Information Note on the Court’s case-law 194

March 2016

Kocherov and Sergeyeva v. Russia - 16899/13

Judgment 29.3.2016 [Section III]

Article 8

Article 8-1

Respect for family life

Parental authority of father with mild intellectual disability restricted on insufficiently demonstrated grounds: violation

Facts – The first applicant, who had a mild intellectual disability, lived in a care home between 1983 and 2 012. In 2007 he and another resident of the care home had a daughter, the second applicant. A week after her birth the child was placed in public care, where, with the first applicant’s consent, she remained for several years. In 2012 the first applicant w as discharged from the care home and expressed his intention to take the second applicant into his care. However, the domestic courts restricted his parental authority over the child. The second applicant thus remained in public care although the first app licant was allowed to maintain regular contact with her. In 2013 he managed to have the restriction of his parental authority lifted and the second applicant went to live with him.

In their application to the European Court the applicants complained that, as a result of the restriction of the first applicant’s parental authority, their reunification had been postponed for a year, in breach of Article 8 of the Convention.

Law – Article 8: The Court noted at the outset that although the restriction of the fir st applicant’s parental authority over his child had not resulted in the applicants’ separation from one another or had any impact on the first applicant’s visiting rights and had been of a temporary nature, it had nevertheless interfered with their family life.

The domestic courts’ decision was based on a number of reasons: alleged communication difficulties between the child and her parents; the first applicant’s prolonged residence in an institution and his alleged lack of skills in child rearing; his me ntal disability; the fact that the child’s mother had no legal capacity; and the first applicant’s financial situation. Although these considerations appeared relevant for the purpose of striking a balance between the conflicting interests at stake, the Co urt doubted that they were based on sufficient evidence.

There had been conflicting evidence before the domestic courts relating to the domestic courts alleged communication difficulties. Faced with such an obviously conflicting body of evidence, the domes tic courts could have ordered an independent comprehensive psychological expert examination of the child with a view to establishing her psychological and emotional state and attitude towards her father, but had failed to do so. The Court was thus not pers uaded that the domestic courts had convincingly demonstrated that the girl’s transfer into her father’s care would have been stressful to the extent of making it necessary for her to remain in public care for another year.

As to the first applicant’s alleged lack of child rearing skills, this could hardly in itself be regarded as a legitimate ground for restricting parental authority or keeping a child in public care. Furthermore, the psychiatric examination report and certi ficates from the care home confirmed that the first applicant had demonstrated that he was independent and fully able to care for himself and his child. For their part, the domestic courts did not appear to have tried to analyse the first applicant’s emoti onal and mental maturity and ability to care for his daughter.

As to the first applicant’s mental disability, it appeared from a report submitted to the domestic authorities that his state of health allowed him fully to exercise his parental authority. How ever, the domestic court had disregarded that evidence.

Further, although the question whether the mother posed a danger to the child was directly relevant when it came to striking a balance between the child’s interests and those of her father, the domest ic courts had based their fears for the second applicant’s safety on a mere reference to the fact that the mother had no legal capacity, without demonstrating that her behaviour had or might put the second applicant at risk. Their reference to the mother’s legal status was thus not a sufficient ground for restricting the first applicant’s parental authority.

Finally, the first applicant’s alleged financial difficulties could not in themselves be regarded as sufficient grounds for refusing him custody, in th e absence of any other valid reasons.

In the light of the foregoing, the reasons relied on by the domestic courts to restrict the first applicant’s parental authority over the second applicant were insufficient to justify that interference, which was there fore disproportionate to the legitimate aim pursued.

Conclusion : violation (unanimously).

Article 41: EUR 5,000 to the first applicant and EUR 2,500 to the second applicant in respect of non-pecuniary damage.

(See the Factsheets on Parental Rights and Persons with disabilities and the Convention )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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