DISSENTING OPINION OF JUDGE SERGHIDES

1 . The case concerns the removal by the domestic authorities of the applicant ’ s parental authority in respect of his son, V., with whom he was considered to have had no contact for seven years, despite the applicant ’ s counterclaim that he wished to participate in his son ’ s upbringing, to have contact with him once a fortnight, and to spend his annual leave with him.

At the time of the domestic proceedings, which were instituted by his mother, the child was about ten years old. Shortly after the decision of the domestic courts which divested the applicant of his parental authority and also ordered him to pay a monthly amount in maintenance for his son until maturity, the new husband of the mother – with whom the mother had had another son – adopted V.

2 . Regrettably, I am unable to join my distinguished colleagues in finding that there has been no violation of the right to respect for family life under Article 8 of the Convention, in relation to the decision to strip the applicant of all his parental authority and the absolute restrictions in the restoration of contact with his son. I respectfully disagree for the reasons I will explain below.

3 . On the basis of Article 69 of the Russian Family Code (see paragraphs 26 and 47 of the judgment), the domestic courts removed the applicant ’ s parental control totally, thus extinguishing all parental rights the applicant had had in respect of his son, including the right to have contact with him (see paragraph 48 of the judgment), on the ground that the applicant had not had contact with his son for seven years (see paragraphs 49 and 55 of the judgment), though the applicant in fact had, pending before the same courts, a request to grant him access to his son which was eventually rejected. Unfortunately, the applicant was punished for not having something which he subsequently asked the domestic courts to grant to him, namely access to his son. Instead, the domestic courts not only refused to grant him such access, they, on the contrary, stripped away all his parental authority, simply because of the delay in his initiative. In my view, parent-child relations and ensuing rights should not be treated like property rights which may lapse if not exercised for a period of time. Whenever there is hope that parent-child relations can be restored, the authorities ought to assist them and not terminate them totally and permanently, as they did in the present case.

4 . Quite rightly, the Russian Supreme Court held that deprivation of parental authority was a measure of last resort (see paragraph 30 of the judgment) and the present judgment, also rightly, reaffirms that such a measure is a far-reaching one which is inconsistent with the aim of reuniting parent and child (see paragraph 48 of the judgment). It is also correct for the judgment to state that such a measure should only be applied in exceptional circumstances which can only be justified if they are motivated by an overriding requirement pertaining to the child ’ s best interests (ibid). Furthermore, Article 69 of the Russian Family Code does not provide that whenever there is a ground for deprivation of parental authority, the court must automatically proceed with the deprivation without weighing it up against other factors or considerations.

5 . With all due respect, the domestic authorities and the majority in the present case erred as to what constituted exceptional circumstances for the removal of parental authority to be justified by the child ’ s best interests. Family relationships are complex and they are not linear; families can go through better and worse times. It is not easy for a domestic court to conclude that family relations cannot be salvaged, and, therefore, a court should only deprive parents of such a chance if they pose a real threat to the child ’ s welfare. Such a risk did not exist in the present case. I am of the opinion that mere inaction of the parent is not sufficient to satisfy the exceptional circumstance under which authorities may resort to the impugned measure, depriving a parent of all connection with a child. In other words, even assuming that it was the applicant ’ s own inaction that led to the severance of ties between him and his son – and not any alleged parental alienation or psychological manipulation caused to the child by the mother – I am not at all convinced that this factor was sufficient for the purpose of divesting the applicant of his parental authority in respect of his son. Especially so in a situation where the applicant insistently indicated that he wished to restore and develop a relationship with his son (see paragraphs 7 and 22 of the judgment and the present application before the Court).

6 . I believe that this is a very restrictive and harsh measure. It is relevant in this connection that, apart from holding that the applicant had failed to maintain contact with V. and to participate in his upbringing for the past seven years, the domestic courts established no other aspects that could have justified the withdrawal of the applicant ’ s parental authority. Indeed, in the domestic proceedings, it had never been established that the applicant was unfit for child-rearing, that he had ever inflicted any harm on his son, or that he posed a threat to the child ’ s health and development or that contact with the applicant might interfere with the child ’ s relevant rights (compare Haddad v. Spain, no. 16572/17, § 67, 18 June 2019). Stated otherwise, in the present case, neither the life, nor the physical integrity, nor the health nor the morality of the child were at stake and there was no other exceptional circumstance. It is true that during the seven years when there was no contact, the child established strong family ties with his mother, stepfather and half-brother. In the child ’ s eyes, this was his family and he had no recollection of the applicant. However, there was nothing in these relations to warrant depriving him of the opportunity to rebuild his relationship with his biological father. In order to protect the child ’ s best interests, it is conceivable that the child had to remain in the family unit with which he had already an existing connection. Yet, to reiterate, this is not sufficient to justify depriving the father of all contact with the child, and all possibility of future contact. Thus, stripping the father of all parental authority does not satisfy the proportionality test and the principle of effectiveness. It is a requirement of the principle of effectiveness that human rights must be practical and effective and not theoretical and illusory. Hence, the interpretative approach to human rights provisions must be pragmatic and realistic, ensuring that they are meaningfully exercised.

7 . Moreover, although the period during which the applicant had no contact with V. was one of considerable length, particularly for a child of his age, this factor alone could not have ruled out the possibility of restoring the ties between the boy and the applicant, his biological father. According to the Court ’ s case-law, effective respect for family life requires that future relations between parent and child be determined in the light of all the relevant considerations, and not by the mere passage of time (see, as a recent authority, V.D. and Others v. Russia , no. 72931/10, § 116, 9 April 2019). Yet the domestic courts refused the applicant access to V. without examining whether renewed contact between V. and him would be in V. ’ s best interests. Moreover, according to the Court ’ s case-law, Article 8 includes a parent ’ s right to have steps taken with a view to being reunited with his or her child and an obligation on the national authorities to facilitate such reunion, in so far as the interest of the child dictates that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see, among many other authorities, Kacper Nowakowski v. Poland, no. 32407/13, § 74, 10 January 2017).

8 . As the domestic courts noted, in an interview with the psychologists, V. stated that, although he knew of the existence of his biological father, the applicant, V. did not remember him and did not wish to have contact with him; his “dad” was Mr M.K. his stepfather (see paragraph 10 of the judgment), which is something that the mother should have discouraged in order not to contribute to the alienation of the biological father. Pursuant to the Court ’ s case-law, children are entitled to be consulted and heard on matters affecting them. In particular, as children mature and, with the passage of time, become able to formulate their own opinions, the courts should give due weight to their views and feelings, as well as to their right to respect for their private life (see Petrov and X v. Russia , no. 23608/16, § 108, 23 October 2018). At the same time, those views are not necessarily immutable, and their objections, which must be given due weight, are not necessarily sufficient to override the parents ’ interests, especially their interest in having regular contact with their child. The right of a child to express his or her own views should not be interpreted as effectively giving an unconditional power of veto to children without any other factors being considered or any examination being carried out to determine their best interests. What is more, if a court based a decision on the views of children who were palpably unable to form and articulate an opinion as to their wishes – for example, because of a conflict of loyalty and/or their exposure to the alienating behaviour of one parent – such a decision could run counter to Article 8 of the Convention (see K.B. and Others v. Croatia , no. 36216/13, § 143, 14 March 2017 and the authorities cited therein). In the latter connection, the applicant argues that the interview in question had been carried out with V. in his absence, and that V. had been living with his mother and might have been influenced by her (see paragraph 35 of the judgment). Besides, it must be pointed out that the judge did not have an interview with the boy to determine his genuine views and ascertain whether he was influenced by his mother (see, about children ’ s rights to express their views, Articles 3(c) and 6 (b)(c) of the European Convention on the Exercise of Children ’ s Rights; Article 12.1 of the United Nations Convention on the Rights of the Child, 1989; and Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on Child-Friendly Justice, Strasbourg, 2010 (available also online), at p. 28, §§ 44-49).

9 . Member States are under a positive obligation before terminating parental authority to make attempts to save the relationships between parents and children. Despite the applicant ’ s attempt to request access to the child, he was not given the opportunity to salvage the relationship, or even to meet his son in person. Consequently, the door for such a relationship was closed harshly and permanently – given the child ’ s subsequent adoption by his mother ’ s new husband – by the domestic courts. The domestic courts should not have ruled out the prospect that regaining contact and building new ties with his biological father would be beneficial for V ’ s future. Indeed, the authority of the case of Mandet v. France , no. 30955/12, 4 January 2016, should not be overlooked. The facts of Mandet are complex, but a strong analogy can be made with the present case. After a divorce, the mother of the child Ms Mandet entered into a relationship with Mr Glouzmann. She gave birth to a child which was registered in her name. Subsequently, Ms Mandet became reconciled with her ex-husband and they remarried, which had the effect of legitimising the child. The boy grew up believing that Mr Mandet was his father, but when he was 11 years old, Mr Glouzmann applied to the court, which found that the boy was his biological father. The Court also ruled that it was in the child ’ s best interests to know his biological father. The fact that it took Mr Glouzmann 11 years in order to pursue recognition of paternity and that the child had already existing bonds with his other family members and Mr Mandet, whom he perceived as a father, did not extinguish the biological father ’ s right to have contact with his child. The 11 years of inaction were not considered an exceptional circumstance such as to prevent recognition of parenthood. Instead, the Court recognised the potential benefit of a future relationship.

10 . Equally, allowing the applicant a chance to regain contact with his son in the present case would not negatively impact the bonds that V shared with his existing family. To re-establish a connection with the applicant would only give the child an opportunity to gain something, not to lose out. Yet when making the decision about the best interests of a child, the domestic courts did not take into account the possibility of restoring their ties, but merely focused on the existing relationship.

11 . Lastly, no complete and absolute contact prohibitions should be used as a means of disciplining or punishing parents. In the majority ’ s eyes, the parental inaction of the applicant for seven years justified depriving him of his right to family life. Yet such measure, if used as a punishment, would be paradoxical in the light of the very strong case-law of the Court reaffirming that a prisoner, who committed a wrong against society at large should still enjoy his right to family life. As decided in Dickson v. the United Kingdom ([GC], no. 44362/04, 4 December 2007), not only should a prisoner maintain the right to existing family ties, but also the States are under a positive obligations to facilitate starting a fa mily. In the light of this case ‑ law, the rights entrenched within the Convention are of such importance that they should not be taken away as a means of punishing the individual beyond what is necessary to keep the public or, as in this case, a child, safe. It has previously been stressed that enabling the applicant to have contact with his son would not put V ’ s welfare at risk, but on the contrary, regaining contact with his biological father would be in his best interests. Therefore, it is inappropriate, and contrary to the spirit of the Convention, to deprive the applicant of his right to family life simply because the Court disapproves of the lengthy period in which he did not initiate contact with his son.

12 . It seems that in the mother ’ s mind was the idea that her new husband would adopt the child – an adoption which eventually took place a few months after the applicant was deprived of his parental authority (paragraph 25 of the judgment). It is also striking that the domestic court imposed on the applicant an obligation to pay a monthly amount in maintenance until the boy reached the age of majority, notwithstanding the fact that he would no longer have parental authority over the child (see paragraphs 21 and 56 of the judgment), a point which the majority noted with a hint of implicit criticism.

13 . In paragraph 55 of the judgment it is stated that “the national authorities were faced with a difficult task of striking a fair balance between the competing interests – those of the applicant, V., his mother and his de facto family members – in a complex case”. The judgment then goes on to say that “[i]n particular, they [i.e. the national authorities] were called upon to decide whether it was in V. ’ s best interests to set in motion his bonding with the applicant – his natural father – contact with whom had been lost for the previous seven years, or rather to consolidate the existing ties between V. and the family in which he had been living during that period” (ibid.). Subsequently, the judgment continues that “[t]he Court finds that the domestic courts carried out a detailed and carefully balanced assessment of the entire situation and the needs of the child ... ” (ibid.). By stating the above, the Court found that the domestic courts “provided ‘ relevant and sufficient ’ reasons for their decision, within their margin of appreciation” (ibid). In my humble view, however, the national courts either made no proportionality test at all or erred in what that test should be, and in what the child ’ s best interests were. With due respect I am unable to understand what is the meaning of “consolidation” of the existing relations of the child with his mother, his half-brother and his stepfather. The child ’ s relationship with his mother, half-brother and stepfather was very good and there was no evidence that this relationship should be upset if the child ’ s biological father were also to have contact with him every fortnight. This is a scenario which arises for almost all separated parents. The domestic courts did not take into account the child ’ s best interests in terms of having contact with his father or the applicant ’ s right to respect for his family life. What the domestic courts seem only to have taken into account was the wish of the mother and her new husband to legally alienate the child from his biological father. In that connection the intention of the mother and her new husband was for the latter to adopt the child and they ultimately succeeded.

14 . In the light of the foregoing, I submit that the domestic courts did not fairly weigh up the competing interests involved in the decision-making process, and failed to provide “relevant and sufficient” reasons for depriving the applicant of his parental authority, thus extinguishing all his parental rights in respect of his son, including the right to have contact with him (see paragraph 48 of the judgment). It follows that the interference with the applicant ’ s right to respect for his family life was not “necessary in a democratic society”.

15 . There is another reason why, in my view, there has been a violation of Article 8 of the Convention. The applicant wished to participate in his child ’ s upbringing (see paragraph 7 of the judgment), which implies a request going beyond the right of access. Russian family law, seen as a whole, does not allow the different aspects of parental authority to be allocated to each parent, no matter to what degree or extent. Indeed, parental authority can be depicted as a wide circle which encompasses various smaller circles within it, representing the different aspects of the child ’ s well-being over which the parents may exercise some control: for example, decisions concerning custody, everyday childcare, education, medical treatment, travel abroad, representation before a court, administration of property, etc. It is conceivable that it may be in the child ’ s best interests for a parent to be stripped of some of these rights and obligations, such as for example that of everyday childcare, while also being able to participate in other aspects of the child ’ s upbringing. Regrettably, the domestic courts not only rejected the applicant ’ s counterclaim regarding his access to the child, they completely ignored his more general request to participate in the upbringing of his child.

16 . This inflexibility and harshness of the Russian family law system did not give discretion to domestic courts to make a decision allowing one parent to participate in some aspect(s) of the upbringing of the child while leaving the other parent with a more prominent role.

17 . Furthermore, this inflexibility and stringency of the domestic law did not allow the national courts to endorse two of the most basic principles of the Convention, the principle of effectiveness and the principle of proportionality, in dealing with the participation of the two parents in different aspects of the needs of their child, for the sake of its best interests. Of course, the principle of subsidiarity cannot justify a lack of European scrutiny in ensuring that the requirements of Article 8 are met when a domestic legal system, as in the present case, by the indivisibility of parental authority as a legal concept, does not facilitate any proportionality test or any guarantee for the effective protection of the right to respect for family life. In other words, Russian family law by its stringency and inflexibility forces the domestic courts to apply an “all or nothing” approach regarding parental authority and in this sense can be understood the very existence and operation of Article 69 of the Russian Family Code.

18 . The Court has shown its disapproval towards the inflexibility of Russian family law in two cases, namely Nazarenko v. Russia , no. 39438/13, §§ 64-68, ECHR 2015 (extracts), and V.D. and Others v. Russia , cited above §§ 127-131, by finding a violation of Article 8 of the Convention, because Russian family law did not permit a person who was the guardian of a child but not his or her biological parent to maintain access to the child after the biological parents regained their parental authority. The inflexibility of Russian family law is even more striking in the present case than in those other two cases, since here the applicant is the biological parent of the child.

19 . For all the above reasons there has, in my view, been a violation of Article 8 of the Convention and the applicant would be entitled to an award in respect of non-pecuniary damage, which, however, I will not estimate, since I am in the minority.