CASE OF MAGOMADOVA v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra
5. The applicant was born in 1974 and lives in Moscow. 6. On 10 November 2009 the applicant gave birth to a son, I., whose father was E., her partner. 7. Following their separation in November 2010, the applicant and E. agreed that I. would live with the applicant and E. would visit him regularly. 8. On 22 October 2013 E. took the boy to Grozny in Chechnya. 9. The applicant followed them to Grozny, where she attempted to visit her son, but was prevented from doing so by E. 10. On 18 February 2014 the applicant applied to the Leninskiy District Court of Grozny (“the District Court”) for a residence order under which I. would live with her. She submitted that I. had lived with her from birth until his removal by his father the previous October. They were very attached to each other. She had a stable income, a spacious flat, good character references, and was capable of providing I. with everything necessary in terms of his living expenses, education and development. She also complained that since the removal she had made many attempts to visit her son, but E. had prevented her from seeing him. 11. On 19 March 2014 the childcare authority of the Chertanovo District of Moscow visited the applicant’s flat in Moscow and found the living conditions there suitable for a small child. 12. On 19 March 2014 the Justice of the Peace of the 230 Court Circuit of the Chertanovo District of Moscow convicted E. of assault and battery, finding E. guilty of assaulting and injuring the applicant in August 2013, and sentenced him to a fine. 13. On 9 April 2014 the childcare authority of Grozny visited E.’s flat in Grozny and found that the living conditions there were suitable for a small child. The officials noted that E. lived in the flat with his mother A. and his son I. 14. On 15 April 2014 the childcare authority of Grozny issued its report on the case. The report reiterated that E.’s living conditions were suitable and further read as follows: “[E.] works as a senior medical officer at [a private medical clinic] and, according to him, has a monthly income of 50,000 roubles ... The child has been living with his father [E.] for a long time. His mother lives in Moscow and does not participate in his upbringing. The boy is very attached to the father and receives a lot of attention, tenderness and care. Bearing in mind the best interests of [I.], [the childcare authority of Grozny] considers that a residence order in respect of [I.] in favour of his father [E.] would not be contrary to the child’s interests and would not hinder his contact with the mother.” 15. At the hearing concerning the applicant’s application for a residence order, E. stated that I. had indeed lived with his mother until recently, but he was not at all attached to her. E. had financially supported them and had visited them regularly. The applicant was “not leading the right kind of life” and she would have a bad influence on I. 16. At the hearing, an official of the childcare authority of Grozny reiterated the findings contained in the report of 15 April 2014. 17. On 17 April 2014 the District Court dismissed the applicant’s application for a residence order in her favour. It held that a residence order in respect of I. should be granted to his father, even though he had not requested it. The court held as follows: “Article 196 § 3 of [the Code of Civil Procedure] provides that a court decides on the claims submitted by a claimant. However, the court may go beyond those claims in cases provided for by the federal law. Article 65 of [the Family Code] provides that if no agreement can be reached, a dispute between parents must be decided by a court, having regard to the child’s best interests. It follows that the court may go beyond the parties’ claims and make a residence order in respect of the child in favour of the father [E.]. The report of the childcare authority of Grozny no. ... of 15 April 2014 indicates that it is preferable to make a residence order in respect of the child [I.] in favour of his father [E.], and not to hinder his contact with his mother. The available information shows that both parents have good character references from their employers and their neighbourhoods, have permanent employment, stable incomes, and real estate. According to inspection reports, the living conditions of both parents meet the conditions necessary for raising and accommodating a child. Point 5 of Ruling no. 10 of the Plenary Supreme Court of 27 May 1998 enumerates, in line with Article 65 § 3 of [the Family Code], factors which must be taken into account when deciding on a dispute concerning a child’s residence arrangements. These factors are the child’s attachment to each of the parents and [any] siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating [proper] conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation), and other factors defining the situation in each parent’s place of residence. The Plenary Ruling stresses, in particular, that the better financial or living conditions of one of the parents cannot, in themselves, constitute a decisive reason for granting this parent’s application for a residence order in his [or her] favour. The better financial and living conditions of one of the parents (the claimant has a higher income and owns residential property in Moscow) cannot constitute a decisive reason for making a residence order in her favour and for rejecting the other parent’s claim, because there are other factors. By contrast, [the applicant] is a single mother who has one more child from her previous marriage: a daughter [R.] born on 25 June 1997. This age is most difficult, and requires special attention from the mother. Because she works, on 2 September 2013 the claimant placed I. in a [nursery school] in Moscow, despite the fact that, by her own admission, he suffers from a congenital central neural system anomaly: dysgenesis of the corpus callosum. The [factors considered] above indicate that [the applicant] is unable to create [proper] conditions for the child’s upbringing and development. Because of her work, she does not have enough time to devote to her children. These circumstances could have a disastrous impact on the child’s immature mind. It has been established that the defendant occupies a managerial position at work. His income allows him to create comfortable financial and living conditions. He lives with his mother [A.], who helps to raise [I.]. The childcare authorities’ report indicates that the child is attached to his father. The defendant has not hindered [the applicant’s] contact with the child. Under Articles 56 and 57 of [the Code of Civil Procedure], each party must prove the circumstances on which [he or] she relies in support of [his or] her claims or submissions. In the court’s opinion, the claimant has not submitted evidence in support of her arguments in [the] adversarial proceedings.” 18. The applicant appealed. She complained, in particular, that the residence order had been granted to E. at the District Court’s own initiative, as E. had never requested it. She further submitted that she was perfectly capable of providing I. with everything which he needed for his development. Her elder daughter was healthy and self-reliant and did not require any special attention. Her daughter would therefore not hinder her ability to take care of I.; on the contrary, she was of great help. The applicant had placed I. in a nursery school to give him a pre-school education and to further his social adaptation. His medical condition was not an obstacle to his attending a pre-school. The District Court’s finding that she did not have enough time to take care of her children was not based on any evidence. Neither her working schedule nor that of E. had been examined. Nor had the court explained how, within such a short period of time, I. could have become more attached to his father than his mother, with whom he had lived from birth until his recent abduction. Lastly, the applicant complained that E. was preventing her from seeing her son. That fact had been confirmed by the childcare authorities’ representative at the hearing, who had recounted E.’s assertions that he would not allow any contact between I. and his mother. 19. On 3 July 2014 the Supreme Court of the Chechen Republic upheld the judgment on appeal, finding that it was lawful, well-reasoned and justified. The judgment was based on the best interests of the child, taking into account his age, his attachment to the father, and the father’s ability to create proper conditions for his son’s upbringing and development. 20. In reply to a complaint by the applicant that she had been prevented from seeing her son for a long time, by a letter of 7 August 2014, a deputy mayor of Grozny informed her that E. had stated to the childcare authorities that he would not allow any contact between I. and his mother. 21. By a letter of 12 September 2014, the head of the childcare authority of Grozny informed the applicant that the childcare official who had issued the report of 15 April 2014 had been disciplined. An internal inquiry had established that the report was based on incorrect and incomplete information. In particular, E.’s statement that he had high income had not been checked. The finding that the applicant had not participated in I.’s upbringing was not based on any evidence. The length of time I. had lived with each of the parents had not been established. Lastly, the fact that I. had a half-sister living with his mother had not been taken into account. The report of 15 April 2014 had therefore violated the applicant’s rights and legitimate interests. 22. The applicant lodged a cassation appeal, referring, in particular, to the letter of 12 September 2014. 23. On 27 November 2014 a judge of the Supreme Court of the Chechen Republic refused to refer the applicant’s cassation appeal to the Presidium of that Court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. Relying, in particular, on the childcare authorities’ report of 15 April 2014, the judge found that it was in I.’s interests to live with his father. 24. On 5 December 2014 E. died in a car accident. I continued to live with his paternal grandmother A. 25. On 14 January 2015 the applicant applied to the Shali Town Court of the Chechen Republic (“the Town Court”), asking that I. be returned to her. 26. On 31 July 2015 the Town Court granted her application. The court held that I. should be taken away from A. and returned to the applicant, with whom he should live from that point onwards. On 12 November 2015 the Supreme Court of the Chechen Republic upheld the judgment on appeal. 27. On 24 November 2015 the Town Court issued a writ of execution. On the same day bailiffs initiated enforcement proceedings. 28. On 28 November 2015 the bailiffs visited A. and ordered that she return I. to the applicant on 3 December 2015. When the bailiffs visited A. on 3 December 2015 to take I. away, A. and I. were not at home. The bailiffs visited A. again on 5 and 25 December 2015 and 4 February 2016, but could not find her or I. The childcare authorities also visited A.’s address on several occasions, but found nobody at home. It was finally established that A. had moved out with I. 29. On 24 December 2015 the bailiffs banned A. from leaving the country. 30. On 10 February 2016 A.’s and I.’s names were put on the list of wanted persons. 31. On 28 April 2016 I. was returned to the applicant by the police. On the next day the enforcement proceedings were closed.