Communicated on 26 May 2015

FIRST SECTION

Application no. 77180/11 Sergey Aleksandrovich LEONOV against Russia lodged on 9 December 2011

STATEMENT OF FACTS

The applicant, Mr Sergey Aleksandrovich Leonov , is a Russian national, who was born in 1983 and lives in Moscow . He is represented before the Court by Ms S. Krasovskaya ( Kharchenko ) , a lawyer practising in the Moscow Region .

A. The circumstances of the case

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

On 21 August 2007 the applicant ’ s wife CH. gave birth to a son., A.

In November 2009 CH. left the applicant and took A. with her. A. has been living with her ever since.

The applicant and CH. both applied to the Timiryazevskiy District Court of Moscow for a residence order in respect of A.

On 26 April 2010 the Timiryazevskiy District Court ordered an interim measure forbidding the applicant to contact A. or to pick him up from the nursery school without CH. ’ s permission. It found that the interim measure was necessary to ensure the execution of the forthcoming judgment. It did not give any further reasons.

In April and May 2010 the childcare authorit y examined the applicant ’ s and CH. ’ s flats and found their living conditions satisfactory and suitable for a small child. On an unspecified date the childcare authority found that, by reason of his very young age, A. should reside with his mother. That decision could be reconsidered after A. had reached the age of five or six.

On 29 June 2010 the Timiryazevskiy District Court ordered a psychological expert examination. The experts were asked their opinion on what residence arrangements would be in A. ’ s best interests.

On an unspecified date the experts found that it would be beneficial to A. to maintain contact with both parents. He was equally attached to both of them. Both parents were equally capable of raising the child. The serious conflict currently persisting between the parents could negatively affect A. ’ s psychological development.

According to the applicant, CH. prevented him from seeing A. He therefore applied to the childcare authority for a contact order.

On 15 July 2010 the childcare authority rejected the application for a contact order by reference to the interim measure indicated by the Timiryazevskiy District Court .

On 17 September 2010 the Justice of the Peace 133th Court Circuit of the Mytichshinskiy District of the Moscow Region convicted CH. of assault and battery, a criminal offence under Article 116 of the Criminal Code. CH. was found guilty of assaulting the applicant and causing him bodily injuries. She was sentenced to a fine.

During the hearing of 24 December 2010 in the residence order proceedings the applicant filed an objection to the judge, claiming that she had stated on several occasions that she would reject his application because according to the established practice of the Timiryazevskiy District Court a residence order was always granted to the mother. The judge rejected his objection.

On 18 January 2011 the Timiryazevskiy District Court allowed the applicant ’ s request and stayed the residence order proceedings pending the criminal proceedings against CH.

On 26 January 2011 the Mytishchi City Court upheld CH. ’ s criminal conviction on appeal.

On 8 February 2011 the Moscow City Court quashed the interim measure order of 26 April 2010 on appeal. It found that the interim measure had been disproportionate to the aims pursued. There had been no reason to apply it.

On 16 March 2011 the childcare authority recommended to CH. to stop preventing A. from seeing his paternal family.

On 30 March 2011 the Timiryazevskiy District Court pronounced the divorce of the applicant and CH.

On 7 April 2011 the Moscow City Court quashed the judgment of 26 January 2011 upholding CH. ’ s conviction and remitted the criminal case for a new examination before the appeal court.

On 12 April 2011 t he Timiryazevskiy District Court resumed the residence order proceedings.

During the hearing on the same day the applicant stated that he possessed a comfortable flat in a safe and ecologically clean neighborhood with parks and schools in the vicinity and also had a countryside residence. He had flexible working hours and could therefore devote a lot of time to his son. He had positive character references: he was calm, polite and affectionate towards his son. There was a strong personal attachment between them. By contrast, CH. was aggressive and irresponsible. She had assaulted him in front of A. and had been criminally convicted in connection with that incident. She had been also convicted of an administrative offence of leaving the scene of a road accident and had had her driving license suspended for a year. She lived in a severely polluted and criminally unsafe neighborhood in the vicinity of an oil refinery plant and a prison. Moreover, CH. shared her flat with her mother who smoked and abused alcohol and could therefore have a bad influence on A. Until recently CH. had prevented the applicant from seeing his son, and currently she allowed occasional contacts only.

On the same day, 12 April 2011 , the Timiryazevskiy District Court granted CH . ’ s application for a residence order and dismissed a similar application by the applicant. It found that both parents possessed necessary personal qualities and were equally capable of raising a small child. A. was equally attached to both of them. The court took into account that CH. had been criminally convicted for assaulting the applicant, noting that the conviction had not been yet final. It opined that the incident had been prompted by the serious conflict between the applicant and CH. about A. ’ s residence arrangements. It was therefore insufficient in itself to warrant granting a residence order to the applicant. The fact that the applicant had better income and better living conditions could not serve as a ground for granting a residence order to him either. It was also irrelevant that CH. ’ s flat was situated in a polluted district and that certain members of her close family smoked . The court referred to the childcare authorities ’ opinion that A. should reside with his mother. It further held that, given A. ’ s extremely young age – three years old – and the fact that he had lived with his mother for some time already and had attended a neighbouring nursery school , a change of residence entailing a separation from his mother would negatively affect his psychological development. The applicant was not prevented from applying for reconsideration of a residence order later, after A. had reached “a conscious age” [sic].

On 30 June 2011 the Moscow City Court upheld the judgment of 12 April 2011 on appeal, finding that it had been lawful, well-reasoned and justified.

On 2 February 2012 the Mytischy City Court upheld CH. ’ s conviction for assault and battery on appeal.

According to the applicant, CH. allows the applicant to see his son only occasionally. She prevents any other members of A. ’ s paternal family from seeing him .

B. Relevant domestic law

The Family Code provides that in case of the parents ’ separation, the child ’ s residence arrangements are fixed by an agreement between them. If no such agreement can be reached, the child ’ s residence arrangements are fixed by a court order, having regard to the child ’ s best interests and his/her opinion on the matter. In particular, the court must take into account the child ’ s attachment towards each of the parents and the siblings, the relationship between the child and each of the parents, the child ’ s age, the parents ’ moral and other personal qualities and the possibilities each of them have for creating conditions for the child ’ s upbringing and development (such as each parent ’ s occupation, employment schedule, financial and family situation, etc.) (Article 65 ).

The parent residing separately from the child is entitled to maintain contact with the child and to participate in his upbringing and education. The parent with whom the child resides may not hinder the child ’ s contact with the other parent, unless such contact undermines the child ’ s physical or psychological health or moral development (Article 66 § 1).

A child is entitled to maintain contact with his parents, grandparents, brothers, sisters and other relatives. The parents ’ divorce, separation or the annulment of their marriage have no bearing on the child ’ s rights. In particular, in the case of the parents ’ separate residence, the child is entitled to maintain contact with both of them (Article 55 § 1).

COMPLAINTS

The applicant complains under Articles 6 and 14 of the Convention and Article 5 of Protocol No. 7 about the refusal to grant him a residence order in respect of his son . He alleges, in particular, that by granting the residence order to the mother despite her lower income, worse living conditions and bad character references the domestic courts discriminated him on grounds of sex and violated his right to equality between spouses . He claims that the judge granted a residence order to the mother because she believed, as transpired from her statements at the hearings, that a small child was to be raised by the mother rather than by the father. He also complains that the interim measure prohibiting him to contact his son was unjustified and prejudged the outcome of the proceedings.

QUESTIONS TO THE PARTIES

1. Was there an interference with the right to respect for the applicant ’ s family life , guaranteed by Article 8 of the Convention ? If yes, was the interference lawful and “necessary in a democratic society”? In particular:

– Was the interim measure prohibiting the applicant to contact his son pending the residence order proceedings “necessary in a democratic society” , taking into account that no other justification than the necessity to ensure the execution of the forthcoming judgment was advanced in support of that measure?

– Did the Moscow City Court exercise d exceptional diligence when examining the applicant ’ s appeal against the interim measure, in view of the risk that the passage of time mi ght result in a de facto determination of the matter (see Ribić v. Croatia , no. 27148/12 , § 92, 2 April 2015, with further references)?

– Did the refusal to grant a residence order to the applicant amounted to a failure to respect his family life (see Antonyuk v. Russia , no. 47721/10, 1 August 2013 ?

2. Did the decision to grant a residence order to the mother rather than to the applicant on the sole ground of the child ’ s young age, and irrespective of the parents ’ individual circumstances and character, amounted to discrimination against the applicant on grounds of sex , contrary to Article 14 of the Convention read in conjunction with Article 8?

3. Did the decision to grant a residence order to the mother rather than to the applicant violate the principle of equality of spouses guaranteed by Article 5 of Protocol No. 7?