Communicated on 13 September 2016

THIRD SECTION

Application no. 68868/14 Y. I. against Russia lodged on 14 October 2014

STATEMENT OF FACTS

The applicant, Ms Y . I. , is a Russian national who was born in 1980 and lives in Moscow.

A. The circumstances of the case

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

The applicant is the biological mother of I., born in 1999, A., born in 2011, and Al., born in 2012. At the material time, the applicant, her three children and her mother, Ms P., lived at her home address.

The applicant, who apparently took opiate drugs from 2004 onwards, suffers from an opiate addiction.

1. The applicant ’ s arrest and the removal of her children

In the early morning of 8 October 2013 the police arrested the applicant and her partner, the biological father of A. and Al., at her home address, on suspicion of being involved in drug trafficking. The applicant ’ s three children were at home at the time.

The police officers took the applicant to a police station, where she remained for at least four hours and was then released, having given an undertaking not to leave a specified location. During that period the applicant ’ s children, who had stayed at home on their own, were taken away by a police youth officer ( инспектор по делам несовершеннолетних , “the youth officer”) . He drew up three reports stating that the children had been left unattended, and had therefore been taken to the police station. Later that day, I. was taken to stay with Mr Is., his father, and A. and Al. were taken to a children ’ s hospital.

On the same date the police sent the above-mentioned reports to the Khovrino district authorities ( Администрация муниципального округа Ховрино ), with a request that proceedings to deprive the applicant of her parental authority in respect of I., A. and Al. be initiated.

By decisions of 23 October 2013 the Khovrino district authorities ordered that A. and Al. be placed in the care of the State as children left without parental care.

On 25 October 2013 A. and Al. were placed in a foster home for children (“the children ’ s home”).

It appears that at some point the applicant was convicted of being involved in drug trafficking, and received a prison sentence.

2. The applicant ’ s contact with her children following their removal

According to the applicant, she regularly visited A. and Al. in the children ’ s home at least once a week.

According to the relevant reports of staff at the children ’ s hospital and children ’ s home, A. and Al. missed their mother. In particular, Al. would wake up during the night, weeping and calling for her “mum”. A. would often ask where his mother was and when she would take him home. It was also mentioned that, within the eleven-month period that the children had spent in the children ’ s home, the applicant and her mother, Ms P., had visited them on eleven occasions. They would bring toys and other presents. A. was always happy to see them and cried when they had to leave.

It is unclear whether the applicant ever saw her eldest son I. following his removal.

3. Inspection of the applicant ’ s living conditions

On 11 October and 18 November 2013 the Khovrino district authorities inspected the living conditions at the applicant ’ s home address.

The report of 11 October 2013 stated that the flat had the necessary furniture and domestic appliances. It had two rooms: one measuring 10.4 sq. m, which was occupied by Ms P., the applicant ’ s mother, who was visiting relatives in another region of Russia at that point in time, and another measuring 18.7 sq. m, which was shared by the applicant and her three children. Each of the children had a separate sleeping place. The room was stuffy, as it was not properly ventilated. It was equipped with chests of drawers, a dining table with a desktop computer on it, an office chair and a linen chest. There were empty plastic bottles, ashtrays with cigarette butts and a washing up bowl on the floor. Sufficient food supplies were found in the kitchen and in the refrigerator. The report mentioned that the applicant was present during the inspection. She remained lying on a sofa, crying and smoking, and blamed herself for the recent events, including the removal of her children. According to the report, the applicant stated that she had taken drugs between 2008 and 2011, and then from September until 8 October 2013; in the latter period she had taken heroin, which she had received from Mr K., A. and Al ’ s biological father. The applicant also stated that she had intended to contact the Khovrino district authorities to find out where her children had been taken, but had been unable to do so, as she had remained in bed because of withdrawal symptoms. She realised that she had a drug addiction and was ready to undergo medical treatment.

The report of 18 November 2013 stated that the flat had the necessary furniture and domestic appliances, and was tidy, cosy and well ventilated. Repair work had been carried out in the kitchen in the last month, and the furniture in the applicant ’ s room had been rearranged. The inspection was carried out in the presence of Ms P., who stated that the applicant had been admitted to hospital on 31 October 2013 and was currently undergoing medical treatment as an inpatient in connection with her addiction. Ms P. said that the applicant loved her children and cared about them. She also mentioned that she herself was at that point taking the necessary administrative steps to gain custody of her grandchildren.

4. The applicant ’ s medical treatment

An extract from the applicant ’ s medical history file reveals that on 30 October 2013 she was admitted to a specialist clinic, where she was diagnosed with stage two opiate addiction and withdrawal symptoms. She received treatment for her addiction until 31 November 2013 when she was discharged from the clinic. The file also states that she applied to the clinic for treatment on her own initiative, and that she had a positive attitude towards the treatment and an intention to abstain from drugs and lead a healthy life.

According to a certificate dated 5 December 2013, from December 2013 onwards, following a diagnosis of stage two opiate addiction, the applicant was registered with a drug rehabilitation clinic ( наркологический диспансер ) for monitoring.

5. Proceedings to strip the applicant of parental authority in respect of her children

On an unspecified date the Khovrino district authorities brought an action against the applicant, seeking for her to be deprived of parental authority in respect of her three children. In particular, they pointed out that since October 2013 the applicant had been monitored by the district commission for youth affairs and the protection of minors ’ rights as a mother who had been neglecting her parental duties in respect of her children by not providing them with adequate care and financial support, and who had been taking heroin for a prolonged period of time. The authorities also pointed out that the applicant was unemployed and that at that point in time criminal proceedings against her were ongoing in relation to her suspected involvement in drug trafficking. The authorities therefore insisted that leaving her children with her would put their lives and health at risk.

According to the applicant, at the time of those proceedings she was undergoing medical treatment for her drug addiction, and as a result she was unable to attend the hearings before the first-instance or appellate courts. She made an application for the first-instance court to adjourn the hearing, but her application was refused.

(a) First-instance court

On 17 January 2014 the Golovinskiy District Court of Moscow (“the District Court”) examined and allowed the action against the applicant.

The applicant ’ s representative, who attended the hearing, and her mother, Ms P., who participated in the proceedings as a third party, defended the action.

In its judgment, the District Court referred to Article 69 of the Russian Family Code (see “Relevant domestic law and practice”). It went on to examine the report on the applicant ’ s arrest on 8 October 2013 and a report on her medical examination on that date, which had noted that she had been in a state of intoxication caused by morphine and codeine. The court further quoted from the report of 11 October 2013 on the inspection of the applicant ’ s living conditions, the certificate of 5 December 2013, and the administrative decisions of 23 October 2013 placing A. and Al. in the care of the State. It also relied on a letter from a teacher at I. ’ s school. The letter stated that I. had been going to that school since 1 September 2008, and during that period he had demonstrated a lack of ability and motivation, and had missed classes for no valid reason. The letter also stated that the applicant would take care of I. and inquire about his behaviour and progress, but had not had any influence on him.

The court then heard from the youth officer, Mr P., who stated that the applicant had been taking drugs since 2004. According to Mr P., in 2010 she had stopped taking drugs because of her pregnancy, but had relapsed after the birth and had started taking heroin on a regular basis. Mr P. stated that she had tried to stop taking drugs, but could not stop for longer than a fortnight. He further mentioned that, in the context of the criminal proceedings relating to drug trafficking, a search of the applicant ’ s flat had been carried out and packets of heroin had been found. The applicant would allow her acquaintances to take drugs in her kitchen, in her children ’ s presence. According to Mr P., the applicant ’ s eldest son I. had been monitored by the police; several criminal cases against him had been discontinued owing to his youth.

The court admitted Mr P. ’ s statements as evidence, stating that they were consistent, coherent and corroborated by the written material in the case.

The court then heard from I., Mr Is., I. ’ s father, and Mr Is. ’ s wife. They all stated that they would not object to I. ’ s living with their family. The court examined a report on the inspection of the living conditions in Mr Is. ’ s flat, which confirmed that they were good, and another letter from one of the teachers at I. ’ s school, which stated that since 18 October 2013 (the date on which I. had started living with his father) his behaviour had improved, he had stopped missing classes, and he had made progress in his studies.

With reference to the above-mentioned pieces of evidence and witness statements, the court noted that the applicant had been taking drugs for a prolonged period of time, was unemployed, and had not provided her children with adequate care or financial support. It concluded that leaving the children in her care would put their health and lives at risk, and therefore the applicant should be deprived of her parental authority in respect of I., A. and Al. The court rejected the applicant ’ s representative ’ s argument that the applicant was currently undergoing medical treatment for her addiction and had positive references from her neighbours as irrelevant in the circumstances of the case.

The court then ordered that I. be placed in the care of Mr Is., his father, and that A. and Al. be placed in the care of the State, and that the applicant pay maintenance on a monthly basis to financially support her children.

(b) Appellate court

The applicant disagreed with the first-instance judgment and lodged an appeal. She complained that the District Court had taken an overly formalistic approach and had not assessed the particular circumstances of her case, but had merely applied Article 69 of the Russian Family Code, stripping her of her parental authority on the sole grounds that she was a drug addict. In the applicant ’ s view, that fact alone did not prove that she posed any danger to her children, and therefore was insufficient for the purposes of depriving her of her parental authority. She further argued that the first-instance court had ignored the fact that she was undergoing rehabilitation, even though that fact was directly relevant to her case. Lastly, the applicant complained that she had not been given an opportunity to participate in the proceedings before the District Court, as it had refused her application to adjourn the hearing.

By a decision of 14 April 2014 the Moscow City Court upheld the judgment of 17 January 2014 on appeal.

The appellate court expressed the opinion that the first-instance judgment was well reasoned and based on an adequate assessment of all the relevant circumstances. It disagreed with the applicant ’ s argument that her addiction to drugs had been the sole grounds for depriving her of her parental authority. In that respect, the Moscow City Court noted that, “the fact that the applicant had neglected her parental duties in respect of A. and Al., and that, for a prolonged period of time, she had remained unemployed and had taken drugs had been the reason for the children ’ s removal from her”. The appellate court further referred to the applicant ’ s words in the report of 11 October 2013 to the effect that, because of her withdrawal symptoms, she had been unable to discover her children ’ s whereabouts, and to her interview of 8 October 2013 in which she had stated that she had regularly let other people take drugs in her flat. The appellate court also referred to “other pieces of evidence which showed that the applicant had had and had dealt in drugs at her flat”. In the appellate court ’ s view, the foregoing considerations had been sufficient to enable the first-instance court to reach a well-founded conclusion that leaving the children in the applicant ’ s care would put their lives and health at risk.

The Moscow City Court further noted that the fact that the applicant had undergone rehabilitation treatment could not, on its own, be the basis for rejecting the authorities ’ action, as the first-instance court ’ s judgment had been based on the assessment of the available evidence and circumstances at the time the case was decided. Moreover, the applicant would have the opportunity to seek reinstatement of her parental authority once the reasons that she had been stripped of it were no longer valid.

Lastly, in so far as the applicant complained about the first-instance court ’ s refusal to adjourn the hearing to ensure her personal participation in the proceedings, the Moscow City Court noted that that did not constitute grounds for annulling the judgment, as the applicant had been represented before the first-instance court, and her representative had set out her position.

(c) Cassation court

The applicant then lodged a cassation appeal before the Presidium of the Moscow City Court. She argued that the lower courts had applied Article 69 of the Russian Family Code in a formalistic manner, and had based their decisions solely on the fact that she had been a drug addict, whilst failing to take into consideration the fact that she had been undergoing rehabilitation treatment. Moreover, the first-instance and appellate courts had disregarded her children ’ s right to live and be raised in their family, as guaranteed by Article 54 of the Russian Family Code. In particular, they had failed to demonstrate convincingly that the children ’ s forced separation from their mother and their placement in the care of the State had been in their best interests. The applicant further argued that the courts had failed to set out any facts showing that she had neglected her parental duties at any point, and the courts ’ conclusion to that end had been groundless. According to the applicant, the case material showed that, although she suffered from opiate addiction, she was making efforts to overcome it; moreover, she had never lost interest in her children ’ s lives, their development and upbringing. She also argued that the impugned decisions had breached her right to respect for her private and family life, as guaranteed by Article 8 of the Convention.

By a decision of 29 October 2014 the Presidium of the Moscow City Court upheld the judgment of 17 January 2014 and decision of 14 April 2014, endorsing the reasoning of the lower courts.

B. Relevant domestic law and practice

Article 69 of the Russian Family Code establishes that a parent may be stripped of parental authority if he or she: avoids parental duties, such as an obligation to pay child maintenance; refuses to collect his or her child from a maternity hospital, or any other medical, educational, social or similar institution; abuses his or her parental authority; mistreats his or her child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse.

In ruling no. 10 “On the courts ’ application of legislation 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 :

“...

11. Only in the event of their guilty conduct may parents be stripped of their parental authority by a court on the grounds established in Article 69 of the [Russian Family Code].

Avoidance by parents of their parental duties in relation to their children ’ s upbringing may manifest itself in [such parents ’ ] failure to take care of [the children ’ s] moral and physical development, education, [and] preparation for socially useful activities.

...

Chronic alcohol or drug abuse should be confirmed by a relevant medical report...

12 . ... Persons who do not fulfill their parental duties as a result of a combination of adverse circumstances or circumstances beyond their control (for instance, in the event of psychiatric or some other chronic illness) cannot be deprived of their parental authority ...

...

13. Courts should keep in mind that depriving a parent of parental authority is a measure of last resort. Exceptionally, where a parent ’ s guilty conduct has been proved, a court, with due regard to [the parent in question ’ s] conduct, personality and other specific circumstances, may reject an action for [that parent] to be deprived of parental authority and urge [him or her] to alter [his or her] attitude towards the upbringing of [his or her] children, entrusting [a competent] custody and guardianship agency with monitoring whether [such a parent] is duly performing [his or her] parental duties.”

COMPLAINTS

The applicant complains under Article 8 of the Convention that being stripped of her parental authority constituted an unjustified interference with her private and family life. She points out, in particular, that the domestic courts ’ decisions in her case were based on Article 69 of the Russian Family Code of Russia, which provides for drug addicts to be automatically stripped of their parental authority.

QUESTIONS TO THE PARTIES

1. 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 her being stripped of her parental authority in respect of her three children?

If so, was that interference “in accordance with the law” and “necessary” within the meaning of Article 8 § 2?

In particular, was depriving the applicant of her parental authority based mainly or entirely on the fact that she was a drug addict, and on the automatic application of Article 69 of the Russian Family Code, as alleged by her?

If so, is that practice compatible, and are the relevant provisions of Article 69 of the Russian Family Code compatible with the requirements of Article 8 of the Convention?

If not, were the reasons set out by the domestic courts “relevant and sufficient”?

2. Was the applicant sufficiently involved in the decision-making process in the proceedings relating to her being deprived of parental authority (see, for example, Görgülü v. Germany , no. 74969/01, § 52, 26 February 2004, and A.K. and L. v. Croatia , no. 37956/11, §§ 62-64, 8 January 2013)?

In particular, was the applicant put in a position where she was able t o effectively put forward all arguments in objection to being deprived of her parental authority?