CASE OF CHEPELEV v. RUSSIA
No violation of Art. 8;No violation of P7-5
Christos Rozakis
6. The applicant was born in 1972 and lives in Uglich, Yaroslav Region. 7. On 22 December 1993 the applicant's wife gave birth to a daughter A. 8. In October 1995 the applicant moved from the City of Murmansk to Uglich in the Yaroslav Region to live with his parents. 9. In May 1996 the applicant's wife, still residing in Murmansk, began living together with another man, S.A., and in September 1996 brought divorce proceedings against the applicant. 10. On 12 November 1996 the competent court dissolved the marriage and awarded custody of their daughter to the mother. 11. On 21 February 1997 the applicant's former wife married S.A. On 14 December 1998 they had a child together. 12. At the end of 1998 or in the beginning of 1999 S.A. instituted proceedings before the Lenin District Court of the City of Murmansk (Ленинский районный суд г. Мурманска) seeking adoption of A. The court invited the applicant to join the proceedings as a third party and to submit his views on the matter. 13. In his reply to the adoption request, filed on 8 January 1999, the applicant stated that he was strongly opposed to the adoption. The child already had a father whom she knew. On three occasions he had sent money to support her and telegrams for holidays. Due to the distance of Uglich from Murmansk, as well as financial problems, he could not travel often to Murmansk to visit his daughter. After he had left Murmansk, he had seen her in January 1996. Furthermore, his former wife and mother-in-law had expressed their displeasure at his contacts with his daughter. 14. By a judgment of 9 March 1999 the District Court allowed S.A.'s application. The court observed: “[S.A.] has lodged with the court an adoption request. In the reasons for his request, he stated that the underage child [A.], born on 22 December 1993, is living in Murmansk ... [S.A.] has been married to the child's mother, [O.A.] since 21 February 1997. They have one child from that marriage – a daughter ... who was born on 14 December 1998. The child's father, [the applicant], has not lived with the child since September 1995. He lives in Uglich, in the Yaroslavl region. Since that time he has not participated in the child's upbringing or provided financial support. Since February 1997 the child's upbringing and financial support have been provided by [S.A.]. The child considers him her father, and is not aware of any other father. [S.A.] requested authorisation to adopt the girl, who was to be assigned the first name [A.] and the patronymic [S.], and to be registered as her father. He is aware of the consequences of adoption and the requirements made of an adoptive father. At the court hearing, [S.A] spoke in support of his requests. He asked for authorisation to adopt [the child] without her father's consent, inasmuch as, without good reason, the latter was not providing for her upbringing or financial support. Throughout the entire period in issue, her father had sent a few telegrams with greetings, and in December 1997 he had sent 1,000 roubles, which he borrowed from his wife while travelling to Uglich. [S.A.] considers that adoption would be in the child's interests. [O.A.] supported the adoption request. She explained that [the applicant] has not brought up the child since September 1995, and had left for his parents' home when the child was not yet two years old. He had left her with the child in Murmansk. He had not, and did not, provide financial support. He had sent 1,000 roubles, which he had borrowed when visiting Murmansk in 1996. She had not prevented [the applicant] from meeting the child or being involved in her upbringing. The child knew the applicant as her real father, and a father-child relationship had developed between them. She considers that adoption would be in the child's interest. A third party, the Leninsky Education Department, also supported the [adoption] request. It considers that adoption would be in the child's interest.” 15. The court held: “Having heard the parties and witness statements, examined the written evidence in the case and heard the opinion of the prosecutor, who proposed that the application be granted, the court finds the application to be lawful and deserving of being granted. Under Article 124 of the Family Code, adoption is allowed in respect of minors and only if it is in their best interest, taking account of the possibilities for securing their full physical, mental, spiritual and moral development. Under Article 130 of the Family Code, parental consent for adoption is not required where, for reasons deemed inadequate by the court, the parents have not been living together with the child for more than six months and have failed to take care of and support him or her. In the course of the judicial investigation, it was established that [A.] was born to [O.A.] and [the applicant] on 22 December 1993. At that time the parents were married to each other. In September 1995 [the applicant] decided to move his permanent residence to his parents' home in Uglich, Yaroslavl region. He did not take his wife and child with him. [O.A.] remained alone with the child in Murmansk. In September 1996 she applied to the court for a divorce. On 12 November 1996 the marriage was dissolved. The mother did not apply for maintenance payments for the child. From May 1996 [O.A. and S.A.] lived together as though married. Since that time, [S.A.] has in effect been responsible for the child's upbringing and has also supported her financially. The child calls him father, and considers him to be her father; she does not know her real father. On 21 February 1997 [O.A. and S.A.] married. [They] subsequently changed the child's surname to [A.] so that the entire family would have the same surname. November 1997: [the applicant] did not agree to changing the child's surname; a statement from him to this effect is held in her personal file at the Education Department. [O.A. and S.A.] have a child from their marriage - a daughter ..., who was born on 14 December 1998. The report on the child's living conditions states that the ... family lives in a comfortable three-roomed flat, and that all conditions have been met for the child's upbringing. She has a separate bedroom. She calls [S.A.] father. [S.A.] is described positively, and is healthy and responsible; he has not been deprived of his parental rights. The description of [S.A.] ascribes him positive personal qualities. There are no contra-indications to adoption of the child on the basis of his health. He has not previously been deprived of his parental rights. He is aware of the child's state of health. The salary report makes it clear that the applicant earns 1,700-2,000 roubles per month. From the statements of [O.A. and S.A.] it is clear that the family is financially provided for. The court has not established circumstances that would prevent the child's adoption by [S.A.] under Articles 127 and 128 of the Family Code. In November 1998 the Education Department sent [the applicant] a letter, informing him that the question of his child's adoption was being decided. [The applicant] did not submit a reply to that letter. [The applicant] was invited by the court to join the case as a third party. He was ordered to submit an opinion on the [adoption] request. [The applicant] expressed his disagreement with the child's adoption, on the ground that she had a father. He had provided financial assistance to the child insofar as he was able and had sent telegrams for holidays and festivals. He had seen the child in January 1996. He could not see her more frequently since he lived in Uglich. In the course of the judicial investigation, witnesses who were acquainted with the Chepelev family were questioned. Witnesses [L.] and [K.] explained that in September 1995 [the applicant] suddenly moved to his parents' home in Uglich. He did not take his wife and child with him. He left her with the child. She was obliged to work in order to support herself and the child. He did not provide financial assistance. Since 1996 [S.A.] in effect supported the child and brought her up. [The applicant] had not been in Murmansk since 1995. The child called [S.A.] father. She and [S.A.] had developed a father-daughter relationship. [The applicant] submitted receipts for money payments: December 1997 - 1,000,000 roubles; December 1998 - 250 roubles; 8 May, unknown year - 2,000 roubles. [O.A.] denies that 2,000 roubles were received. Receipts for the sending of holiday and festive telegrams were also submitted. In addition, in January 1996, [the applicant], having come to Murmansk on business, met the child; [O.A.] does not dispute this. [The applicant] did not participate in any other way in the child's life. [The applicant] was not prevented from communicating with his child. [The applicant's] arguments to the effect that [O.A.] and her mother had prevented him communicating with the child have not been confirmed. [O.A.'s] mother lives outside the Murmansk region. Having analysed the evidence set out above, the court concludes that [the applicant] failed to participate in his daughter's upbringing for more than six months and without good reason. In the court's opinion, 3,250 roubles as maintenance payments for a period of more than three years was insufficient for the child's upkeep. Equally, financial assistance for the child was not in itself enough. It was essential that the child's father communicated with the girl, brought her up, taught her something and took responsibility for her physical, spiritual and moral development. This was the main purpose of the parent's role. [The applicant] has not fulfilled his responsibilities with regard to the child's upbringing. [The applicant's] responsibilities have been assumed by [S.A.]. At present the child does not know her biological father. She considers [S.A.] to be her father. In the court's opinion, even although he lived outside the [Murmansk] region, [the applicant] had an opportunity to contribute to the child's upbringing in some way: he could have taken the child for the summer, or simply to stay with her for a while, or he could have sent various presents, etc. If the child's mother had prevented him communicating with the child, he would have been entitled to protect his parental rights. However, [the applicant] did not attempt to take part in the child's upbringing. In such circumstances, the court is obliged to conclude that [the applicant], without good reason, failed to participate in the child's upbringing for more than six months, and that therefore the adoption may be authorised without his agreement. With regard to the [adoption] request, it is appropriate to grant it, in that adoption of the child would be in her best interest, bearing in mind that [S.A.] is able and willing to secure the girl's upbringing and development in full.” 16. In the operative part of the judgment the court ordered: “- to agree to the adoption by [S.A.] of the underage child [A.], with conferment of the patronymic [S.] and to register the adopter as the father of the adopted child; - to leave the child's surname, first name and date and place of birth without change; - to maintain the mother's judicial relationship with the child. ...” 17. The applicant appealed against the District Court's judgment. The Murmansk Regional Court (Мурманский областной суд) dismissed the appeal and upheld the lower court's judgment on 19 May 1999. The Regional Court held: “[The applicant] appealed against the [district court's] judgment, requesting that it be set aside and that the matter be sent for a fresh examination. He referred to the court's violation of the standards of substantive law, and alleged that the court had not believed his arguments and had not taken them into consideration. Having listened to [S.A.], who asked that the [district] court's judgment be left unchanged, the prosecutor's conclusions, proposing that the appeal be dismissed, and having re-examined the evidence in the case and weighed up the appeal arguments, the bench finds the [district] court's judgment to be lawful and well-founded. The [district] court correctly identified the circumstances having legal significance and, on the basis of the established facts, reached the correct conclusion about the parties' mutual relations. In authorising the requests ..., the court correctly applied Article 124 of the Family Code (“children whose adoption is authorised”) and acted in the underage child's best interests. Convincing reasons are cited in the judgment in confirmation of the conclusions that [S.A.] is able to guarantee the child the conditions necessary for her full physical, psychological and spiritual development. The bench considers legally unfounded the appellant's arguments regarding the application to his daughter of the adoption procedure set out in the Family Code, which concerns children who have been left without parental care, as [A.] did not fall into that category of children. The appellant's arguments are based on an incorrect interpretation of the law. In accordance with Article 130 of the Family Code, the [district] court also examined the reasons why the appellant “does not live jointly with the child and has neglected her upbringing and maintenance for more than six months”, and found them to be inadequate. The reasons for the [district] court's conclusions are provided and confirmed by the evidence. The court evaluated the latter in accordance with the requirements of Article 56 of the Code of Civil Procedure. [The applicant] did not submit persuasive evidence to the first-instance court in support of his objections to the request. In addition, the statements made to the appeal court by [V.] and [the applicant] do not meet the requirements laid down for evidence in civil proceedings. Having failed to find grounds in the appeal arguments that would enable it to set aside the [district] court's judgment, and pursuant to Article 305 of the Code of Civil Procedure, the bench decides: to leave unchanged the judgment of the Leninsky District Court, Murmansk, dated 9 March 1999, and to dismiss the appeal submitted by [the applicant].” 18. On 22 March 2000 a judge of the Supreme Court rejected the applicant's request for leave to file an extraordinary appeal. 19. According to Article 124(2) of the Family Code, adoption is allowed in respect of minors and only if it is in the best interest of the child, taking account of the possibilities to secure the child's full physical, mental, spiritual and moral development. 20. Article 130 of the Family Code provides that parental consent for adoption is not necessary if, for reasons deemed inadequate by the court, the parents have not been living together with the child for more than six months and have failed to take care of and support him or her.