Communicated on 24 September 2020 Published on 12 October 2020

THIRD SECTION

Application no. 22076/20 Nataliya Vyacheslavovna VYALSHINA against Russia lodged on 7 May 2020

STATEMENT OF FACTS

The applicant, Ms Nataliya Vyacheslavovna Vyalshina , is a Russian national, who was born in 1975 and lives in Moscow. She is represented before the Court by Ms S.I. Sidorkina , a lawyer practising in Moscow.

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

In 2011 the applicant married Mr V.

On 19 March 2012 the applicant gave birth to their daughter A. The girl was diagnosed with congenital hypothyroidism.

In December 2012 the relations between the couple deteriorated on the ground of V. ’ s dislike of the applicant ’ s son from previous marriage and her other relatives. The applicant and her son were forced to leave, whereas A. remained with her father.

Since April 2013 V. started preventing the applicant ’ s contact with A.

In July 2013 the applicant initiated divorce proceedings and sought determination of A. ’ s residence as being with her.

On 19 August 2013 the Nikulinskiy District Court of Moscow (“the District Court”) took an interim decision ordering that pending the divorce proceedings A. should reside with the applicant. V. did not comply with this decision voluntarily. The Bailiffs Service could not obtain the enforcement of the above decision either.

On 26 March 2014 the District Court dissolved the marriage between the applicant and V. and determined A. ’ s place of residence as being with the latter.

On 28 November 2014 the Moscow City Court (“the City Court”) upheld the above judgment on appeal.

Prevented from any contact with her daughter, the applicant brought proceedings against V. seeking to have the contact arrangement determined by the court.

On 28 August 2015 the District Court took a decision that, pending the proceedings in the case, the applicant should be able to have contact with her daughter every first and third Tuesday of the month as well as every second Saturday of the month for two hours in the presence of the child ’ s father.

V. continued preventing the applicant ’ s contact with A., and in November 2015 she applied for institution of the enforcement proceedings.

As a result of the enforcement measures taken by the bailiffs in the period between January and August 2016 the applicant could obtain access to A., twice a month.

On 28 March 2016 the District Court obliged V. to not thwart the applicant ’ s communication with her daughter and established the contact arrangement.

On 8 September 2016 the City Court quashed the above judgment on appeal and took the decision to determine the schedule of the applicant ’ s contacts with A. as follows: until 19 March 2017 (adaptation period required in view of the absence of extended emotional contact between the applicant and the child) - every first and third Saturday of the month and every second and fourth Sunday of the month from 11 a.m. to 2 p.m. in the presence of V., and after 19 March 2017 – same days from 11 a.m. to 8 p.m. without V. ’ s presence.

V. did not comply with the above judgment voluntarily, and in October 2016 without informing the applicant he took the child from the Moscow Region to Kaliningrad Region, allegedly for medical treatment, where they remained until January 2017.

Following the applicant ’ s request, on 24 March 2017 the Bailiffs Service instituted enforcement proceedings.

On 1 April 2017, in the presence of a bailiff, V. did not let the applicant have contact with their daughter. Moreover, he beat her up, as a result of which the applicant was diagnosed with head contusion. The applicant tried to have criminal proceedings instituted against V., in vain.

On 9 August and 14 August 2017, respectively, the bailiffs imposed on V. an execution fee in the amount of 5,000 Russian roubles (RUB) and an administrative fine in the amount of RUB 1,000 for his failure to comply with the judgment of 8 September 2016.

On 17 January 2018 and 6 May 2019 further administrative fines in the amount of RUB 1,000 were imposed on V. for his failure to comply with the judgment of 8 September 2016.

On 24 May 2019 the enforcement proceedings were discontinued.

Meanwhile, on 17 December 2017 the applicant brought proceedings against V. for a residence order in respect of A., relying on his preventing her contact with the child, as well as the child ’ s need for better conditions for her upbringing and development. V. brought a counterclaim seeking to have determined a new adaptation period for the applicant ’ s contact with the child.

On 11 December 2018 the District Court took into account, relying on relevant reports by childcare authorities and psychological expert examinations, that both parties had suitable living conditions and were equally capable or raising A., that A. revealed delayed speech and intellectual development caused by her congenital illness, that she had positive emotional contact with V. and no emotional bond with the applicant, that due to her age, health and developmental peculiarities she had been unable at that stage to take independent decisions and predict their possible consequences. Assessing the expert conclusions, the District Court further noted that the absence of emotional bond with the applicant would not mean that A. ’ s contact with the latter would amount to a stressful situation for her, that the applicant ’ s personal qualities and her approach to upbringing could positively influence A. ’ s development. The District Court went on to note that when previously determining the child ’ s residence as being with her father V. it proceeded with the assumption that the latter did not and would not put obstacles to the applicant ’ s contact with the child. However, V. had been persistently preventing any such contact which resulted in A. ’ s being completely deprived of her mother ’ s care, especially needed by the child in view of her health issues. Relying on Article 66 § 3 of the Family Code of the Russian Federation [1] , the District Court therefore granted the applicant ’ s claim and dismissed V. ’ s counterclaim. V. appealed.

On 24 May 2019 the City Court quashed the above judgment on appeal, dismissed the applicant ’ s claim and granted V. ’ s claim. The City Court took into account that the child had been living with her father since birth, that she had been emotionally attached to him, that V. had been providing the child with required care, including medical care, and created adequate conditions for her upbringing and development. The City Court noted, on the other hand, that although the applicant had also been capable of taking care of the child, there had been no emotional bond between them, and that granting the residence order to the applicant would not be in the child ’ s best interest and would disturb her habitual lifestyle. The City Court further considered that V. could not be found as persistently failing to comply with the judgment of 8 September 2016. In particular, the judgment in question provided for the initial adaptation period until 19 March 2017 for applicant to renew her contact with the child. However, she had not provided any evidence to the effect that she ever approached V. for voluntary enforcement of the judgment of 8 September 2016, and she had applied for the institution of the enforcement proceedings only on 24 March 2017, that is after the expiration of the above adaptation period. The City Court therefore established a new adaptation period for the applicant ’ s contact with the child – until 1 September 2019. The City Court further warned V. about the consequences of persistent non-compliance with the judgment provided for by Article 66 § 3 of the Family Code.

On 26 August and 13 November 2019, respectively, the City Court and the Supreme Court of Russia refused to accept the applicant ’ s case for examination in cassation proceedings.

Meanwhile, V. has continued preventing the applicant from having any contact with the child.

COMPLAINTS

The applicant complains under Article 8 of the Convention that the judgment of the Moscow City Court of 24 May 2019 determining her daughter ’ s residence as being with her father and the modalities of the applicant ’ s contact with her was in breach of her right to respect for her family life, that it was prompted by the consequences of the father ’ s persistent denial of contact and the authorities ’ failure to secure such contact. The applicant further complains that the domestic authorities failed to take effective measures for securing her contact with her daughter in accordance with the contact arrangement determined by the Moscow City Court on 24 May 2019.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for her family life, contrary to Article 8 of the Convention? In particular:

(a) Did the judgment of the Moscow City Court of 24 May 2019 maintaining the applicant ’ s daughter ’ s place of residence as being with her father and setting out the contact arrangement between the applicant and the child breach the applicant ’ s right to respect for her family life, guaranteed by Article 8 of the Convention?

(b) Was the judgment in question prompted by the consequences of the authorities ’ failure to secure the applicant ’ s contact with her daughter? Reference is made, in particular, to the enforcement proceedings instituted into the judgment of the Moscow City Court of 8 September 2016.

(c) Did the domestic authorities take all the necessary steps to secure the applicant ’ s contact with the child in accordance with the contact schedule set out in the judgment of the Moscow City Court of 24 May 2019?

[1] Article 66 § 3 of the F amily Code provides that in the event of non-compliance with a court decision, the parent guilty of non-compliance is to be subjected to measures stipulated by the legislation on administrative offences and enforcement procedure, and that in the event of persistent non-compliance with a court decision, the court c an , upon a claim being lodged by the parent residing apart from the child, take a decision to place the child in his or her care, taking into account the child’s interests and the child’s opinion.