Communicated on 26 May 2015

FIRST SECTION

Application no. 70135/14 Aleksey Nikolayevich MALININ against Russia lodged on 7 October 2014

STATEMENT OF FACTS

The applicant, Mr Aleksey Nikolayevich Malinin , is a Russian national, who was born in 1979 and lives in the Nizhniy Novgorod region .

A. The circumstances of the case

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

On 25 January 2006 the applicant ’ s wife M. gave birth to a son, N. On 25 August 2008 M. gave birth to another son, V.

In July 2011 the applicant and M. got divorced.

On 20 February 2012 the Shakhunskiy District Court of the Nizhniy Novgorod Region granted a residence order in respect of the children to M.

On 6 May 2013 the Oktyabrskiy District Court of Vladimir rejected the applicant ’ s application for a residence order and allowed his application for a contact order.

On 4 October 2013 the applicant lodged a new application for a residence order with the Oktyabrskiy District Court. He submitted that V. currently lived with him and did not want to return to his mother who shouted at him and physically punished him. Both V. and N. stated many times that they wanted to live with him. He devoted a lot of time to the children by picking them up after school, bringing them for walks and educating them. He had a comfortable and stable income and good living conditions. By contrast, M. did not work and did not have any income except social payments and the alimony payments that she received from the applicant. It was therefore the applicant who maintained the children financially. The applicant further relied on the expert opinion of 19 January 2012 that the children had a stronger attachment to the father than to the mother and wanted to live with the father. According to the experts, the children were afraid of the mother who punished them for a smallest breach of her very strict rules, including by using corporal punishments, and any situations involving the mother were stressful for them. The expert opinion concluded that the mother ’ s style of raising the children was detrimental to their development.

During the hearing the applicant asked that a copy of the expert opinion of 19 January 2012 be admitted as evidence. The court rejected his request. He also rejected the applicant ’ s request to admit as evidence audio recordings of his conversations with the children during which they stated that they wanted to live with h im and complained about being beaten by the ir mother .

On 19 February 2014 the Oktyabrskiy District Court ordered a psychological examination of the children to assess their relationship with both parents.

On 8 April 2014 the expert found that it was not possible to make an expert opinion because M. had refused to come to the examination or to bring the children.

At the hearing M. stated that she loved her children and took good care of them. She therefore asked that the residence order previously granted to her be maintained.

A representative of the childcare authority stated that she had followed the family for some time. She had the impression that the children were equally attached to both parents and both parents took equally good care of them. Recently she noted positive changes in the highly conflicting relationship between the parents. In particular, the mother allowed the father to spend more time with the children than before. The father picked up the children from school and they spent weekends and part of their holidays with him. She considered that there was no reason to change the children ’ s residence arrangements and recommended that the children should continue living with their mother.

On 8 April 2014 the Oktyabrskiy District Court rejected the applicant ’ s application for a residence order. The court found no circumstances warranting the change in the residence arrangements established by the residence orders of 20 February 2012 and 6 May 2013. The applicant had not proved his allegations that M. ’ s style of raising the children was detrimental to their development . The court had no reason to doubt M. ’ s statements that she loved her children and took good care of them. The criminal proceedings on charges of fraud against her had been discontinued. Her living conditions were satisfactory. The fact that she had no employment or income did not justify granting a residence order to the applicant.

On 1 July 2014 the Vladimir Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified. In particular, it held that the applicant had not proved that there were sufficient reasons to give him preference over the children ’ s mother. No exceptional circumstances warranting the children ’ s separation from their mother had been established. It had not been proved that the children had an exceptionally strong attachment to the father or wished to live with him and him only. In such circumstances, and taking into account the children ’ s age and their established was of life, it was inexpedient to grant a residence order to the applicant. The Regional Court further dismissed the applicant ’ s complaint that the District Court had not assessed the family situation with sufficient thoroughness because it had not questioned the children and had refused to admit in evidence the expert opinion of 19 January 2012 . The Regional Court held that, given that the children were under ten years old, their opinion on the residence issue could not be taken into account. As regards the expert opinion of 19 January 2012 , it had been made in the framework of separate proceedings and it was within the District Court ’ s discretion to decide whether it was to be admitted in evidence. The District Court considered that the expert opinion was not necessary because the evidence included in the case file was already sufficient to adjudicate the dispute.

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 express his opinion on all family matters concerning him, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his/her interests (Article 57).

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the refusal to grant him a residence order in respect of his children . He alleges in this connection that the domestic courts did not assess the family situation and the best interests of the children with sufficient thoroughness . In particular, they refused to admit as evidence the expert opinion of 19 January 2012 , did not obtain a fresh expert opinion, and refused to listen to the audio recordings of the applicant ’ s conversations with the children.

QUESTIONS TO THE PARTIES

1. The Government are requested to submit the following documents:

– the judgment of 20 February 2012 by t he Shakhunskiy District Court of the Nizhniy Novgorod Region and the relevant appeal and cassation appeal judgments;

– the judgment of 6 May 2013 by the Oktyabrskiy District Court of Vladimir and the relevant appeal and cassation appeal judgments ;

– t he expert opinion of 19 January 2012 and any other available expert opinions on the relationships between the children and the parents in the applicant ’ s family.

2. Did the refusal to grant to the applicant a residence order in respect of his children violate his right to respect for his family life, guaranteed by Article 8 of the Convention? In particular, having regard to the fact that the children were not heard by th e court, examined by experts as ordered on 19 February 2014 or “heard” in any other way and that the courts refused to admit as evidence an expert opinion of 19 January 2012 commissioned in the previous proceedings, was the decision-making process compatible with the requirements of Article 8 (see Antonyuk v. Russia , no. 47721/10, 1 August 2013 ) ?