CONCURRING OPINION OF JUDGE ELÓSEGUI

1. I agree with the conclusion of the present judgment. I am writing a concurring opinion merely to indicate my reasons for supporting its approach. The applicant was deprived of his parental authority in respect of his only son essentially for being a “passive” father, that is to say for his alleged lack of interest towards his son after his divorce from the boy ’ s mother several years before.

2. The applicant stated to the authorities that he wished to participate in his son ’ s life, but that he had limited his contact with him at the request of his ex-wife, who had created a new family and wanted the boy to accept her new husband. The Russian national courts rejected the applicant ’ s arguments, established that the applicant ’ s contacts with his son had been diminished, considered that this was indicative of the applicant ’ s loss of interest in his son, and found it sufficient to deprive the applicant of his parental authority in order to allow him to be adopted by the mother ’ s new husband.

3. Under Article 69 of the Russian Family Code “a parent may be deprived of parental authority if he or she avoids parental obligations such as an obligation to pay child maintenance; refuses to collect the child from the maternity hospital or from any other medical, educational, social or similar institution; abuses his or her parental authority; mistreats the 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 child or spouse”. Thus the deprivation of parental authority could be based on neglect of parental duties, including the persistent evasion of maintenance payments. However, divesting a parent of his or her parental authority is a very restrictive measure that should not be resorted to easily. Failure to pay maintenance alone should not lead to forfeiture or deprivation of parental authority. The domestic courts relied on more factors in this case. Abandonment would also justify loss of parental authority.

4. In the present case the first above-mentioned group of reasons or grounds is the relevant one. I would refer to the situation as a de facto abandonment or negligence in childcare. The facts that are proven in the file are the following. The applicant was in contact with his son only until the age of two. Then he got divorced and had no contact with the child in seven years: “... as noted by the domestic courts, the applicant had never sought assistance from the childcare authorities or domestic courts for arranging access and determining his contact session with V.” (see paragraph 52). Of course, the reasons differ between the narrative of the applicant and the account of the mother. However the role of the domestic courts in these cases, after hearing both parties, is crucial: “... the Court observes that the decision in question was reached following adversarial proceedings in which the applicant was placed in a position enabling him to put forward all arguments in support of his position” (see paragraph 57). The domestic courts carried out a detailed and carefully balanced assessment of the entire situation and the needs of the child. In conclusion, it was a fair decision-making process.

5. In fact, it is also proven that the father had taken almost no care of the child ’ s financial support. He had helped with maintenance only during eight months, just when the mother started the process for deprivation of parental authority in the civil courts in order for her new husband to be able to adopt the child (between 6 May 2011, when the relevant judgment on deprivation of parental authority was adopted, and 24 January 2012, when following V. ’ s adoption by Mr M.K. that obligation was terminated).

6. It has to be taken into account that according to Russian civil law, as well as in the majority of European Civil Codes, a biological parent must be deprived of parental authority beforehand in order to permit judicial adoption. It is not compatible to have parental authority vested in two different fathers. For me this was a key question in the present case. Even if the origin of the lack of relationship between father and son could have been seen as a goodwill gesture on the part of the natural father to avoid being an obstacle in the child ’ s new situation after the divorce, allowing him to create a new family with his mother ’ s new husband, the reality is that the child de facto almost did not know his biological father, as the mother ’ s husband had assumed the role of real father. Moreover the child wanted to be adopted by his de facto new father (see paragraph 54). From a legal point of view, I understand that it could have been different if they had reached some kind of previous agreement about family visits. But this was not the case. The applicant had never applied for any legal mediation or made any claim for any parental right to be in contact with his son.

7. In cases of lack of agreement between divorced parents, according to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 27.05.1998, no. 10, “About application by courts of the legislation on the settlement of disputes related to the upbringing of children”: “In accordance with paragraph 2 of Article 66 of the EF IC, the parents may conclude a written agreement on the exercise of parental rights by the parent living separately from the child. If the parents cannot come to an agreement, the dispute may be settled by the court at the request of the parents or one of them with the participation of a body of guardianship ...”.

8. Moreover, the Russian Civil Code provides that children in situations of divorce have to be consulted and heard on matters affecting them (Article 57. Right of the child to express his opinion). It is true that their views are not necessarily immutable, and their objections, which must be given due weight, are not necessarily sufficient to override the parent ’ s interests, especially in having regular contact with their child. Whether or not a child wishes to see his or her father is not necessarily relevant to the issue of parental authority, though it would be relevant for custody and access. As I have said above, I find it quite important when there has been some prior agreement on access rights. But in this case the child has hardly known his father and at the age of ten he wanted to be adopted by his mother ’ s new husband. By the time the case arrived before the Court the adoption had already been completed and the biological father had been deprived of his parental authority: “by a court decision of 24 January 2012 Mr. M.K. was granted full adoption of V.” (see paragraph 25).

9. He reacted only when he was called to the civil court in the proceedings initiated by his ex-wife. Even in the hypothesis that the Court had recognised a possible violation of the biological parent ’ s right because of the deprivation of his parental authority, it would only have been a symbolic finding without any practical effect. The new adoption cannot be changed. In fact, according to the applicant, he did not want to disturb the outcome of the adoption. Thus in practice, both things could not be compatible: his retention of parental authority and the new adoption.

10. I would also like to make some comments about the differences between this case and two recent Spanish cases, Haddad v. Spain , no. 16572/17, 18 June 2019, and Omorefe v. Spain , no. 69339/16, 23 June 2020 (not yet final), where the Court, unanimously, found violations of Article 8 because of two cases of deprivation of paternity of biological parents in order for the children to be given up for adoption. There is some common ground in these cases as well as some differences between them.

11. In both of those cases the biological parents had constantly opposed the pre-adoptive process started by the social services. In the case of Omorefe , the applicant was a Nigerian mother whose son was placed in a pre-adoption foster family at three months; she had immediately initiated a judicial process and for more than seven years had been fighting for her rights at more than five different instances. Moreover, before the Court she asked only to be allowed to exercise her right to visit her son and currently did not oppose the adoption that had been completed five years before. She did not seek before the Court to recover her maternal authority, but only to have contact with her son. Moreover, Spanish law allows for this possibility after a legal change in the Spanish Civil Code since 2015. However, this contact has to be authorised by the judge and in agreement with the adoptive family. Also a child up to the age of 12 has to be heard and the child ’ s best interests must be taken into account.

12. In both cases, the Court recognised the possibility of an access right, such contact having been prevented by the social services and later by the domestic courts without any reasoning, although in the case of Omorefe they had recognised this right. In neither of those cases had the lack of contact originated in the inaction or passivity of the biological parents.

13. In the present case, the lack of ties between father and child was due to the applicant ’ s own inaction (see paragraph 53). Even though the Court has said many times that the State has positive obligations to facilitate family reunification (see Strand Lobben and Others v. Norway [GC], no. 37283/13, § 209, 10 September 2019; M.D. and Others v. Malta , no. 64791/10, § 76, 17 July 2012; and N.P. v. the Republic of Moldova , no. 58455/13, § 65, 6 October 2015), it was a de facto situation attributable to private parties, according to the District Court, “in the absence of any objective obstacles” (see paragraph 20). The child even has a half-brother and wanted to have the same family name as him; he thus wanted to be adopted. In this case, considering that the child has always lived with his biological mother and her new husband it would not be possible to send him back to his biological father. When a “a considerable period of time has passed since the child has lived with his or her natural parents, the interest of that child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited” (see paragraph 54).

14. In conclusion, the domestic courts provided relevant and sufficient reasons for depriving the applicant of his parental authority in respect of his son. The applicant ’ s own inaction and passivity had led to the severance of ties between him and the child, thus resulting in the outcome of the civil case, while the applicant himself did not seem to object to his son ’ s adoption by Mr M.K.