DISSENTING OPINION OF JUDGE SCHEMBRI ORLAND

1 . Ilya Lyapin v. Russia concerns the termination of parental rights, which the father had hitherto enjoyed at law, being a preliminary step in a legal iter which culminated in the adoption of his child by the child ’ s stepfather. This latter procedure did not require the applicant ’ s consent under Russian law. I was not part of the majority which decided to find that there had been no violation of Article 8 of the Convention in respect of Mr Lyapin ’ s complaint.

2 . I must admit that I was of two minds when assessing the facts of this case because it was apparent that, until the mother had brought the legal proceedings which form the merits of this case, the father had displayed no interest in asserting the rights which are encompassed under the umbrella of parental authority such as the right to participate in the decision-making process concerning his son ’ s welfare or contact and visiting rights. Nothing in the records of the case shows that he had displayed the slightest interest in following his son ’ s progress during the years preceding his former wife ’ s request for termination of his authority. Similarly, it was also evident that he had, for the important formative years of his son ’ s life, neglected the responsibilities which are at the heart of parental authority (a dynamic obligation to ensure his son ’ s well-being, to follow his son ’ s development or contribute towards his maintenance) to the extent that his son did not know him and would have nothing to do with him. Viewed from the perspective of the child, children are holders of rights as well as beneficiaries of protection. Parental authority is as much, if not more, an issue of parental responsibilities than a question of parental rights. This opinion is not, therefore, intended to diminish this child-centred approach.

3 . It must be stated at the outset that the applicant did not contest the adoption of his child. If this had been so, then such contestation would have added another layer to this case, as adoption without the biological father ’ s knowledge and consent has given rise to many applications before this Court ( see Keegan v. Ireland , 26 May 1994, Series A no. 290 ; Görgülü v. Germany , no. 74969/01, 26 February 2004; and K.A.B. v. Spain , no. 59819/08, 10 April 2012 ). Yet it is undeniable that the proceedings at issue were a precursor to that adoption.

4 . The Court has repeatedly held that measures which entail severing all parental links with a child would only be justified in exceptional circumstances by the overriding requirement of the child ’ s best interests ( see R. and H. v. the United Kingdom , no. 35348/06, § 81, 31 May 2011) . That approach, however, may not apply in all contexts, depending on the nature of the parent-child relationship (see P., C. and S. v. the United Kingdom , no. 56547/00, § 118, ECHR 2002 ‑ VI). Where the decision is explained in terms of a need to protect the child from danger, the existence of such a danger should be actually established (see, mutatis mutandis , Haase v. Germany , no. 11057/02, § 99, ECHR 2004 ‑ III (extracts)).

5 . In the present case, the domestic courts dismissed the applicant ’ s request to be granted access to the child, finding that the lack of contact over a prolonged period of seven years had effectively severed all ties (see §§ 18, 20 and 21 of the judgment). In the difficult and turbulent context of family disputes, the domestic courts are best placed to assess the evidence, weigh up the facts and determine the child ’ s best interests.

6 . However, whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and ensure due respect for the interests safeguarded by Article 8. In particular, stricter scrutiny is called for as regards any further limitations such as those in the present case (see Sahin v. Germany [GC], no. 30943/96, § 65 , ECHR 2003 ‑ VIII, and Sommerfeld v. Germany [GC], no. 31871/96, § 63, ECHR 2003 ‑ VIII ). Furthermore, in assessing the quality of the decision-making process, the Court will have to see whether the conclusions of the domestic authorities were based on adequate evidence (see N.P. v. the Republic of Moldova , no. 58455/13, § 69, 6 October 2015).

7 . The domestic court, in reaching its decision, applied Article 69 of the Russian Family Code (see paragraph 16) and decided that the deprivation of parental authority was a measure of last resort applicable only in a situation where it was impossible to protect a child ’ s rights and interests in another way. It is not for this Court to interpret the provisions of domestic law but from a reading of Article 69 grave faults are considered by the legislator as a basis for the measure applied by the domestic courts, none of which appear to be specific to this particular case.

8 . As to the balancing exercise undertaken by the domestic courts, the District Court focused entirely on the father ’ s passivity during the intervening years – an important factor, no doubt, but one which, to my mind, in the absence of a direct threat to the child ’ s well-being on the part of the father, required further evaluation. It has been held by the Court that effective respect for family life requires that future relations between parent and child be determined in the light of all relevant considerations and not by the mere passage of time (see V.D. and Others v. Russia , no. 23608/16, § 116, 23 October 2018).

9 . In this connection, the assessment of the parent-child relationship, conducted exclusively with a 10-year old boy who had not seen his father for the past eight years, was one-sided and reliant on the child ’ s declarations. The right of a child to express his or her opinion, whilst an important evidential element in family proceedings of this nature, is not of itself decisive of the outcome, especially when the father-son ties were to be completely truncated. The father ’ s request for a rescheduling of the assessment session was rejected for no apparent justifiable reason by the domestic court. Nor was a limited degree of contact, even if only supervised, contemplated prior to the ultimate decision. Consequently the domestic court did not have any opportunity to properly assess the father and child together. These measures would have provided important evidence in assisting the court in a fair balancing exercise prior to the decision to irreparably terminate family ties, in a situation where there were no risk factors for the child.

10 . Without such a proper assessment, and given the absence of any accompanying risks of physical or psychological danger which the father could have posed for the child, a decision of total severance of family ties solely on the basis of the father ’ s inactivity is disproportionate and consequently in violation of the applicant ’ s rights under Article 8 of the Convention.