Communicated on 19 January 2021 Published on 8 February 2021

THIRD SECTION

Application no. 17219/20 S.M. against Russia lodged on 12 March 2020

STATEMENT OF FACTS

The applicant, Ms S.M., is a Russian national, who was born in 1982 and lives in Voronezh. She is represented before the Court by Mr I. Sivoldayev , a lawyer practising in Voronezh.

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

The applicant is the biological mother of Ye., born in 2010, and A., born in 2014. At the material time, the applicant, her two daughters and her mother, Ms V.A., lived at her home address in Voronezh.

The case file reveals that the applicant has been suffering from polydrug addiction since 1998.

On 21 September 2017 the applicant was convicted of manufacture and sale of narcotic drugs and sentenced to four years ’ imprisonment. The serving of the sentence was adjourned until the applicant ’ s younger child turned fourteen years of age.

On an unspecified date in 2018 the Department of the Federal Service for the Execution of Sentences in the Voronezh Region ( ФКУ УИИ УФСИН России по Воронежской области ) (“FSIN”) requested the Sovetskiy District Court of Voronezh (“the District Court”) to annul the adjournment of the applicant ’ s sentence due to her failure to perform her duties in raising and maintaining her minor children.

On 10 September 2018 the District Court dismissed the request. It observed that the applicant had committed an administrative offence of neglecting her parental duties on two occasions, on 14 December 2017 and 5 July 2018, and had been fined in this connection. It also noted that on 11 January 2018 the applicant was warned that the sentence adjournment could be annulled. It further noted that in August 2018 the applicant had found a new job; Ye. and A. regularly went to school and kindergarten and they were emotionally stable; and the applicant participated in their educational activities. The court found that there was no evidence that the applicant had failed to perform her parental duties and there were no grounds to annul the adjournment of the sentence.

On 9 June 2018, 30 January and 14 February 2019 representatives of the Custody and Guardianship Agency in Voronezh ( Управа Советского района городского округа г. Воронежа – орган опеки и попечительства ) (“the childcare authority”) inspected the living conditions at the applicant ’ s home address. The applicant has not submitted copies of the reports. Their contents were summarised in the court decision of 27 February 2019 (see below).

According to the report of 9 June 2018, the applicant, her children and Ms V.A. lived in a two-room apartment. The sanitary conditions of the apartment were unsatisfactory, with unpleasant odour, trash and personal belongings scattered around. There was insufficient food.

The report of 30 January 2019 stated that the flat had the necessary furniture and domestic appliances, and enough food. Repair works and clean-up were required. Children had sleeping space and a place for educational activities. The inspection concluded that the living conditions were satisfactory.

According to a report of 14 February 2019, repair works were carried out in one of the rooms. The living conditions were satisfactory.

On 13 February 2019 the childcare authority brought an action against the applicant and her former husband, seeking to have them deprived of their parental authority in respect of Ye. and A. The childcare authority argued, among other things, that the applicant had been convicted of a drug related crime, and that she had committed an administrative offence of neglecting her parental duties on five occasions. In their action they did not specify the details of the administrative offence committed by the applicant. In support of their action they also referred to the inspection report of 9 June 2018 that the living conditions were unsatisfactory.

(a) Proceedings before the first-instance court

(i) The hearing of 27 February 2019

At the hearing the applicant argued that she was taking care of her children and that between June and July 2018 she had completed a training in order to get a new job.

The court heard Ms B., a FSIN officer, who had submitted that the applicant regularly visited the authority for a check-up. She also stated that following the court decision of 10 September 2018 when it had dismissed the authorities ’ request for annulment of the sentence adjournment the applicant had demonstrated positive developments, such as improving living conditions and taking care of her children.

The court also heard a social protection officer, Ms K., who monitored the applicant ’ s family since 2016. She submitted that the applicant was actively taking care of her children for the last year and a half. The applicant ’ s flat and the living conditions improved.

(ii) The court ’ s decision

On 27 February 2019 the Sovetskiy District Court granted the action against the applicant and her former husband.

In its judgment, it mentioned the living conditions inspection reports of 9 June 2018, 30 January and 14 February 2019. The court noted that the applicant was registered as unemployed as of December 2018. It also noted the applicant ’ s positive references given by her former employer, who described the applicant as a responsible employee. The court also mentioned references given by the school and kindergarten which Ye. and A. attended. According to them, the applicant was interested in their educational progress and she attended school and kindergarten meetings and cultural events. The court noted that since July 2018 the applicant regularly visited a medical specialist in connection with her drug addiction problem.

The court observed that on 13 September 2016 the applicant ’ s family had been registered as a “family with difficulties” ( неблагополучная семья ) due to the applicant ’ s drug addiction. It further noted that the applicant had committed five administrative offences between October 2016 and September 2018 for neglecting her parental duties and referred to her conviction of September 2017. The court decision did not contain details about the applicant ’ s administrative offences. The court then referred to information from a children ’ s hospital dated 12 September 2018, according to which on unspecified dates the applicant had visited the hospital with her children in a state of alcohol intoxication.

Having noted the witness submissions of Ms B. and Ms K. (see above), the court concluded that the applicant should have improved her behaviour earlier, in particular, following her conviction in 2017. It noted that the positive developments had taken place only following the court decision of 10 September 2018. Referring to Article 69 of the Russian Family Code (see “Relevant domestic law and practice”), the court highlighted that the applicant had been convicted of storing large amount of drugs in her flat where her minor children lived. The court concluded that depriving the applicant of parental authority would not “contradict the interests of the children”.

As to the applicant ’ s former husband the court found that he did not show any interest in the education and upbringing of the children. It ordered the applicant and her former husband to be deprived of their parental authority. It ordered that Ye. and A. be placed into the public care, and that the applicant and her former husband pay maintenance on a monthly basis to support the children financially. The court ordered that the applicant pay maintenance starting from 17 December 2018. The court ’ s order regarding the payment of the maintenance was to be enforced immediately. It is unclear on what date the children were removed from the applicant.

(b) Proceedings before the appellate court

On 1 April 2019 the applicant lodged an appeal against the first-instance court ’ s judgment. She complained that the District Court had not given a proper consideration to the fact that her living conditions had recently improved as attested by the inspection reports of 30 January and 14 February 2019. She also submitted that in March 2019 she had found a new job and referred to positive references given by the school and kindergarten which her daughters attended.

On 21 May 2019 the applicant requested the appellate court to postpone the hearing because her representative was not in town and she asked the court to hold the hearing on 28 May 2019 when her lawyer would be able to attend. The court held the hearing on 30 May 2019. The applicant was present at the hearing without a lawyer.

On 30 May 2019 the Voronezh Regional Court upheld the judgment of the District Court on appeal, reiterating its findings. The appellate court decision does not contain an assessment of the applicant ’ s arguments concerning the improper assessment of the reports of 30 January and 14 February 2019. It noted, in particular, that the applicant had been taking drugs since she was fifteen and did not undergo any rehabilitation treatment. It concluded that the District Court ’ s decision was well-reasoned and based on an adequate assessment of all the relevant circumstances.

(c) Proceedings before the courts of cassation

On 10 June 2019 in the context of the cassation review procedure the applicant lodged an appeal with the Voronezh Regional Court. Firstly, she complained that the appellate court had disregarded her request and held a hearing on 30 May 2019 in the absence of her lawyer. Secondly, she submitted that the courts had deprived her of parental authority solely on the grounds that she had changed her behaviour following the court decision of 10 September 2018 and not earlier. She complained that the courts had disregarded the positive developments since September 2018. In the latter connection the applicant referred to the reports of 30 January and 14 February 2019. Lastly, she complained that the court of the first instance had ordered her to pay maintenance for children starting from 17 December 2018, that is for the period when they were still living with her.

On 31 July 2019 the Voronezh Regional Court dismissed her appeal, reiterating the findings of the first instance court and the appellate court. It did not contain the assessment of the applicant ’ s arguments concerning her representation in the appeal hearing and assessment of the reports of 30 January and 14 February 2019.

On 19 August 2019 the applicant lodged an appeal with the Supreme Court of Russia. She reiterated her submissions and complained that the neither the appellate court nor the court of cassation had addressed her arguments.

On 12 September 2019 the Supreme Court of Russia dismissed the applicant ’ s appeal and found no grounds to quash the decisions of the lower courts.

The relevant provisions concerning deprivation of parental authority are summarised in Y.I. v. Russia (no. 68868/14, §§ 51-55, 25 February 2020).

COMPLAINTS

The applicant complains under Article 8 of the Convention that the deprivation of her parental authority constituted an unjustified interference with her private and family life.

The applicant also complains under Article 1 of Protocol No. 1 to the Convention that by the court judgment of 27 February 2019 she was ordered to pay maintenance for the children starting from 17 December 2018, that is in the period when they were still living with her and were dependent on her, thereby posing an excessive financial burden on her.

QUESTIONS TO THE PARTIES

1. ( a) Has there been an interference with the applicant ’ s right to respect for her family and/or private life under Article 8 § 1 of the Convention, as a result of the deprivation of her parental authority in respect of her children, Ye. and A.?

( b) If so, was that interference justified under Article 8 § 2 of the Convention (see, for example, Y.I. v. Russia , no. 68868/14, §§ 75-96, 25 February 2020)? In particular, were the reasons set out by the domestic courts for the deprivation of her parental authority “relevant and sufficient”? The parties are invited to submit a detailed account of the administrative proceedings in respect of the applicant referred to in the judgment of the Sovetskiy District Court of Voronezh of 27 February 2019.

( c) Was the applicant sufficiently involved in the decision-making process in the proceedings relating to her being deprived of parental authority? In particular, was the applicant put in a position where she was able to effectively put forward all arguments in objection to being deprived of her parental authority?

2. ( a) Were the applicant ’ s children, Ye. and A., removed from the applicant? If so, on what date? Did the applicant pay the maintenance for the children as ordered by the judgment of the Sovetskiy District Court of Voronezh of 27 February 2019? The parties are invited to produce relevant documents.

( b) In so far as the judgment of the Sovetskiy District Court of Voronezh of 27 February 2019 ordered that the applicant pay maintenance for her children starting from 17 December 2018, and having regard to the applicant ’ s allegation that in that period they were still living with her and were dependent on her, has there been an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 of the Convention?

( c) If so, was that interference justified?