CASE OF KOCHEROV AND SERGEYEVA v. RUSSIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
6. The applicants were born in 1966 and 2007 respectively and live in St Petersburg. The first applicant is the second applicant’s father. 7. The first applicant has a mild mental disability. Between 1983 and January 2012 he lived in St Petersburg Neuropsychological Care Home no. 1 (“the care home”). 8. In 2007 the first applicant married Ms N.S., a resident of the same care home, who had been deprived of her legal capacity on account of her mental disability. 9. On 30 May 2007 Ms N.S. gave birth to the second applicant. At the time, the first applicant was not recognised as the child’s father. One week later the second applicant was admitted to hospital because of an infection she had contracted during the delivery. 10. On 12 July 2007 the second applicant was placed in St Petersburg Children’s Home no. 3 (“the children’s home”) as a child without parental care. 11. On 7 August 2007 the first applicant obtained a new birth certificate for the second applicant and was registered as her father. He subsequently gave his consent for her to stay at the children’s home until it became possible for him to take care of her. Throughout the second applicant’s stay there, the first applicant maintained regular contact with her. He would visit her regularly, spend time with her, take her for walks and buy her books, toys and clothes. 12. By a judgment of 31 March 2008 the Dzerzhinskiy District Court of St Petersburg refused to restore Ms N.S.’s legal capacity, relying in particular on a psychiatric examination report. It stated that, inter alia, there were conflicting, aggressive and emotionally inadequate tendencies in her behaviour. 13. On 24 September 2008 the marriage between the first applicant and Ms N.S. was declared void at the request of a public prosecutor because of Ms N.S.’s legal incapacity. 14. Following a claim by the first applicant acting on his own behalf and on behalf of the second applicant, on 6 June 2011 the Smolninskiy District Court of St Petersburg ordered the St Petersburg City Council to provide the applicants with housing under a social tenancy agreement. In November 2011 they were provided with a flat in St Petersburg. 15. In February 2012, on the basis of a medical assessment, the first applicant was discharged from the care home and moved into his flat. He has been living there ever since. 16. In November 2011 the first applicant informed the children’s home of his intention to take the second applicant into his care once he was discharged from the care home and had moved into his flat. 17. On an unspecified date the children’s home applied to the Frunzenskiy District Court of St Petersburg (“the District Court”) to have the first applicant’s parental authority over the second applicant restricted. The children’s home indicated that “the first applicant [had] never yet taken the girl from the children’s home to raise her in his family but was planning to raise the girl by himself”. In the children’s home’s view, it was not advisable to let the girl be placed in her parents’ care as her mother was legally incapacitated and thus posed a danger to the girl’s life and health, while her father could not fully exercise his parental responsibilities owing to his mental disability. In addition, the children’s home submitted, referring to information provided by its staff (see paragraph 18 below), that at the time it would be very stressful for the second applicant to be transferred to her parents’ family. 18. In the proceedings before the District Court, the children’s home produced undated reports by its staff. They stated that the second applicant had difficulties in communicating with her parents and that she felt fear, anxiety and emotional stress in their presence. 19. The first applicant relied on the following pieces of written evidence. 20. In a certificate dated 24 December 2009 the children’s home stated that the second applicant was in their care and that the first applicant and Ms N.S. regularly visited her. 21. In a certificate dated 26 May 2011 a municipal custody and guardianship agency confirmed that the second applicant was living temporarily at the children’s home at the first applicant’s request pending the allocation of social housing to him, and that he visited her there. 22. A report dated 10 October 2011 by a panel of experts contained the results of a medical psychiatric examination of the first applicant that had been carried out with a view to determining whether he could be discharged from the care home and bring up his child. The report described him as a fully focused, sociable person with reduced intelligence. According to the report, the first applicant was well presented, readily engaged himself in conversation and could read, write and do arithmetic. He was able to cook and kept his room in the care home clean and orderly. The report also mentioned that he talked about his daughter with tenderness and love, proudly demonstrated her “achievements”, showed clothes and toys bought for her, and regularly visited her. He was planning to take her home as soon as he was provided with social housing. The report also stated that throughout his stay at the care home the first applicant had worked there and saved money over several years; he would therefore be able to support his daughter financially. The report concluded that he could be discharged from the care home and that his state of health enabled him to fully exercise his parental authority. 23. A report dated 8 February 2012 by the custody and guardianship authority described the living conditions in the first applicant’s flat as appropriate for his daughter. It stated, in particular, that the flat had recently been renovated, was clean and light, had all the necessary furniture and home appliances, and that there was a sleeping place for the child with clean bed linen. There were toys and books suitable for her age, and clothes appropriate for the season. There was also a separate desk equipped for the child. 24. A letter dated 14 February 2012 issued by the care home to the District Court again confirmed that the first applicant regularly visited the second applicant at the children’s home, that he bought clothes for her and that he discussed with the management of the care home the steps he could take on his own to ensure the girl received a good upbringing, financial support, health care and an education. When concluding the social tenancy agreement for the flat allocated to him, the first applicant had himself found out which documents he would need to register the girl at kindergarten, had collected those documents and had put her on a waiting list for a place. The letter also stated that the first applicant’s medical examination had not revealed any contradictions to his upbringing of the second applicant; he was a well-organised and reliable person who had realistic life plans and a responsible attitude towards his work and obligations. His psychiatric state was stable; he did not show any signs of aggression towards others or emotional instability and did not need any medical treatment. 25. At the hearing before the District Court, the first applicant’s representative contested the children’s home’s application as groundless and discriminatory as being based on the fact that the first applicant had an intellectual disability. He argued, with reference to the adduced evidence (see paragraphs 20-24 above), that the first applicant was fully able to exercise his parental authority and take care of his daughter. He pointed out that the first applicant had recently been discharged from the care home and lived in a separate flat, where the conditions were adequate and suitable for the second applicant to live in. The first applicant’s lawyer thus insisted that the second applicant should be transferred into his care. He argued that the transfer could be performed gradually, to enable the girl to get used to the changes in her life, while the competent social care agencies could assist the first applicant in exercising his parental authority and monitor the family and, in particular, the second applicant’s life and upbringing. 26. Representatives of the children’s home (its director and the doctor in charge of the second applicant’s treatment) maintained the claim, arguing that it was premature to transfer the girl into the first applicant’s care. They stated, in particular, that the first applicant had a mental disability and had lived for all his life in a closed specialist institution; he would therefore be unable to ensure proper hygienic care of the girl or her adequate development, while it was impossible to entrust any such care to the second applicant’s mother as she was legally incapacitated. The representatives of the children’s home also stated that the first applicant’s attempts to communicate with the second applicant clearly showed that there was no contact between them. They added that when the second applicant had been told for the first time that she might be transferred into her father’s care, she had been stressed, scared and afraid of approaching him; later, when she had realised that she would be staying at the children’s home, her fears had disappeared. They also stated that at the time the second applicant’s fear of her parents had passed, and that she ceased fearing living with her family. 27. A representative of the municipal custody and guardianship authority and a public prosecutor both maintained the children’s home’s application, arguing that in view of the first applicant’s diagnosis, and the fact that his partner Ms N.S. had no legal capacity, it was not safe to transfer the second applicant into their care, and that two parents with mental disabilities would be unable to ensure the girl’s harmonious development. 28. The District Court also heard evidence from Ms O., a care home employee, who stated that whilst at the home the first applicant had lived independently in a separate room, which he had kept in order. He had bought food and cooked for himself and had been able to take prescribed medicines unsupervised if given clear instructions. He had worked part-time at the home, helping to take care of its patients, and had always been able to establish good contact with the patients and their relatives. He had been allowed to leave the care home freely and had also worked part-time outside, and at some point he and Ms N.S. had lived together at her relatives’ place for a while, and had then returned to the care home. Ms O. expressed her certainty that the first applicant would be fully able to fulfil his parental obligations and take good care of the second applicant. 29. On 20 March 2012 the District Court examined the children’s home’s claim. It observed, in particular, that the first applicant and Ms N.S. regularly visited the second applicant at the children’s home and attempted to communicate with her in the presence of the social workers, and that the first applicant had obtained a compulsory medical insurance certificate for her. The court also referred to the report of 8 February 2012 regarding the first applicant’s living conditions and noted, more specifically, that the first applicant had carried out repairs at the flat allocated to him, had equipped a room for a child, and had registered the second applicant at the address. 30. The District Court went on to note that if the children’s home’s application to restrict the first applicant’s parental authority were to be dismissed, the first applicant would be entitled to take his daughter into his care. However, the court considered that at the time it would be “undesirable” as it would not be in the child’s best interests. It noted, with reference to the reports by staff members of the children’s home (see paragraph 18 above) and similar statements by the representatives of the children’s home made at the hearing (see paragraph 26 above) that at present the girl felt anxious in the presence of her parents and had difficulties in communicating with them. The court therefore considered that “it would be stressful for the child to be placed with the family of her parents, who she had never lived with and had so far had no chance to get used to”. 31. The District Court further observed that since childhood, the first applicant had lived in specialist State institutions for people with mental disabilities and had no skills and experience in rearing children and taking care of them. In view of the fact that he had only left an institution and started living on his own in 2012, it considered that his intention to raise his daughter by himself was premature. 32. The court also observed that the girl’s biological mother had free access to the first applicant’s flat and noted that at present she had no legal capacity. It then noted that it “[had] no sufficient and reliable evidence that it would be safe for the child to remain with her parents, including her legally incapacitated mother”. 33. The District Court also referred to the first applicant’s mental disability and noted that “at present there was no reliable evidence showing that it would be safe for the girl to live with him”. In this connection, it noted that his medical diagnosis and category of disability would make him ineligible for applying to adopt a child. 34. Lastly, the District Court observed that the first applicant’s monthly income was 15,000 Russian roubles (RUB), while the monthly living wage was RUB 6,910.90 for an adult and RUB 5,461.39 for a child. As the first applicant would have to pay utility bills and, from time to time, medicine, some of which could be costly, the court considered that at the time he would be unable to provide adequate financial support for his daughter. 35. The District Court then referred to Article 73 of the Family Code and allowed the children’s home’s claim. It restricted, for the time being, the first applicant’s parental authority over the second applicant. The court added that by virtue of Article 76 of the same Code the first applicant would be able to apply to court to have the restriction of his parental authority lifted, if the reasons for the restriction being imposed ceased to exist. 36. The first applicant appealed against the judgment of 20 March 2012 to the St Petersburg City Court (“the City Court”). 37. With regard to the District Court’s first argument (see paragraph 30 above), the first applicant submitted that it would in any case be stressful for the child, who had spent four years at the children’s home, to start living anywhere else, for instance with an adoptive family. As for the children’s home’s reference to the girl’s anxiety in her parents’ presence, the first applicant argued that the reports to that end by its staff (see paragraph 18 above) were out of date and could not serve as a basis for the court’s finding, as at the hearing before the first-instance court the children’s home representatives had confirmed that the second applicant was no longer afraid of her parents or of being placed in the first applicant’s care (see paragraph 26 above). 38. The first applicant also argued that, in so far as the District Court had relied on the fact that he had lived at the care home for a prolonged period, a parent’s past or present residence in a specialist institution, there was no such ground for restricting parental authority in the Russian Family Code. Moreover, the law did not require biological parents to prove their ability to raise children or their housekeeping skills as a prerequisite for exercising their parental authority. 39. The first applicant further insisted, with reference to the District Court’s argument to that end, that the fact the girl’s mother was legally incapacitated was of no relevance to his case. Legal incapacity was a formal status and did not mean that the person was dangerous to others. In any case, the mental health of the child’s mother could not serve as a basis for restricting his own parental authority over his daughter. The first applicant also claimed that during the second applicant’s stay at the children’s home, her mother had been allowed to visit her. 40. The first applicant went on to argue that there had been no evidence at the District Court’s disposal proving that he posed any danger to his daughter. On the contrary, the relevant medical report by the experts of the care home, who had observed the first applicant for many years, revealed that his mental condition had not impaired his ability to fulfil his parental responsibilities (see paragraph 22 above). 41. Lastly, the first applicant alleged that the District Court had erred in establishing his income, which in fact exceeded the living wage in St Petersburg. Referring to the Court’s judgment in the case of Saviny v. Ukraine (no. 39948/06, 18 December 2008) and the relevant provisions of the United Nations Convention on the Rights of Persons with Disabilities, he also submitted that his income could not be a decisive element in the decision to restrict his parental authority. 42. In his oral submissions before the City Court, the first applicant argued that if the children’s home’s claim was rejected, the transfer of the second applicant into his care could be gradual to enable her to adapt psychologically to her new life in the family. 43. On 17 July 2012 the City Court upheld the judgment of 20 March 2012 on appeal. It repeated the reasoning and conclusions of the District Court, stating that they were correct and accurately reflectedconsidered that the first applicant “had not adduced convincing evidence proving the absence of a real risk to the second applicant’s life, health and adequate upbringing” if she was transferred into her father’s care. It also noted that the first applicant was not precluded from seeking an annulment of the restriction of his parental authority in the future, should the relevant circumstances change. 44. On 31 January 2013 a St Petersburg City Court judge returned without examination a cassation appeal by the first applicant against the court decisions of 20 March and 17 July 2012, as he had failed to enclose a duly certified copy of the judgment of 20 March 2012. He did not attempt to pursue the cassation proceedings any further. 45. After the present application was communicated to the respondent Government, they submitted information on factual developments in the case. 46. In particular, by a judgment of 20 September 2012, the Zelenogorskiy District Court of St Petersburg restored, with reference to a psychiatric report, Ms N.S.’s legal capacity. The judgment entered into force on 25 October 2012. 47. On 15 November 2012 the first applicant remarried Ms N.S. 48. By an order of 9 January 2013 the children’s home established rules concerning the admission of visitors. According to the Government, on the basis of that order the first applicant regularly and without any limitations visited the second applicant there. 49. On an unspecified date the first applicant brought civil proceedings against the children’s home in the District Court of St Petersburg, seeking to have the restriction of his parental authority over the second applicant lifted. He argued, in particular, that one of the grounds for imposing that restriction had been the second applicant’s anxiety and fear she had felt in his presence and her unwillingness to live with him. He pointed out that at present the second applicant had no fear of her parents, that she had developed an affective attitude towards him, considered him as her father and was ready to live with him. He also pointed out that since February 2012 he had been living on his own and maintaining a household and that he was employed and had a stable income. He also submitted that the legal capacity of the second applicant’s mother, Ms N.S., had recently been restored. In the first applicant’s view, therefore, there was no reason to continue to restrict his parental authority over the second applicant which prevented him from taking her from the children’s home. 50. A representative of the children’s home confirmed in court that the first applicant regularly visited the second applicant, that close emotional ties had formed between them and that the girl missed her father when he left. He was therefore of the opinion that it would be in the second applicant’s interests to lift the restriction on the first applicant’s parental authority and transfer her into his care. Representatives of two district custody and guardianship agencies and a public prosecutor supported the first applicant’s application. 51. On 8 April 2013 the District Court gave its judgment. It took into account the parties’ arguments and observed, as had been submitted by a representative of the children’s home, that the first and second applicants had developed close emotional ties, that at present the girl felt comfortable and calm in her father’s presence and that she missed him whenever he left the children’s home. It also observed that from February 2012 onwards the first applicant had been living independently in a separate flat, where the second applicant was also registered. The court noted that the conditions were good and suitable for the second applicant to live in. It also had regard to the fact that the first applicant was employed and had received positive references from his place of work and place of residence. 52. The District Court further noted that the first applicant had a stable monthly income of approximately RUB 19,000. The living wage being RUB 7,352 for a working adult and RUB 5,802.50 for a child, the court considered that he was fully able to ensure the second applicant had adequate financial support. The court went on to note that the legal capacity of Ms N.S., who freely visited the first applicant’s flat, had by that time been restored and that the first applicant had himself submitted a medical report dated 5 March 2013 which confirmed that he was fully able to take care of his child. 53. The District Court therefore concluded that the restriction of the first applicant’s parental authority was no longer justified, as the reasons it had relied on in its previous judgment of 12 March 2012 were no longer valid. With reference to Article 76 of the Russian Family Code, the court thus allowed the first applicant’s application and ordered that the restriction of his parental authority over the second applicant be lifted and that she be transferred into his care. The judgment was not appealed against and entered into force on 17 May 2013. 54. On 20 May 2013 the first applicant took the second applicant from the children’s home to his home address, where she has been living ever since.