and Ms I. Kh.
with their son V. The letter further stated that Ms Ch.
had refused to provide any such time.
It then recommended that the applicant should obtain a court order for an access to his child.
On 2 July 2007 the applicant and Ms I. Kh.
lodged a written complaint to the police, stating that Ms Ch.
unlawfully retained their son V. and refused to return him to their family.
They sought to have criminal proceedings against Ms Ch.
instituted in that connection.
On 10 July 2007 the Zheleznovodsk Office of the Interior decided not to institute criminal proceedings, with reference to the absence of the constituent elements of a crime in Ms Ch.’s actions.
The decision stated, in particular, that after the administrative decision revoking Ms Ch.’s guardianship in respect of V. had been confirmed by the courts at two instances, a representative of the Zheleznovodsk Custody and Guardianship Agency had visited Ms Ch.’s domicile on three occasion in an attempt to take V. away and return him to the applicant’s family, but each time Ms Ch.
and V. had been absent.
Mr S. had explained that his wife and son had gone “to the seaside”.
At the moment, V. continued living with Mr S. and Ms Ch.
The decision further referred to the civil proceeding for V.’s return to his family instituted by the applicant which were pending at the moment, and concluded that the circumstances of the case revealed no criminal actions on Ms Ch.’s part, and that the case should be resolved in a civil procedure.
The applicant repeatedly sought assistance of administrative bodies in returning V. In particular, he lodged relevant requests with the Zheleznovodsk Custody and Guardianship Agency on 11 September 2006, 29 May, 4 and 22 June, 27 July 2007, 8 February 2008, and those with the Head of Zheleznovodsk on 7 November 2006, 21 January and 4 February 2008.
7.
Proceeding concerning V.’s return to the applicant’s family On 24 September 2006 the applicant brought civil proceedings before Zheleznovodsk Town Court.
He sought “removal of obstacles in exercising his parental authority over V. and in V.’s right to live and to be brought-up in his family.” a.
First round of proceedings By a judgment of 13 July 2007 the Zheleznovodsk Town Court granted the applicant’s claim and ordered V.’s recovery from Ms Ch.
and his return to the applicant’s family.
The court noted that Ms Ch.
was no longer V.’s guardian and therefore had no legal grounds to retain him.
With reference to Article 54 of the Russian Family Code, the court further stated that each child had a right to know his or her parents, to live together with them and to be brought up by them, unless it ran counter the child’s interests.
The court then held that that it could not run counter to V.’s interests to return to his father’s family, where his siblings lived.
On 26 September 2007 the Stavropol Regional Court quashed that judgment on appeal and returned the case to the Zheleznovodsk Town Court for a fresh examination.
The appellate court noted that, in accordance with various international instruments on protection of children’s rights and relevant domestic law, including the Russian Constitution, priority should be given to the protection of rights and interests of a child whereas parents’ rights and interests should only be taken into account.
In the appellate court’s view, the Zheleznovodsk Town Court had breached those provisions and had failed to establish the circumstances of the case and to secure the best interests of the child.
The Stavropol Regional Court further noted that “[the applicant’s] claim on the child’s recovery was not in conformity with the aforementioned legal provisions, as [the Russian] law did not provide for such a claim as a recovery of a child”.
Therefore, in the court’s view, the Zheleznovodsk Town Court should have examined a question whether the applicant’s claim had any basis in the national law, but had failed to do so, with the result that the law in the present case had been applied incorrectly and “[the applicant’s] rights had been restored in a manner which was not provided for in the domestic law”.
The Stavropol Regional Court further stated that the first-instance court should have established what the child’s best interest required in the present case, and whether the boy’s transfer to his biological parents would be in his best interests.
In particular, the first-instance court should have given its assessment of the fact that Ms I. Kh.
had given her baby up in the maternity hospital, and had not expressed any further interest in his faith, and the fact that she only participated in the current proceedings as the third person and not as a claimant.
The appellate court also noted that there were four children of different ages in the applicant’s family, and therefore the first‐instance court should have assessed a possibility of V.’s psychological and other adaptation in such a family, given that for three years he had been living in a family where he had been the single child.
The Stavropol Regional Court considered that the first-instance court had failed to take into account the relevant considerations to that end, and that its finding to the effect that V.’s return to his biological family would be in the boy’s interests had been unmotivated, unfounded and unsubstantiated by any evidence.
The Stavropol Regional Court also noted that since the dispute at hand concerned upbringing of a child, a competent Custody and Guardianship Agency should be involved in the proceedings.
That Agency should have carried out an examination of the child’s living conditions and those of the persons who pursued a claim for the child’s upbringing, have submitted a report on the results of that examination and have given its opinion on the substance of the dispute on the basis of the report.
The court further noted that the Custody and Guardianship Agency which had taken part in the proceedings had not carried out such examination nor had it provided its opinion.
The Stavropol Regional Court also pointed out that, in the proceedings before the first-instance court, a representative of the Custody and Guardianship Agency had supported the applicant’s claim on V.’s transfer to his family, whereas in the appellate proceedings another representative of the same Agency supported Ms Ch.’s request to quash the first-instance judgment, which stood in conflict with the Agency’s position during the proceedings before the first-instance court.
The Regional Court considered that such inconsistent position of the Custody and Guardianship Agency was indicative of the absence of any well-founded and motivated opinion on the part of the Agency regarding the substance of the dispute at hand.
b.
Second round of proceedings i.
Reports on the applicant’s family’s living conditions In the context of the new round of the proceedings, the Custody and Guardianship Agency of the Predgornyy District (a childcare authority at the place of the applicant’s domicile) and the Zheleznovodsk Custody and Guardianship Agency (a childcare authority at the place of domicile of Mr S. and Ms Ch.)
examined the applicant’s family’s living conditions and drew up their relevant reports on 29 January and 11 March 2008 respectively.
In the report of 29 January 2008 on examination of the applicant’s private house the Custody and Guardianship Agency of the Predgornyy District stated, in particular, that the applicant’s family included himself, Ms I.
Kh., their four minor children and the applicant’s parents.
The report further stated that the relations within the family were ‘friendly, based on respect”, and that the parents supported the children, brought them up and took care of their education.
The children, according to the report, went to school regularly and performed well in their studies.
The grandparents and the children in the family were unanimous in expressing their wish to have V. returned to their family.
The report then stated that the family was well-off and described the living conditions, stating, in particular, that the sanitary condition of the house was good, that it was clean, well-maintained and had everything necessary for living.
In the report of 11 March 2008 the Zheleznovodsk Custody and Guardianship Agency described the living conditions in the applicant’s private house and listed the members of his family who lived there.
The report mentioned that the applicant’s daughter M. N. and son T. N. “were taken aback” when being asked about their sleeping places and then explained that they slept “where they wanted, in the sitting room”.
The report also mentioned that when T. N. was asked what he had for lunch, he answered that he had “chips”.
The report concluded that the living conditions were good and met all sanitary requirements.
It did not describe the relations within the family.
ii.
The parties’ requests during the proceedings before the Zheleznovodsk Town Court In the new round of proceedings, Ms Ch.
requested the court to order a physiological expert examination of V. In a written motion of 31 March 2008 the applicant objected to that request.
He stressed that his son was a minor, and therefore, being V.’s father, he represented the boy by virtue of Article 64 of the Russian Family Code.
The applicant further stated that the results of any psychological expert examination would not be objective and that it would be unable genuinely to establish what was in V.’s best interest, given that the boy was influenced by Ms Ch.
who for the last two years had been preventing any contacts between V. and the applicant and his family.
It appears that this motion was eventually rejected by the court.
At the hearing the applicant also requested the court to call and examine his daughter M. N., his son T. N., his sister L. and a psychologist, Ms Sh.
The court called and examined the applicant’s daughter and son, but rejected his request in the remaining part.
The court also rejected the applicant’s request that certain documentary evidence be obtained, stating that the evidence requested by the applicant was unnecessary.
iii.
Examination of witnesses The Zheleznovodsk Town Court heard the parties and a number of witnesses.
The applicant maintained his claim, reiterating that he had been trying to get V. back to his family since the moment he had found out that his son was alive.
In particular, he kept asking Ms Ch.
to return V. to him during all the period that had elapsed after the judgment of 12 July 2006, by which Ms Ch.’s request for V.’s adoption had been refused.
That judgment had been upheld on appeal.
Ms I.
Kh., who acted as a third party in the proceedings, maintained the applicant’s claim and stated that her only wish was to take V. back to her family and that she wanted to bring him up.
Mr S. and Ms Ch.
disagreed with the applicant’s claim and argued that the child had been living with them since 26 July 2005, that they were very attached to him and he was attached to them to the extent that even a short separation from them would provoke the boy’s fever and his state would only return to normal after he would resume contact with them.
A representative of the Zheleznovodsk Custody and Guardianship Agency considered that the interests of the child should prevail.
She referred to a report on V.’s psychological examination (see below) which stated that the boy’s transfer to a new family, to adults and children of different ages whom he did not know, would provoke his physiological trauma.
She argued therefore that V. should remain with Mr S. and Ms Ch.
Ms K., who at the time when V. had been born had been the chief medical officer of the Pyatigorsk maternity hospital, stated that on 2 September 2004 Ms I. Kh.
had given birth to a full-term baby whom she had then given up, having written a statement to that effect.
According to Ms K., Ms I. Kh.
had brought a similar statement from her husband and had explained that he “felt too timid” to come to see Ms K. and had preferred to wait in the car but Ms I. Kh.
had brought his statement and his passport.
Ms K., in her submission, had accepted the statement from Ms I. Kh.’s husband, without establishing the identity of the person who had written it.
The car, in which the presumed father had been sitting, had stood at a distance of 10 metres and, on the face of it, it had appeared that the person inside the car resembled the applicant.
Ms K. added that during the period of V.’s stay in the maternity hospital neither the applicant nor Ms I. Kh.
had expressed any interest in his fate.
Ms G., a nurse of the Pyatigorsk maternity hospital, confirmed that during V.’s stay in that hospital his parents had not expressed interest in his fate.
Witnesses L.M., I.V., O.A.
and A.M., who were friends or acquaintances of Mr S. and Ms Ch., and Ms I.M., Mr S.’s sister, all gave very positive references to Mr S. and Ms Ch., describing them as good, kind, loving and caring people, deeply attached to V. The witnesses also stated that V. was very attached to Mr S. and Ms Ch.
Lastly, the Zheleznovodsk Town Court examined the applicant’s elder children, M. N. and T. N., who stated that they were happy, that the relations within their family were good and friendly.
T. N. added that he was dreaming of his bother V.’s return to their family.
iv.
Examination of documentary evidence The Zheleznovodsk Town Court also examined documentary evidence.
It referred, in particular, to the register of patients’ admission to the Pyatigorsk maternity hospital for the period between 12 August to 6 September 2004, which stated that Ms I. Kh.
had been admitted on 2 September 2004 at 2 p.m. and that at 9.15 p.m. she had given birth, without any complications, to an alive boy, having no signs of asphyxia, weighing 3.150 kg and measuring 54 cm.
The register also stated that Ms I. Kh.
had left the hospital without the baby on 3 September 2004.
The court further examined V.’s personal file adduced by the Pyatigorsk Custody and Guardianship Agency.
Its description of the document in question was very similar to that of the Predgorny District Court in the judgment of 7 February 2007.
The court also noted that in reply to its relevant request to the Pyatigorsk maternity hospital to provide the original of the medical record of Ms I. Kh.’s labour and delivery and V.’s medical chart, the hospital had stated that those documents could not be found, and that in 2004 the patients’ and babies’ medical files had been kept in the office of the chief medical officer, Ms K. The court went on to examine the two written statements of 3 September 2004 concerning the biological parents’ consent to V.’s adoption.
The court noted, in particular, that one of the statements had been signed by Ms I. Kh.
and the other one had been signed by the applicant, and that both signatures were certified by the chief medical officer, Ms K., who had signed both statements and stamped them with the official stamp of the Pyatigorsk maternity hospital.
The court further quoted the decision of the Pyatigorsk Office of the Interior dated 30 June 2006 not to institute criminal proceedings against Ms I. Kh.
The court also referred to a certain “entry of birth no.
1433 of 15 September 2004”, according to which an alive boy was born on 2 September 2004 from mother [I.
Kh.]
and father Zaven Vazgenovich Naltakyan, the applicant.
The court did not indicate what the source of the “entry” was, and which body, or authority had issued it.
The court further noted that on the basis of a “document of the formally approved standard”, the serial number of which was 07 AP 190063, and which had been issued by the Pyatigorsk maternity hospital on 2 September 2004, V.’s birth certificate bearing no.
I-DN 718545 had been issued.
V.’s surname reflected his mother’s surname and V.’s patronymic reflected the applicant’s first name.
The court then examined three medical reports, without mentioning the dates on which those had been drawn up.
One of the reports was written by a paediatrician practicing in the vicinity of the domicile of Mr S., Ms Ch.
and V. It provided details on the state of V.’s health for the period between 5 August 2005, the date of V.’s first visit, and 27 February 2008, the date of his latest visit.
Among other things, the report referred to an attempt of abortion with oxytocin at the foetus’s gestational age of thirty weeks but did not clearly indicate the source of that information.
Another report was produced by a neurologist and stated that V. had been receiving relevant treatment since November 2005, that his state had improved and his development was adequate for his age.
The report stated at the same time that the boy remained excitable, restless and hyperactive, and still needed neurological treatment.
One more report was drawn up by a psychologist and stated that V. was a sociable and easy-going child with well-developed speech, and that his intellectual development was adequate for his age.
According to the report, the boy constantly needed and claimed attention of the adults, particularly from Ms Ch.
who was referred to in the report as V.’s mother.
The report also attested to the boy’s particular attachment to Ms Ch.
and indicated that he got stressed if she left him even for a short while.
The report attested to the increased level of V.’s agitation and indicated that he constantly needed attention, care, support and tender and caring attitude.
The court went on to note that, pursuant to its order, comprehensive psychological and psychiatric examinations by a commission of experts had been performed in respect of V., Mr S. and Ms Ch.
Report no.
785 of 4 June 2008 stated that the level of physiological and social development of V. corresponded to his age.
It further described the level of V.’s development and particular features of his personality in more detail, stressing, in particular, the boy’s particular need of emotional comfort and of protection from outside factors.
The report also indicated that the child was currently going through his first age crisis, where his mother’s emotional support was essential.
V. was attached to Mr S. and Ms Ch., called them “daddy” and “mummy” and had constant need of contact with them.
Therefore, according to the report, V.’s transfer to a new family, to unknown adults and children, would provoke his psychological trauma.
Reports nos.
786 and 787 of 11 June 2008 portrayed Mr S. and Ms Ch.
respectively as emotional, caring, empathetic people, devoid of any aggressiveness.
The Zheleznovodsk Town Court pointed out that similar expert examinations had been ordered in respect of the applicant and Ms I.
Kh., but they avoided the examination by failing to appear before an expert body.
The court further noted a report of the Zheleznovodsk Custody and Guardianship Agency.
According to the report, it was better for the child to stay with Mr S. and Ms Ch., as he had got accustomed and deeply attached to them and called them “daddy” and “mummy”.
The Agency’s report also relied on the report of 4 June 2008 on V.’s psychological and psychiatric examination, which stated that his transfer to a new family, to unknown adults and children, would provoke his psychological trauma.
The report further stated that the living conditions of Mr S. and Ms Ch.
were good, met all necessary sanitary requirements and were suitable for V.’s living.
The boy had orderly and stable life in their family.
Lastly, the court referred to the report of 11 March 2008 on the examination by the Zheleznovodsk Custody and Guardianship Agency of the applicant’s family’s living conditions.
The court did not mention the report of 29 January 2008 on the examination of the applicant’s living conditions by the Custody and Guardianship Agency of the Predgorny District.
v. Judgment On 9 July 2008 the Town Court rejected the applicant’s claim in full.
In its judgment it referred to the aforementioned witness statements and documentary evidence.
The Town Court then held as follows: “... the court has established that [the applicant’s] family consists of his parents, his spouse [Ms I.
Kh.
], and their four children of various ages ... who are used to living and being brought up in “a family community”, whereas, from 25 July 2005 until the present moment, [V.] has been living in a family where he is the only child and all the time and attention of the persons in charge of him are being devoted to him alone.
Thus, the moral and other personal characteristics of [Mr S. and Ms Ch.]
are high and enable them to bring [V.] up; the relations between [Mr S. and Ms Ch.]
and the child are good; [Mr S. and Ms Ch.]
take measures to support and bring [V.] up, take care of his health, take into account his interests; there is mutual understanding between [Mr S. and Ms Ch.]
and the child.
[Mr S. and Ms Ch.]
have created all necessary surroundings, including living conditions, for the child’s upbringing and development; [they] have sufficient income, their working hours do not exceed a normal duration of a working day; [they] can spend enough time on [V.’s] physical and moral development.
Assessing the foregoing, the court is also taking into account the fact that [the applicant’s] claim concerns the child’s transfer to the family consisting of the biological father – [the applicant] – the biological mother – [Ms I.Kh.]
– and four children of different ages; the fact that this family’s member – the child’s biological mother – has not submitted any claim on the child’s return, and has been taking part in the proceedings in the present case only as a third person ...; her behaviour during her pregnancy – an attempt to abort it, which she is not denying.
The court does not find reasons for granting [the applicant’s] claim to recover the child from [Mr S. and Ms Ch.]
and to order his transfer to the family, where this child’s mother does not wish it; to hold otherwise would be in conflict with the child’s interests, which, by virtue of the international law and the Russian family law, are the priority for the court”.
vi.
Proceedings before higher courts The applicant appealed against the judgment of the Zheleznovodsk Town Court.
In his appeal submissions he complained, in particular, about the Zheleznovodsk Town Court’s refusal of his request to call and examine his sister, who, in his view, could have given explanations about the relations within his family, and a psychologist, Ms Sh., who was an expert in the field of psychology of children and could have given her assessment relevant for the case.
He further complained that a psychiatric expert examination of his son V. had been carried out despite his objection.
The applicant also argued that the court’s decision ordering that examination had contained unsubstantiated information regarding his wife’s alleged attempt to abort her pregnancy.
In this respect, the applicant referred to the judgment of the Predgorny District Court of 7 February 2007 which had rejected an extract from V.’s medical chart as inadmissible evidence, with reference to the fact that the original of the medical record of Ms I. Kh.’s labour and delivery had been lost.
The applicant further complained that in its judgment the Zheleznovodsk Town Court had not referred to all the documents it had examined during the hearing, in particular, the judgment made no reference to the final and binding court decisions taken previously.
The applicant argued that the first-instance court had only based its judgment on the report of V.’s psychiatric examination, and that it had not taken into account the fact that the applicant had been trying for more than two years to take V.’s from the persons who had been unlawfully retaining him.
The applicant also argued that the Town Court had referred to an opinion of a representative of the Zheleznovodsk Custody and Guardianship Agency, even though its representative had no command of the situation, would not answer a number of relevant questions and had changed the opinion at each hearing.
On 26 August 2008 the Stavropol Regional Court upheld the judgment of 9 July 2008 on appeal.
It rejected the applicant’s argument that the information about Ms I. Kh.’s alleged attempt to abort her pregnancy should have been rejected as inadmissible evidence.
The appellate court stated in this respect that the information in question had been taken from documentary evidence that met the requirements of the relevant domestic law, and that the fact that the original of the medical record of Ms I. Kh.’s labour and delivery had been lost did not rule out the admissibility of other pieces of evidence, such as an extract from V.’s infant medical chart from the Pyatigorsk maternity hospital, his medical chart from a children hospital, where he had been transferred from the Pyatigorsk maternity hospital, and his personal file from the foster home.
The appellate court held that the Zheleznovodsk Town Court had carefully examined the circumstances of the case, and in particular had given a thorough assessment of the conduct of the applicant and Ms I. Kh.
at the moment of V.’s birth and their subsequent conduct, and had rightly concluded that V.’s transfer to his father was not in the child’s best interests.
The Stavropol Regional Court reiterated the first-instance court’s findings that Ms I. Kh.
had given birth to a healthy baby boy and that, shortly thereafter, she had written similar statements, on behalf of herself and on the applicant’s behalf, in which she had expressed a wish to abandon the baby in the hospital, “those statements having been duly certified, as required by law”.
The Stavropol Regional Court further noted that the Zheleznovodsk Town Court had rightly taken into account the conduct of the applicant, who, at the moment of childbirth, had not taken any steps to get information regarding the state of his baby’s health or to clarify the circumstances of the supposedly unfortunate outcome of his wife’s labour and delivery; he had furthermore not taken any steps to provide assistance and support to the baby.
The Stavropol Regional Court thus stressed that V.’s mother had given him up “deliberately and on purpose”, whereas the applicant’s conduct could be explained by his supposed unawareness of the state of V.’s health.
In the latter respect, the Stavropol Regional Court noted that the applicant’s supposed unawareness had been the result of his own inactivity.
According to the Stavropol Regional Court, with necessary degree of care, the applicant could and should have found out that the baby had been born on term, that he had been alive, had had normal weight and only insignificant health issues.
The court concluded saying that such conduct of the parents at the moment of V.’s birth, deliberate on the part of the biological mother and negligent on the part of the biological father, the fact that they had abandoned him in danger, had not corresponded to V.’s interests.
It further noted that the subsequent conduct of V.’s biological parents had also been duly assessed by the first-instance court, which had taken into account the fact that throughout V.’s stay in the Pyatigorsk maternity hospital, foster home and further on neither the applicant nor Ms I. Kh.
had ever expressed any interest in V.’s fate, or had visited him, or provided any financial support.
The applicant had only started taking steps with a view to returning V. after Ms Ch.
had filed a claim for his deprivation of his parental authority, whereas the child’s mother, Ms I.
Kh., had never attempted to have her rights with respect to V. restored, had not lodged at any moment any claim for protection of V.’s interests.
During the examination of her complaint by the appellate court, Ms I. Kh.
stated that she did not intend to lodge any separate claim for V.’s return, as she considered the actions taken by her husband to that end to be sufficient.
The appellate court also noted that the Zheleznovodsk Town Court had rightly taken into account the refusal of the applicant and Ms I. Kh.
to undergo a psychiatric expert examination when rejecting the applicant’s claim.
In the light of the foregoing, the Stavropol Regional Court concluded that the applicant’s right to bring V. up stood in conflict with the child’s best interests.
On 26 January 2009 the Supreme Court of Russia refused to institute a supervisory review procedure upon the applicant’s request in the absence of any relevant grounds.
8.
Proceedings concerning contact rights By a decision of 24 September 2008 the Head of Zheleznovodsk again appointed Ms Ch.
as V.’s guardian.
On 10 March 2009 the applicant, his wife and his father lodged a claim against Ms Ch.
seeking to have obstacles in their contacts with V. removed and to have the extent and manner of their contact rights with V. determined.
The applicant and Ms I. Kh.
pointed out, in particular, that they had never been deprived of their parental authority with respect to V., and that they had on numerous occasions requested Ms Ch.
to let them see V., and to establish specific hours for that purpose.
They also had sought assistance of a local custody and guardianship official, who stated that resolution of that situation could only be possible through a court procedure, in view of the fact that Ms Ch.
had categorically refused to allow any such contacts between V. and his biological relatives.
Before the court the applicant, his wife and his father maintained their claim and requested the court to determine V.’s current location at the address of Mr S. and Ms Ch.
as the place for their contacts with him.
Ms Ch.
and a representative of the Zheleznovodsk Custody and Guardianship Authority objected to the claim, stating that any contacts with the biological relatives may inflict psychological trauma on V. In a judgment of 16 April 2009 the Zheleznovodsk Town Court dismissed the claim.
The court noted that Ms Ch.
had been appointed V.’s guardian by the decision of the Head of Zheleznovodsk of 24 September 2008, and that therefore by virtue of Article 148.1 of the Russian Family Code she had all right to represent and protect the child’s interests.
It also stated that the same Article established that a guardian shall not obstruct the contacts between a child and his or her biological parents or other relatives, unless such contacts were in conflict with the child’s interests.
The Zheleznovodsk Town Court went on to refer to report no.
785 of 4 June 2008 reflecting the results of V.’s psychosocial and psychiatric expert examination carried out in the context of the proceedings on the applicant’s claim for V.’s return to his family.
The court quoted, in particular, the report’s findings that the child was currently going through his first age crisis, where his mother’s emotional support was essential; that V. was attached to Mr S. and Ms Ch., called them “daddy” and “mummy” and had constant need of contact with them, and that V.’s transfer to a new family, to unknown adults and children, would provoke his psychological trauma.
The court also cited report no.
787 of 11 June 2008, in so far as it stated that Ms Ch.
was not predisposed to aggressive behaviour, and that among her values she gave priority to family relations.
The court further “took into account the fact that the applicant and Ms I. Kh.
avoided the expert examination which had been ordered in their respect, having failed to appear to the expert institution”.
The Zheleznovodsk Town Court’s went on to describe the conduct of the applicant and Ms I. Kh.
at the moment of V.’s birth, citing, word for word, the decision of the Stavropol Regional Court of 26 August 2008.
It reiterated, in particular, that, with necessary degree of care, the applicant could and should have found out that the baby had been born on term, that he had been alive, had had normal weight and only insignificant health issues.
The Zheleznovodsk Town Court continued as follows: “Such conduct of the parents – deliberate on the part of the biological mother and negligent on the part of the biological father – at the moment of the baby’s birth, the fact that they abandoned him in danger, did not correspond to the child’s interests, in spite of the fact that later the biological mother, [Ms I.
Kh.
], revoked her consent to the child’s adoption, and the fact that the consent to the child adoption written on behalf of [the applicant] was written by an unidentified person and not by him.
Besides, the court gave its assessment of the actual conditions in which the child is being brought up, the nature of relations between the adoptive parents, the child’s attitude towards them, the living conditions of the adoptive parents, and a possibility of their positive or negative impact on the child.
These circumstances were established during the court proceedings and were reasons for the dismissal of [the applicant’s] claim.
As regards the question of a possibility of determining the manner of contacts between [V.] and his biological relatives – the claimants in the present case – the court is taking into account the aforementioned circumstances, which lead to the fact that [V.] is being currently under [Ms Ch.]
guardianship; psychological particularities of the child’s development; [V.’s] attitude towards [Ms Ch.]
as his own mother; the opinion of the claimants who insist that the child’s contacts with his biological relatives will not provoke his psychological trauma, as they were his kinsfolk.
Therefore, the entirety of the evidence submitted by the parties, as analysed in the light of the provisions of the international and Russian family law, which are of priority to the court, the court finds no reasons to grant the claim of [the applicant, Ms I. Kh.
and the applicant’s father] to eliminate obstacles in their contact with [V.] and establish the manner and extent of their contacts with him.” The applicant, Ms I. Kh.
and the applicant’s father disagreed with the judgment and lodged an appeal complaint.
They argued, in particular, that the Zheleznovodsk Town Court’s findings about the conduct of the applicant and Ms I. Kh.
in respect of V. had been unfounded.
They pointed out that it had never been established that any of them had ever caused any physical or psychological harm to the child.
They further questioned the reasonableness of the Town Court’s reliance on report no.
758 of 4 June 2008 on V.’s psychological and psychiatric examination, given that, according to the report, V.’s transfer to a new family, to unknown adults and children, would provoke his psychological trauma, whereas in their claim they had only sought to have their contacts with V. established, in a manner and to the extent that was not detrimental to V.’s health.
The applicant and his wife also pointed out that they had never been deprived of their parental authority in respect of V., and therefore it was unclear to them why in its judgment the first-instance court had referred to certain “adoptive parents”.
They argued, more generally, that by refusing to establish any contacts of V. with them, the Zheleznovodsk Town Court had breached V.’s right to know his biological parents and other relatives, to have their care and support.
On 16 June 2009 the Stavropol Regional Court upheld the judgment of 16 April 2009 on appeal.
It stated, in particular: “The first-instance court resolved the dispute with due regard to the [relevant] legal provisions and the evidence, including the final court decisions, submitted by the parties in the adversarial proceedings.
It considered such a solution currently to be the best one for the child and justified by his interests.
Refusing to establish the [the claimants’] contacts with the child, the first-instance court reasonably took into account his age, state of health and other circumstances capable of influencing his physical and psychological health and moral development as well as other factors relevant for establishing adequate conditions of his living and upbringing.
Taking into account [V.’s] age of nearly five years, the first-instance court reasonably considered that his living conditions that had been formed for those years in Ms Ch.’s family could not be changed abruptly, all the more so that at this age he should live with the one whom he considered to be his mother.
It is essential that, during all those five years due to various reasons, [the claimants] had no possibility to have contacts with the child.
As the court considered, it was not in the child’s interests to establish any such contacts now.
The foregoing reveals that [the claimants] have a possibility to maintain friendly relations with the child, gradually adapting themselves to his life, to participate in taking decisions regarding his upbringing and development.
Moreover, taking into account relations of a particular nature between the claimants ... and [Ms Ch.
], it will be necessary to ensure the child’s adaptation in new circumstances, since, irrespective of the opinion of the aforementioned persons, it is in the first place the child’s interests that should be taken into account; and [those interests] would not be secured in the present case if the claimants’ contacts with the child were established.
The parental rights of [the applicant and Ms I.
Kh.]
are not infringed also because the circumstances relied on as the ground for refusal to establish their contacts with [V.] may eventually change.
It can be the case where the child reaches the age, when, by virtue of Article 57 of the Russian Family Code, it is obligatory to take into account his opinion.” B.
Relevant domestic law and practice 1.
Russian Family Code a.
Legal provision concerning protection of children’s rights Article 54 provides that every child, that is a person under the age of 18 years, has a right to live and to be brought up in a family, in so far as it can be possible, a right to know his or her parents, a right to their care, a right to live together with them, except where it is contrary to his or her interests.
Article 55 entitles a child to maintain contact with his parents, grandparents, brothers, sisters and other relatives.
By virtue of Article 57, a child is entitled to express his or her 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.
b.
Legal provisions concerning parents’ rights and obligations Article 63 provides that the parents’ right to bring up their children has precedence over such a right of any other person.
Article 64 provides that the parents act on the child’s behalf and defend the child’s rights and interests in any relations with persons or legal entities.
They act ex officio as the child’s legal representative in court proceedings.
Article 68 vests in the parents a right to seek the return of their child from any person who retains the child not on the basis of law or not pursuant to a court decision.
In case of dispute the parents are entitled to file a court claim for protection of their rights.
When examining that claim, the court, with due regard to the child’s opinion, is entitled to reject the claim if it finds that the child’s transfer to the parents is contrary to the child’s interests.
Article 69 establishes that a parent may be deprived of parental authority if he or she avoids the parental obligations, such as the obligation to pay child maintenance; refuses to collect the child from the maternity hospital, any other medical, educational, social or similar institution; abuses the parental authority; mistreats the child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse.
c. Legal provisions governing adoption and guardianship Article 129 provides that the consent of the child’s parents is required for his or her adoption.
Such consent shall be expressed in a written statement certified by a public notary, or by the head of an entity where the child, who has been left without parental care, is being held, or by a custody and guardianship agency at the place of adoption or at the place of the parents’ domicile, or it can be expressed directly in the court proceedings for adoption.
The parents are entitled to revoke their consent to adoption at any moment before a court decision on adoption is taken.
Article 148.1 provides that a legal guardian is not entitled to obstruct a child’s contacts with his or her parents and other relatives, except where it is contrary to the child’s interests.
2.
Rulings of the Supreme Court of Russia In its ruling no.
10 “On application by the courts of legislation when resolving disputes concerning upbringing of children” dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular: “... 6.
In accordance with law, the parents’ right to bring up their children has precedence over such a right of any other person (Article 63 § 1 of the Russian Family Code), and they are entitled to seek the return of their child from any person who retains the child not on the basis of law nor pursuant to a court decision (Article 68 § 1 (1) of the Russian Family Code).
At the same time, a court is entitled, with due regard to the child’s opinion, to reject a parent’s claim if it finds that the child’s transfer to the parents is contrary to the child’s interests ...
When examining such cases, the court takes into account whether there is a realistic possibility for a parent duly to bring the child up; the nature of the relations between the parent and the child, the child’s attachment towards the persons with whom he or she is actually living, and other particular circumstances relevant for securing adequate conditions of the child’s living and upbringing by his or her parents as well as by the persons whom the minor is actually living with and being brought up by.
... 8.
...
When determining the manner of access to the child of a parent [who lives separately from the child], [the court] shall take into account the child’s age, the state of his or her health, the child’s attachment to each of the parents and other circumstances that can influence the child’s physical or mental health, his or her moral development.
In exceptional cases, when the child’s communication with a parent who lives separately from him or her can inflict a damage on the child, the court, on the basis of Article 65 of the Russian Family Code which prohibits exercising the parental authority to the detriment of children’s physical or mental health or their moral development, is entitled, providing reasons for such a decision, to reject that parent’s claim to establish the manner of his or her access to the child.
It is in a similar manner that a claim lodged by the parents, who have not been deprived of their parental authority, seeking removal of obstacles in upbringing of their children, living with other persons by virtue of law or pursuant to court decision, shall be resolved ...” In its ruling no.
8 “On application by the courts of legislation when examining cases on adoption” of 20 April 2006, the Plenary of the Supreme Court of Russia stated, in so far as relevant: “... 9.
If a child has the parents, their consent is a prerequisite for adoption.
... A parent’s consent to adoption should be ascertained by a custody and guardianship agency with due regard to the requirements of Article 129 § 1(2) of the Russian Family Code, or can be expressed directly before a court in the proceedings for adoption ... ... ...
Given the precedence of the parents’ rights to bring their child up, any of them can revoke his or her consent for adoption given earlier, irrespective of motives that prompted them to give such a consent, before a court decision on adoption is taken.” COMPLAINTS The applicant complains under Articles 6 and 8 of the Convention about the domestic courts’ decisions by which his claim for return of his son V. to his family was dismissed.
He alleges, in particular, that the proceedings that ended with those decisions were unfair, that the domestic courts rejected his relevant motions, whilst granting Ms Ch.’s motion to carry out V.’s psychological and psychiatric expert examination, despite his objection and the fact that she had no legal status under domestic law to request any actions to be performed with respect to his son.
He further argues that the court decisions in question were arbitrary as they were mainly based on the report of 4 June 2008 reflecting the results of the aforementioned expert examination.
The applicant alleges that the findings of the expert examination were unreliable given the fact that V. has been living for all his life with Mr S. and Ms Ch.
who obstructed any contact of V. with him and his family, therefor, quite predictably, the boy has been very attached to Mr S. and Ms Ch.
and has not known the applicant or his family at all.
In such circumstances, in the applicant’s view, the domestic courts should not have based their decisions of the report of that expert examination, but should have rather critically assessed it in the light of other pieces of evidence.
The applicant also asserts that the length of the proceedings in question – almost two years – was unreasonable, given the urgent nature of his claim.
He thus complains that the courts’ refusal to return V. to his family was disproportionate and constituted an unjustified interference with his and his son V.’s right to respect for the private and family life.
The applicant further complains under the same Articles that he was denied any access to his child, as the Russian courts refused to secure contacts between him and V. The applicant alleges that the relevant civil proceedings were unfair and manifestly arbitrary.
He complains, in particular, that although in the judgment of 7 February 2007, as confirmed on appeal by the decision of 28 May 2007, it was established that the applicant had not neglected his parental duties in respect of V., as he had been unaware of the boy, and that there had been no guilty conduct on the part of the applicant and his wife, this fact thus being res judicata, in the proceedings concerning his contact rights, the courts reassessed the facts on the basis of the same evidence and reached opposite conclusions, stating that the applicant’s conduct was negligent and his wife’s conduct was deliberate when they abandoned their baby in the maternity hospital.
The applicant further complains that the domestic courts arbitrarily referred to the expert report of 4 June 2008, stating that V.’s transfer to a new family, to unknown adults and children, would provoke his psychological trauma, although he only sought to have his contacts with V. established, in a manner and at the location convenient for the child.
The applicant complains that the domestic courts, in fact, only assessed V.’s personality on the basis of the aforementioned report, Ms Ch.’s personality and the relations between V. and Ms Ch., but failed to address the issues of the applicant’s right to see, support and bring his son up.
Thus, in the applicant’s view, there has been a violation of his and his son V.’s right to respect for their private and family life.
The applicant complains under Article 13 that he has had no effective remedies in respect of any of the aforementioned violations.