THIRD SECTION

DECISION

Application no. 36701/13 Oleg Aleksandrovich KAROVASHKIN and Viktoriya Aleksandrovna ALEKSANDROVA against Russia

The European Court of Human Rights ( Third Section), sitting on 10 December 2019 as a Committee composed of:

Georgios A. Serghides, President, Erik Wennerström, Lorraine Schembri Orland, judges,

and Stephen Phillips , Section Registrar ,

Having regard to the above application lodged on 6 May 2013,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Mr Oleg Aleksandrovich Karovashkin and Ms Viktoriya Aleksandrovna Aleksandrova, are Russian nationals who were born in 1970 and 1988 respectively and live in Volsk.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background events

3 . The applicants live in an unregistered partnership and are the parents of A., born in 2009, D., born in 2011, V., born in 2014, and An., born in 2015. The two youngest children were born after the events described below.

4 . On 6 July 2012 the Volsk District Court of the Saratov Region (“the Volsk District Court”) deprived the applicants of their parental authority over A. and D. The court established that the applicants regularly drank to excess and grossly neglected their parental obligations. In particular, the court observed that the applicants were indifferent to the life of their two children, did not pay due attention to the children ’ s needs and their state of health, and took no care of them, which was particularly necessary given the children ’ s very young age. The court further noted that the applicants did not follow basic hygiene requirements with respect to A. and D., gave them unsuitable food for children of that age, and lived in appallingly unsanitary conditions. As a result, the children were scruffy, sick and dirty; D., who was nine months old at the time, had rashes, sores, parasitic worms, diarrhoea, and viral infections affecting the eyes and the upper respiratory tract. Moreover, the applicants regularly put their two sons in life-threatening circumstances by leaving them unattended in the street or at home. As a result, their younger son had once nearly strangled himself with the chain of his dummy, and their elder son had remained in the street without warm clothes in wintertime. The court therefore found that the applicants should be deprived of their parental authority and ordered the children ’ s transfer to State care. It also ordered the applicants to pay child maintenance for their support.

5 . Pursuant to the judgment of 6 July 2012, A. and D. were placed in a foster home and an infant orphanage respectively.

6 . On 10 September 2012 a justice of the peace of Circuit no. 4 of the Volsk District of the Saratov Region found the second applicant guilty of failure to fulfil her duties in respect of the upbringing of minors, combined with cruel treatment of minors, and sentenced her to 240 hours ’ mandatory work. That judgment became final on 21 September 2012.

2. Proceedings for reinstatement of parental authority and return of the children

(a) Proceedings before the first-instance court

7 . On 17 December 2012 the applicants brought a claim before the Volsk District Court, seeking reinstatement of their parental authority in respect of their two sons, and the latter ’ s return to them. They claimed that they had changed their conduct and way of life, had ceased drinking alcohol, had found employment and had a stable income allowing them to support their children financially. In the latter respect, the applicants pointed out that they had made regular child-maintenance payments pursuant to the judgment of 6 July 2012, and had no arrears in that respect. They had a place of residence with all necessary conditions suitable for the children ’ s upbringing and development. They cared about their children, regularly visited them in the relevant State institutions, and brought clothes, toys, fruit and sweets to them. The applicants insisted that their situation had improved and that they were now fully able to assume responsibility for their children and to bring them up on their own.

8 . On 24 January 2013 the Volsk District Court examined the case.

9 . The court heard the applicants, who maintained their claim. It also heard two representatives of the State institutions in which A. and D. had been placed, who supported the applicants ’ claim. They stated, in particular, that the applicants had regularly visited A., who had kept his emotional attachment to his parents and had been happy to see them. The second applicant had also paid regular visits to D., whereas the first applicant had not visited the orphanage, claiming that he had been busy at work. In their conversations with the officials of those institutions, the applicants had expressed their wish to take the children back home.

10 . A representative of a local guardianship and custody agency, Ms P., objected to the applicants ’ claim, saying that they had not changed their attitude to their parental obligations, that they remained irresponsible and were not ready to bring their children up, as had been shown by a diagnosis of the child-parent relationship. Ms P. also pointed out that the conditions in which the applicants were living remained inadequate and inappropriate for the children. In particular, there was no heating and they did not have the necessary furniture. Moreover, the applicants lived with a large dog, which might pose a danger to small children.

11 . The court found it established that the applicants had recently changed their conduct and way of life; that they had stopped drinking alcohol, had found a job, had tidied up their home and were keeping it in order; that they had received satisfactory references from their place of residence and positive references from their employers; that they made regular child-maintenance payments and had no arrears in that respect; that they frequently visited A., and the second applicant regularly visited D.

12 . Nonetheless, the court considered that for the time being, it would be contrary to the children ’ s best interests to reinstate the applicants ’ parental authority and to transfer care of the children to them. The court referred in that connection to the evidence in the civil case which had been examined earlier that year, in which the applicants had been deprived of their parental authority (see paragraph 4 above), and to the evidence in the criminal case against the second applicant (see paragraph 6 above).

13 . The court observed, in particular, that the evidence at hand revealed that the applicants had neglected their parental duties in respect of their children not once, but rather on a regular, continuous basis for several years since 2009, when A. had been born. Thus, between 5 February and 2 July 2009, 14 October 2010 and 14 April 2011 and as from 8 September 2011, the applicants ’ family had been listed in a register of families in a socially dangerous situation and had been monitored by the competent social services because the applicants had been drinking to excess and had failed to ensure a safe environment for their children. The family had been removed from that register on two occasions, as the social work with the applicants had yielded positive results, but had subsequently been put back on the register, as they had resumed their excessive consumption of alcohol.

14 . The materials of the civil case in which the applicants had been deprived of their parental authority included reports on inspections of the applicants ’ living conditions carried out on 23 September, and 19-21 and 30 December 2011, and on 17 February, 30 March, 5 and 6 April, and 2 and 6 May 2012. The reports stated that during each inspection one or both of the applicants had either been in a state of alcohol intoxication or had shown symptoms of alcohol-withdrawal syndrome, and that the hygiene conditions in their home had always been unsatisfactory.

15 . The Volsk District Court noted that the evidence examined in the context of the civil case in which the applicants had been deprived of their parental authority enabled it to conclude that for a considerable period of time, starting from the birth of their first child, the applicants had adopted a negligent attitude towards fulfilment of their parental duties. They had developed an attitude of indifference and disregard for their children, and the relevant social work that had been carried out with the applicants had changed their conduct and attitude only temporarily.

16 . Against that background, the court considered that the short period that had elapsed since the judgment depriving the applicants of their parental authority did not suffice for them truly to have changed not only their way of life but also their attitude towards their parental obligations. Nor did it suffice to enable them to realise their guilty conduct towards their children.

17 . The court went on to note that the applicants ’ statements at the hearing had made it clear that they refused to admit that they had repeatedly failed to fulfil their parental duties and that they considered that depriving them of their parental authority had been the result of a hostile and biased attitude towards them on the part of the childcare authorities.

18 . The court further relied on a report of the psychological expert examination carried out in respect of the applicants in connection with the present proceedings. The report made it clear that the relationship between the applicants and their children was of a conditional, superficial nature. The applicants did not know their children well, despite frequent visits, particularly by the second applicant. Despite such regular contacts, the applicants had not developed a deep and sincere attachment to their children. The latter ’ s feelings and emotions remained closed to the applicants, as had been shown during the expert examination. According to the court, the applicants ’ love and attention to their children were of a superficial nature, a way for them to demonstrate to others their parental feelings. Indeed, a witness in the criminal case against the second applicant had testified to the effect that the latter had stated during her visits to the orphanage where D. was kept that she needed to make a certain number of such visits in order to report that to the court.

19 . The court further held that the fact that the applicants had created an appearance of material welfare was insufficient to grant their claim. Their actions had not demonstrated that their parental authority should be reinstated, that their children should be returned to them, or that they were capable of giving them parental love and care.

20 . The court therefore found that granting the applicants ’ claim would be contrary to their children ’ s interests, and rejected it accordingly.

(b) Proceedings before an appellate court

21 . On 27 March 2013 the Saratov Regional Court upheld the judgment of 24 January 2013 on appeal. It noted, in particular, that the first-instance court had not been furnished with any incontestable evidence confirming that the children ’ s transfer to their family would have a positive effect and would not entail any risk to their lives or health. The Volsk District Court had rightly concluded that the deprivation of the applicants ’ parental authority should be continued. Its judgment had been based on relevant and sufficient grounds in view of the established fact of the imminent danger for the children posed by their parents.

3. Further developments

22 . After the Government had been notified of the case, they submitted additional information on the facts.

23 . On 23 December 2013 the Volsk District Court granted a new claim lodged by the applicants and restored their parental authority in respect of A. and D. The judgment became final on 31 January 2014 and the children were returned to the applicants.

24 . On 30 September 2014 the Volsk District Court restricted the applicants ’ parental authority over A., D. and V., as it was established that they had resumed their anti-social way of life, were again drinking excessive amounts of alcohol and were putting the children ’ s lives in danger. The judgment became final on 8 November 2014.

25 . By an administrative decision of 13 March 2015 A., D. and V. were transferred to a foster family, where they have been living since that date.

26 . On 25 June 2015 the Atkarsk Town Court of the Saratov Region dismissed a claim lodged by the applicants, refusing to lift the restrictions on their parental authority and to return the children to them. The judgment was upheld on appeal by the Saratov Regional Court on 2 September 2015.

B. Relevant domestic law and practice

27 . Article 72 of the Russian Family Code provides in its relevant parts that parents or one of them may have their parental authority reinstated if they have changed their conduct, way of life and/or attitude towards their child ’ s upbringing. Reinstatement of parental authority is made by a court, at the request of a parent who has been deprived of his or her parental authority. In the same proceedings, the court may also examine a claim for return of a child to the parents, or to one of them. The court, with due regard to a child ’ s opinion, may reject the parents ’ application for reinstatement of parental authority, if such reinstatement would be contrary to the child ’ s interests.

28 . In paragraph 19 of Ruling no. 10 “On application of legislation by the courts when resolving disputes concerning the upbringing of children” dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular, that when examining an application for reinstatement of parental authority, a court must check whether the parents deprived of their parental authority have changed their conduct, way of life and/or their attitude towards their child ’ s upbringing.

COMPLAINTS

29 . The applicants complained under Article 8 of the Convention that the domestic courts ’ decisions of 24 January and 27 March 2013 rejecting their application for reinstatement of their parental authority and for the return of their two children had constituted an unjustified interference with their right to respect for their family life.

THE LAW

30 . The applicants complained of a violation of their right to respect for their family life on account of the domestic courts ’ refusal to reinstate their parental authority and to return their two children to them. They relied on Article 8 of the Convention, the relevant part of which reads as follows:

“1. Everyone has the right to respect for his private and family life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

31 . The Government raised a number of objections regarding the admissibility of the present application. As to the merits of the applicants ’ complaint, they argued that the alleged interference with the applicants ’ rights secured by Article 8 had been lawful, had pursued the aim of protecting the interests of A. and D. and had been “necessary in a democratic society”.

32 . More specifically, the Government contended that the national courts, at two levels of jurisdiction, had duly balanced the interests of the applicants and those of their children, and had taken the decision in the best interests of the children. In particular, the courts had carefully examined the circumstances of the case and had taken into account the applicants ’ long history of alcohol abuse and their disregard for their parental duties. In the light of the adduced evidence and given that a very short period had elapsed since the removal of the children, the courts had doubted that the applicants ’ attitude towards their parental obligations had genuinely changed and that a change was sustainable, and that the risk to the children ’ s health and life had been completely eliminated. The courts had thus concluded that, for the time being, the children ’ s transfer to the applicants would not be in their best interests.

33 . The Government also submitted that the decision-making process had been fair, given that the applicants had been present and represented in the relevant proceedings; they had attended the court hearings and had been examined by the court; they had been fully able to state their case, to submit oral and written evidence; and all their procedural rights had been explained to them. The Government thus contended that there had been no violation of Article 8 of the Convention in the present case.

34 . The applicants maintained their complaint.

35 . The Court does not consider it necessary to address the Government ’ s objections on the admissibility of the present application, as it is, in any event, inadmissible for the following reasons.

36 . There is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, 6 July 2010, and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). A child ’ s interests dictate that the child ’ s ties with his or her family must be maintained, except in cases where the family has proved to be particularly unfit and this may harm the child ’ s health and development (see, for instance, K.B. and Others v. Croatia, no. 36216/13, § 143, 14 March 2017). Regard for family unity and for family reunification in the event of separation are inherent considerations in the right to respect for family life under Article 8. Accordingly, in the case of imposition of public care restricting family life, a positive duty lies on the authorities to take measures to facilitate family reunification as soon as reasonably feasible (see K. and T. v. Finland [GC], no. 25702/94, § 178, ECHR 2001 ‑ VII). In particular, taking a child into care should normally be regarded as a temporary measure, to be discontinued as soon as circumstances permit (see N.P. v. the Republic of Moldova , no. 58455/13 , § 70, 6 October 2015 ). At the same time, it is clearly also in the child ’ s interest to ensure its development in a sound environment, and a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (see Strand Lobben and Others v. Norway [GC], no. 37283/13, § 207, 10 September 2019).

37 . The margin of appreciation to be accorded to the competent national authorities will vary in the light of the nature of the issues and the seriousness of the interests at stake, such as, on the one hand, the importance of protecting a child in a situation which is assessed as seriously threatening his or her health or development and, on the other hand, the aim to reunite the family as soon as circumstances permit (ibid., § 211).

38 . The Court recognises that in reaching decisions in such a sensitive area, local authorities and courts are faced with a task that is extremely difficult. Moreover, national authorities will have had the benefit of direct contact with all the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation. There is therefore a need to allow them a certain margin of appreciation in deciding how best to deal with the cases before them and it is accordingly not the Court ’ s task to substitute itself for the domestic authorities but to review, in the light of the Convention, the decisions taken and assessments made by those authorities in the exercise of their margin of appreciation (see N.P. v. the Republic of Moldova , cited above , § 67).

39 . It is also relevant that, while the boundaries between the State ’ s positive and negative obligations under Article 8 of the Convention do not lend themselves to precise definition, the applicable principles are nonetheless similar. In particular, in both cases, the decisive issue in this area is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters, taking into account, however, that the best interests of the child must be of primary consideration and may, depending on their nature and seriousness, override those of the parents (see Achim v. Romania , no. 45959/11 , § 92, 24 October 2017). It is essential that the decisions of the competent domestic authorities were based on “relevant and sufficient” reasons, and that the decision ‑ making process, seen as a whole, was fair and provided the applicants with the requisite protection of their interests safeguarded by Article 8 of the Convention (see N.P. v. the Republic of Moldova , cited above, § 64).

40 . In the present case, the applicants ’ complaint is confined to the court decisions of 24 January and 27 March 2013 by which their application for reinstatement of their parental authority and for the return of their two children was rejected, the deprivation of their parental authority and the removal of the children not being part of the present application. The key question, therefore, is whether, within the period from 6 July 2012, the date on which the applicants were deprived of their parental authority, until 27 March 2013, the domestic authorities complied with their obligation to aim at reuniting the applicants with their children, with due regard to the best interests of the children.

41 . The Court notes that the applicants were originally deprived of their parental authority and their children were taken away from them by a court decision of 6 July 2012. In that decision, the domestic court stressed the serious and systematic nature of the applicants ’ abuse of alcohol and the fact that they had neglected their parental obligations, including regularly putting their young children in life-threatening circumstances (see paragraph 4 above).

42 . At the time the applicants filed a claim for reinstatement of their parental authority and return of their children, the latter had remained in public care for less than six months, which period, in itself, does not appear excessive. Moreover, during that period the applicants had an unrestricted access to their children and were able frequently to visit them in State institutions and thus to maintain regular contact with them (compare and contrast S.J.P. and E.S. v. Sweden , no. 8610/11, § 112, 28 August 2018). The fact that the applicants ’ visits were regular and frequent was mentioned by the applicants in their claim for reinstatement of their parental authority and return of their children (see paragraph 7 above), confirmed by the representatives of State institutions in which the applicants ’ children had been placed (see paragraph 9 above) and by the report of the psychological expert examination (see paragraph 18 above), and established by the domestic court (see paragraph 11 above).

43 . In the proceedings that were brought by the applicants in an attempt to have their parental authority restored and their children returned to them, the domestic courts at two levels of jurisdiction assessed the situation in the light of the evidence available at that time. In particular, they noted the positive changes in the applicants ’ conduct and way of life; the fact that they had stopped drinking alcohol, had found employment, and had been keeping their home in order; that they paid frequent visits to their older child, and that the second applicant also regularly visited the younger child (see paragraphs 11 and 21 above).

44 . Nonetheless, the courts had regard to the fact that the applicants ’ neglect towards their children had persisted over a period of three years, and that it had been of a very serious nature. Indeed, the applicants ’ family had attracted the attention of the social services for the first time in 2009, that is when their first child was born; they had then been monitored by that authority and repeatedly listed in a register of families in a socially dangerous situation because of their abuse of alcohol and failure to secure a safe environment for their children. They had not been deprived of their parental authority until 6 July 2012 (see paragraphs 13 - 14 above). Throughout that period the applicants had not changed their conduct or their attitude towards their parental duties, despite the assistance of the social services (see paragraph 15 above).

45 . The courts also took into account a report on the applicants ’ psychological examination, which showed that, despite the regular contact that the applicants had maintained with their children after removal of their parental authority, their relationship with the children had been superficial and they had not developed a sincere attachment to them (see paragraph 18 above).

46 . In sum, the domestic courts found that prior to the removal of their parental authority, the applicants ’ alcohol abuse and neglectful attitude towards their children had been of a serious, persistent and prolonged nature. Although, after their parental authority had been removed, they had finally changed their conduct and had improved their living conditions, the period during which those positive changes were noticeable had been too short. The domestic courts were therefore not convinced that it would be safe for the children to be returned to their parents. They thus concluded that the reinstatement of the applicants ’ parental authority and the return of the children to them would not be in the children ’ s best interests (see paragraphs 16 , 17 and 19 - 21 above).

47 . Against this background, the Court finds that the domestic courts carried out a detailed and carefully balanced assessment of the applicants ’ situation and the needs of their children; they thoroughly considered the pertinent facts and gave due consideration to the children ’ s best interests. Taking into account the fact that the domestic courts had the benefit of contact with all those concerned, it further finds that they provided “relevant and sufficient” reasons for their decisions, within their margin of appreciation. It can see no reasons to depart from their findings in the circumstances of the present case.

48 . As regards the decision-making process, the Court observes that the domestic courts examined the applicants ’ claim at two levels of jurisdiction. The first-instance court heard a number of witnesses, including those who supported the applicants ’ claim (see paragraph 9 above), and obtained an expert report (see paragraph 18 above). The applicants took part in the proceedings and were able to submit written and oral evidence. The court decisions provided extensive reasons for their findings and addressed the arguments raised by the applicants. The Court is therefore satisfied that the domestic decision-making process was fair and provided the applicants with the requisite protection of their rights secured by Article 8 of the Convention.

49 . In the light of the foregoing, the Court finds that the domestic authorities did not fail in their obligation to aim at reuniting the applicants with their children in the circumstances of the present case.

50 . It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 January 2020 .

Stephen Phillips Georgios A. Serghides Registrar President