CONCURRING OPINION OF JUDGE DE GAETANO

I voted with the majority for a procedural violation of Article 8 in this case. I wish, however, to underline the very narrow grounds on which this decision is based, and its irrelevance to the outcome of the child ’ s ultimate placement.

There is no doubt that the applicant, as K.O.S. ’ s aunt, was entitled to have her views, and her offer to become the boy ’ s tutor, meaningfully considered by the court, which ultimately decided on the boy ’ s adoption by third parties, and not swept aside, as they were, on spurious grounds. To that extent, her right to “private life” was infringed (see paragraphs 66 and 67). That said, however, there is no doubt that in this case adoption was in the best interests of the child. It is inconceivable, in the particular circumstances of the case, that the domestic courts could or would have come to any different conclusion even if they had given full and ample consideration to the applicant ’ s views and had allowed her time to file the appropriate formal request for tutelage.

In other words, this is a case of a procedural flaw which nonetheless led to the right outcome as far as the child was concerned.

CONCURRING OPINION OF JUDGE YUDKIVSKA

I voted with the majority for finding a violation of Article 8 in this case, even though I believe that the courts acted not only in the best interests of the child in question, but also in accordance with the applicable legislation. Strikingly enough they were completely silent, not to say ignorant, on these two crucial points in their judgments.

The failure to provide motivated decisions is a clear violation of the principles of procedural justice set out in this Court ’ s case-law. The Court being “a watchdog of procedural justice in human rights matters at the domestic level” could not but find a violation: “a lack of procedural justice, whether administered by ... the courts, or administrative authorities, constitutes harm in itself” [1] .

1. Best interests of the child

The applicant, as an aunt of K.O.S. – apparently the closest relative capable of taking care of the child, was clearly entitled to do so. It is important to mention, however, that she at no stage offered to adopt the child. Had the applicant done so, given that she has also been raising K.O.S. ’ s sister, the situation would look rather different.

Regardless of any good reasons which she might have had for proposing tutelage rather than adoption, it is important to note that adoption is normally the priority mode of caring for an abandoned child – only adopted child status allows an orphan no longer to be considered as an orphan and to obtain full rights on a par with biological offspring.

The UN Convention on the Right of the Child deliberately left the notion of “best interests of child” undefined, so that its interpretation could take account of context and circumstances [2] . It remains undisputable, however, that among all the possible measures of protection of a child left without parental care, the most desirable one is adoption, i.e. placing him/her in a new parental care thus offering all the benefits of a permanent family.

Whilst permanent care in a form of tutelage by the applicant – a member of K.O.S. ’ s extended family – would be an excellent opportunity for him to maintain contacts with his family of origin, it would not provide him with the major advantages of being a family member. Given the very limited relations between the applicant and K.O.S. prior to the adoption (see paragraph 12), the latter ’ s adoption by a family, which would bring him up in manner appropriately replacing actual biological ties, fully served his best interests.

2. Legislative framework at the material time

There is little doubt that K.O.S. was a Ukrainian national, regardless of the applicant ’ s and the Russian Government ’ s insistence that he had been a Russian national. K.O.S. was born in Ukraine to a Russian mother lawfully residing there, and by virtue of section 7 § 4 of the Law on Ukrainian citizenship (see paragraph 43), since he had not acquired his mother ’ s citizenship, automatically became a Ukrainian national. In any case, since his mother was deprived of parental rights, at least as of July 2012 his Ukrainian nationality is unquestionable (ibid., section 12 § 3).

As noted in paragraph 36, in accordance with sections 16 and 24 of the Act on International Private Law, if the child concerned is a Ukrainian national the establishment and cancellation of tutelage and guardianship involving a foreign element are governed by Ukrainian laws.

The Family Code of Ukraine, whilst being quite a detailed on adoption by foreigners, does not provide any guidance when it comes to tutelage by a foreigner.

Article 33 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 is, however, more precise: apparently the applicant, a Russian national, could be appointed the legal guardian or tutor of K.O.S., a Ukrainian national, only if she resided in Ukraine (see paragraph 45). The purpose of the limitation is clear – to guarantee the effectiveness of tutelage or guardianship. It is incumbent on the relevant Custody and Care Authority to supervise the conditions in which a child is maintained and educated; and it would seem very difficult, indeed impossible, to conduct such supervision abroad, periodically reviewing the conditions of the child ’ s placement.

Since the applicant did not intend to move to Ukraine (at least such an intention does not transpire from the case materials submitted to the Court), the authorities ought to have assessed those specific provisions of national legislation and international treaties and explained them to the applicant. Instead, they gave her quite misleading advice, and the courts failed to clarify the applicant ’ s factual and legal situation, leaving this Court with the sole option of finding a procedural violation of Article 8.

In the present case the applicant ’ s evident benevolent intentions deserved high praise - she wanted to bring up her niece and nephew, who had been abandoned by their mother (her sister) and provide them with family care. Whatever good reasons the authorities had for not granting her request, such ignorance on their part was unacceptable. “No more humiliating reply than a contemptuous silence” as Michel de Montaigne would have it. Contemptuous silence from judicial authorities dealing with private interests of the utmost importance is in itself a violation of the Convention.

[1] See Eva Brems and Laurens Lavrysen , “ Procedural Justice in Human Rights Adjudication: The European Court of Human Rights ”, in Human Rights Quarterly , 35 (2013), p.185.

[2] Nigel Cantwell , “ The Best Interests of the Child in Inter - country Adoption ”, UNICEF 2014, p.17 .