JOINT DISSENTING OPINION OF JUDGES DEDOV, LUBARDA AND POL ÁČ KOV Á

1. We regret that we cannot agree with the conclusion of the majority regarding a violation of Article 8 of the Convention in the present case. We believe that the analysis made by the majority is contrary to the Court ’ s established case-law, and more specifically to its conclusion in the recent, identical case of Leonov v. Russia (no. 77180/11, 10 April 2018). We are of the view that in the present case, as in Leonov , the decision at the domestic level 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 application for a residence order in his favour, and in which he also had access to all relevant information that was relied on by the courts. Therefore, the decision-making process was fair in so far as it allowed the applicant to present his case fully and the reasons advanced by the domestic courts were relevant and sufficient. Accordingly, by making a residence order in favour of the mother, the domestic courts did not overstep their wide margin of appreciation (see paragraphs 74 and 76 of the Leonov judgment).

2. In particular, having examined the impugned decisions of the domestic courts (see paragraphs 22 and 25 of the present judgment) , we find no reason to doubt that they were based on the best interests of the child. The domestic courts established that M. was on parental leave and was still breastfeeding the second applicant. They considered that, given the second applicant ’ s young age and the fact that after his parents ’ separation he had been brought up by his mother, it would be in his best interests to remain living with her. There is nothing to indicate that the findings reached by the domestic courts, which had the benefit of direct contact with all the persons concerned, were unreasonable and thus fell outside their wide margin of appreciation. Given that the national authorities are in principle better placed than an international judge to evaluate the evidence before them, it is not the Court ’ s task to take their place in establishing and assessing the facts and deciding what is in the best interests of the child in the present case (see, for similar reasoning, Leonov , cited above, § 72).

3. As regards the issues of hearing the child in court and obtaining an expert opinion on his relationship with each of the parents, the Court observes that, as a general rule, it is for the national courts to assess the evidence before them, including the means of ascertaining the relevant facts. It would be going too far to say that the domestic courts are always required to interview a child in court or involve a psychological expert in issues concerning a child ’ s residence, but this issue depends on the specific circumstances of each case, having due regard to the age and maturity of the child concerned (see Sommerfeld v. Germany [GC], no. 31871/96, § 71, ECHR 2003 ‑ VIII, and Sahin v. Germany [GC], no. 30943/96, § 73, ECHR 2003 ‑ VIII, both cited in the judgment).

4. Although the domestic authorities decided that a psychological expert opinion was not necessary (see paragraph 17 of the judgment), they referred to the childcare authorities ’ opinion, issued after a visit to M. ’ s place of residence, and also examined the opinion of a psychologist who had seen the family before the separation (see paragraphs 21 and 90 of the judgment). In these circumstances we are not persuaded that the failure to obtain an expert report on the child ’ s relationship with each of the parents constituted a serious flaw in the proceedings (see the conclusion of the majority in paragraph 110 of the judgment).

5. The majority also criticised the domestic courts for giving no explanation as to why they did not take into account the opinion of the St Petersburg childcare authorities (and rejected the first applicant ’ s arguments based on that opinion) concerning the supposedly better living conditions and better opportunities for child development in St Petersburg (see paragraphs 109 and 111 of the judgment). We believe that this argument is not sufficient to find a violation of Article 8 of the Convention. In Leonov , the Court was satisfied that the decision at the domestic level had been reached following adversarial proceedings in which the applicant had been placed in a position enabling him to put forward all arguments in support of his position (see Leonov , cited above, § 74). We would like to add that the role of the Court in such circumstances should be limited to the most fundamental factors affecting the child ’ s interests as provided for by the Convention (right to life, human treatment, respect of dignity). It is not the Court ’ s task to assess whose living conditions are better, who has the bigger house and who has more money to support the child ’ s development. Instead, in accordance with its well-established case-law, the Court should verify whether the domestic authorities took into account any risk to life and allegations of ill-treatment, and other factors indicating a “grave risk” (see X v. Latvia [GC], no. 27853/09, §§ 107, 111 and 114, ECHR 2013). In the present case there was an indication that such a risk existed. The first applicant ’ s former wife, M., informed the national authorities that her husband had shouted at her. According to the report of the psychologist L., this kind of behaviour reflected suppressed aggression towards M., with an intention to dominate and humiliate her. L. considered that in the event of a divorce, it would be in the child ’ s best interests to live with his mother (see paragraphs 8 and 13 of the judgment).

6. The Court has opted for the same methodology in another category of cases regarding equality of arms. In the case of C.B. v. Austria (no. 30465/06, 4 April 2013), the Court had an opportunity to examine the issue in a situation of conflicting expert opinions prepared by a private expert (in favour of the applicant) and a court-appointed expert (against the applicant because of his “disordered conduct” and dangerousness). The Court found no violation of Article 6 §§ 1 and 3 (d) of the Convention, because the refusal to admit the private expert opinion into the proceedings, the refusal to allow the private expert to testify as a witness, the refusal of the requests for additional witnesses and the refusal to put certain unspecified questions to the court-appointed expert did not put the applicant in a more unfavourable position than the opposing party and thus did not violate the principle of equality of arms in the criminal proceedings against him. The Court was satisfied that the applicant had had ample opportunity to challenge the court-appointed expert and to submit any arguments in his defence (see C.B. v. Austria, cited above, §§ 44 and 47).

7. In C.B. v. Austria the Court set forth some general principles regarding its own examination of evidence:

“39. The Court further observes that it is not within its province to substitute its own assessment of the facts and of the evidence for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them. The Court ’ s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see, among many other authorities, Vidal v. Belgium , 22 April 1992, § 33, Series A no. 235-B; G.B. v. France , cited above, § 59, and, more recently, Gregačević v. Croatia , no. 58331/09, § 63, 10 July 2012).

40. An expert in general assists in solving a question or problem raised in the proceedings that a judge is unable to solve by him- or herself. How the domestic authorities organise their system for the admission of evidence into criminal proceedings is essentially left to the member States. It is not the Court ’ s role to impose one system over another, but to ensure that the existing system in a given member State provides for sufficient safeguards to guarantee fair proceedings and respect for the equality of arms of the parties involved (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011, and Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010, with further references).

44 . ... The Court has stated above that it is not its task to organise the domestic system for admitting evidence in a given member State but to ensure that there are sufficient safeguards available for the applicant to have access to overall fair proceedings ...”

In the present case the applicant also had an opportunity to challenge the expert opinion of the Nizhniy Novgorod childcare authorities and to submit any arguments in his favour. Unfortunately, the Court did not apply the above principles and thus, in our view, deviated from its case-law in the present case.

8. Usually the Court takes into account any circumstances relating to the prevention of family contacts. The existence of such circumstances should be established beyond reasonable doubt (see, for example, S.H. v. Italy , no. 52557/14, 13 October 2015; Krapivin v. Russia , no. 45142/14, 12 July 2016; and McIlwrath v. Russia , no. 60393/13, 18 July 2017). In the present case the majority did not find any irregularities (concerning either inaction on the part of the authorities or hostile conduct on the part of the mother) apt to demonstrate that granting a residence order in favour of M. might lead to the child ’ s complete loss of contact with the father and his family. However, the majority concluded that the interference had not been proportionate to the legitimate aim pursued (see paragraph 113 of the judgment), without any analysis as to whether there had been interference or as to the nature of the legitimate aim, and without conducting the proportionality test. Instead, the Court in fact confined itself to assessing whether the reasoning of the domestic courts had been relevant and sufficient.

9. Moreover, contrary to its own conclusion under Article 8 in the present case, the Court, in examining the application under Article 14 of the Convention, acknowledged that the residence order had been based on an assessment of the best interests of the child. The Court referred to the relevant circumstances of the present case (the young age of the child, the breastfeeding, the parental leave) which should have prevailed over the alleged procedural deficiencies, leading the Court to find no violation of Article 8 (see paragraph 128 of the judgment).

10. The majority found that it was not necessary to examine whether the alleged delays in the residence-order proceedings resulted in the de facto determination of the case, because they had already found a violation of Article 8 of the Convention. We would like to stress that the domestic courts actually acknowledged that the delays in the residence-order proceedings had breached the first applicant ’ s rights (see paragraph 53 of the judgment). Although they declared inadmissible a claim for compensation lodged on behalf of the child because he had not been formally a party to the residence-order proceedings, they expressly acknowledged when examining the first applicant ’ s claim that the delays in the proceedings had created legal uncertainty as to the child ’ s residence and difficulties in his contact with the first applicant. They therefore acknowledged in substance that certain delays in the proceedings had breached the child ’ s rights too. It is obvious that the domestic courts ’ calculation of the overall length of proceedings, as well as the compensation awarded, are in line with the Court ’ s practice in Article 6 cases (see Palacheva v. Russia , no. 39814/04, § 61, 19 June 2014, and Fateyenkov and Others v. Russia , nos. 44099/04 and 9 others, 18 February 2016). We believe that the authorities acknowledged the breach of the applicants ’ rights under the Convention and granted them adequate and sufficient redress. Accordingly, the applicants may no longer claim to be victims of the violation of the length-of-proceedings aspect of Article 8 of the Convention. This could be considered an additional factor leading to the conclusion that the domestic courts examined the case thoroughly (see, by contrast, the conclusion in paragraph 112 of the judgment).

11. Lastly, we cannot accept that the deficiencies in the proceedings (summarised in paragraph 111 of the judgment) were such as to result in a violation of Article 8 of the Convention. None of those arguments (better living conditions, the termination of breastfeeding by the mother and the ending of her parental leave) were sufficient to decide the case in favour of the father. The domestic courts did not reject those arguments presented by the first applicant, but weighed them up against other arguments in favour of the mother (the psychological and emotional attachment of the child to his mother; the divorce caused by the repeated humiliation by the first applicant; the young age of the child; good living conditions, and so on). We believe that it is not for the Court to decide that since breastfeeding had stopped, the child could automatically be handed over to the father. In the absence of a clear methodology (in other words, application of the Convention standards) the Court may decide arbitrarily whether or not the reasoning of the domestic authorities was sufficient. The Court ’ s task is not to substitute its own assessment for that of the domestic authorities in the exercise of their responsibilities regarding child custody or to act as a court of fourth instance assessing every argument. The Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation, in accordance with the general principles set out in paragraph 98 of the judgment. In its appeal decision, referred to in paragraph 25 of the judgment, the Regional Court made an assessment of the case based on the same principles, set out in paragraph 5 of Resolution of the Russian Supreme Court no. 10 of 27 May 1998.