DISSENTING OPINION OF JUDGE SERGHIDES

1 . This case concerns a child-residence dispute. The applicant complains about the making of a residence order in respect of his son (A.) in favour of the boy ’ s mother (Ch.). He also complains about the interim order prohibiting him from contacting his son pending the residence proceedings. He relies on Article 8 of the Convention, Article 14 of the Convention in conjunction with Article 8, and Article 5 of Protocol No. 7 to the Convention. To my regret, the complaint regarding the interim order under Article 8 and the complaint under Article 5 of Protocol No. 7 were dismissed by the Court (by a majority) as manifestly ill-founded, and thus inadmissible, leaving no room for an examination on their merits.

2 . I agree with the majority that the decision to make a resident order in favour of the mother amounted to an interference with the applicant ’ s right to respect for his family life (see paragraph 69 of the judgment).

3 . Where I respectfully disagree with them, however, is that, under the circumstances of the case, there has been no violation of Article 8 and of Article 14 read in conjunction with Article 8.

I. Complaint un der Article 8 of the Convention

4 . It is important to note that the scope of the residence order in favour of the mother (Ch.) was limited to determining where A. would live; it did not affect A. ’ s legal relationship with the applicant, nor did it take away the applicant ’ s parental authority. It is also significant that the applicant was subsequently granted contact rights.

5 . According to the Court ’ s case-law, in reaching decision s on child ‑ care measures, national authorities and courts are often faced with a task that is extremely difficult. Equally, the Court does not lose sight of the fact that the national authorities had no other choice but to grant a residence order in favour of one of the two separated parents, as the domestic law does not provide for the possibility of granting a shared residence order (see Antonyuk v. Russia , no. 47721/10, § 121, 1 August 2013).

6 . It is not the Court ’ s task to take the place of the domestic authorities in deciding in whose favour a residence order should be given in respect of a child of divorced parents. However, in this sphere, the Court ’ s review is not limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith; it must determine whether the reasons adduced by the domestic courts in child residence proceedings were relevant and sufficient (see Gruzdeva v. Russia (dec.), no. 13553/09, § 71, 8 July 2014). In particular, the Court has competence to ascertain whether the domestic courts, when taking s uch a decision, conducted an in ‑ depth examination of the entire family situation and a whole series of relevant factors and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see the case-law cited in the General Principles section of the judgment). A failure to make a sufficiently thorough examination will amount to a violation of Article 8 (see Antonyuk , cited above, § 146). By contrast, if the domestic courts examined the question at issue with care and in line with the principles laid down by the Court ’ s case-law, the Court would require very strong reasons to substitute its own assessment for that of the domestic courts.

7 . In line with the principles and case-law outlined above, I will therefore examine whether the domestic authorities in the present case made an in-depth examination of the entire family situation and of all relevant factors. The domestic authorities, while noting that both parents possessed moral, personal and other qualities rendering them capable of raising a small child and that the child was equally attached to both of them (see paragraphs 21 and 38 of the judgment), gave two reasons for their decision to grant a residence order in favour of the mother. They considered, firstly, that by reason of his very young age, A. should live with his mother. Secondly, they referred to the fact that A. had lived with his mother for some time and that a change to his established way of life would have a negative impact on his psychological state. I will examine the two reasons in turn.

8 . As regards the first argument that a child below a certain age should live with the mother, this was most fully set out in the childcare authority ’ s report of 22 June 2010 (see paragraph 15 of the judgment). The report stated that it was particularly important for a child to be raised by the mother until the age of five or six and that a lack of maternal care during that period could result in the child developing “stubbornness, surliness, hysterical reactions and inadequate social adaptation”. It is significant that the report was formulated on the basis of general assumptions, without any reference to the particular circumstances of the case and without any consideration of the situation of the family in question or the needs of A., the child in question. Although they based their decision on that report to a significant degree, the domestic courts failed to assess it and merely endorsed its findings. They made no meaningful attempts to verify whether the report had been prepared after a thorough examination of the entire family situation and of all relevant factors.

9 . Nor did the domestic courts themselves (see paragraphs 38 and 40 of the judgment), while advancing A. ’ s young age as the main reason for the decision to grant the residence order to the mother, refer to any circumstances of a factual, emotional, psychological, material or medical nature specifically concerning A. and confirming his stronger attachment to the mother or her better parental abilities. They limited their examination of this issue to stating that the applicant ’ s request for a residence order was premature because the child had not reached “a conscious age”. It is also revealing that even before beginning its examination of the case, in its decision on the interim measure, the district court forbade the applicant from contacting his son, finding that such contact “might complicate or make impossible the execution of the forthcoming judgment” (see paragraph 11 of the judgment). I cannot but conclude that the domestic courts simply assumed from the very outset that women were able to take better care of small children and that it was therefore always in the interests of small children to reside with the mother rather than the father. Such an assumption fails to take into account the variety of family situations and their relevance for the assessment of the best interest of the child, and moreover indicates differing treatment on the basis of sex. Article 8 cannot, however, be interpreted as granting a preferential right to obtain child custody to one or other of the parents (see Donát v. the Czech Republic (dec.), no. 43252/98, 19 October 1999), i rrespective of the child ’ s age.

10 . I will now turn to the second reason advanced by the childcare authorities and the courts – namely that a change of residence could have a negative impact on A. ’ s psychological state because he had lived with his mother at her place of residence for some time and attended a nearby nursery school (see paragraphs 23 and 38 of the judgment). It is to be noted that the domestic authorities did not rely on any psychological or other expert evidence in support of their finding that a change of residence would be traumatic for A. It is significant that the experts found that after living with the mother, and separately from the father, for some time A. was still equally attached to both parents (see paragraph 21 of the judgment). Nor did the domestic authorities refer to any evidence showing that A. was more socially integrated at the mother ’ s place of residence (where he had recently moved after his parents ’ separation) than at the father ’ s place of residence (where he had lived and attended a nursery school during the first years of his life). It therefore appears that the domestic authorities judged that there was a risk of psychological trauma solely on the basis of the mere passage of time spent with the mother after the separation and while the residence order proceedings were pending. As the Court has held on many occasions, effective respect for family life requires that future relations between parent and child should not be determined by the mere passage of time (see the case-law cited in the General Principles section of the judgment). However this is what happened in the present case (compare Jucius and Juciuvienė v. Lithuania , no. 14414/03, § 32, 25 November 2008).

11 . As the Court has also held in many cases concerning a person ’ s relationship with his or her child, the procedural requirements implicit in Article 8 establish a duty to exercise exceptional diligence in view of the risk that the passage of time owing to a procedural delay may result in the de facto determination of the matter (see, inter alia , W. v. the United Kingdom , 8 July 1987, § 65, Series A no. 121; Hoppe v. Germany , no. 28422/95, § 54, 5 December 2002; Süß v. Germany , no. 40324/98, § 100, 10 November 2005 ; and Gobec v. Slovenia , no. 7233/04 , § 142, 3 October 2013 ).

12 . In my view, the present case should have been treated with particular urgency, given the ongoing lack of contact between the applicant and his son. Indeed, in the previous cases examined by the Court the lack of contact weighed heavily in favour of the finding that a procedural delay – even a relatively short one – amounted to a violation of the exceptional diligence requirement of Article 8 (see, for example, W . v. the United Kingdom, cited above, § 69, where the delay was about four months; Sylvester v. Austria , nos. 36812/97 and 40104/98, § 69, 24 April 2003 , where the delay was slightly more than five months; Eberhard and M. v. Slovenia , no. 8673/05 and 9733/05 , § 139, 1 December 2009; K. v. Slovenia , no. 41293/05, § 117, 7 July 2011 ; S.I. v. Slovenia , no. 45082/05, § 72, 13 October 2011 ; Ribić v. Croatia , no. 27148/12, §§ 99 and 100 , 2 April 2015 ; and, by contrast, Süß, cited above , §§ 101-03; Diamante and Pelliccioni v. San Marino , no. 32250/08 , § 189, 27 September 2011 ; and Gobec, cited above, § 144, all three of which concerned situations where regular contact was maintained).

13 . I do not consider that complexity alone could explain the length of the proceedings in the present case, in which only ten hearings were scheduled. There were several delays for which the Government have not submitted any satisfactory explanation. Thus, it took the domestic authorities almost three months to obtain an expert opinion (compare Sylvester, cited above, § 69). The proceedings were also stayed for three months at the applicant ’ s request pending criminal proceedings against his ex-wife. It is to be noted that the fact that the civil court was awaiting the criminal court ’ s judgment before deciding on the residence order did not release the domestic authorities, including the criminal court, from their obligation to examine the case promptly (see K., cited above, § 117). It should be noted, in particular, that the criminal conviction entered into force eight days after the proceedings had been stayed. The Government did not explain why it took the district court almost three months to resume the proceedings. I find it noteworthy that the proceedings were ultimately resumed five days after the conviction had been quashed on supervisory review and the criminal proceedings had become pending again.

14 . Given that the risk of psychological trauma in the event of a change of residence was assumed by the domestic authorities in the light of the mere passage of time, and taking into account the fact that the domestic authorities bore at least partial responsibility for that situation through the procedural delays attributable to them, the fact that A. had lived with his mother while the residence order proceedings were pending, although relevant, cannot in itself be regarded as sufficient grounds for deciding in favour of the mother, in the absence of other valid reasons.

15 . No other reasons were advanced by the domestic authorities. The applicant submitted a number of documents to the courts concerning his ex ‑ wife ’ s criminal conviction and his and his ex-wife ’ s respective incomes, living conditions, working schedules and character references. The domestic courts found that the mother ’ s criminal conviction was not decisive and dismissed all the other factors as irrelevant (see paragraph 38 of the judgment).

16 . As regards Ch. ’ s criminal conviction, the domestic courts merely stated that the incident had been prompted by the personal hostility between the applicant and Ch., caused by a disagreement on the issue of their son ’ s residence and education. They therefore considered that Ch. ’ s criminal conviction, not final at the relevant time, was not a sufficient reason for making a residence order in favour of the applicant (see paragraph 38 of the judgment). It is not the Court ’ s task to give a final ruling on the matter. However, one must note that Ch. was convicted of a violent criminal offence. It was established that she had physically assaulted the applicant in front of their child and, in particular, that she had snatched the child by force from the applicant before starting to hit the applicant (see paragraph 20 of the judgment). It is also significant that this incident was one of the manifestations of Ch. ’ s persistent refusal to allow any contact between the applicant and his son. Given the seriousness of the situation and the fact that it was directly relevant to the best interests of the child, the Court considers that it required a more thorough analysis and examination than can be found in the decisions of the domestic courts (see, for similar reasoning, M.S. v. Ukraine , no. 2091/13, §§ 81 and 82, 11 July 2017).

17 . Turning to the other factors mentioned by the applicant, it is to be noted that the Government disputed the applicant ’ s assertions regarding his superior personal qualities, income, living conditions and working schedule. It is not the Court ’ s task to take the place of the national authorities and to establish the disputed facts. I observe, however, that the applicant submitted a number of documents to the domestic courts in support of his arguments. Nevertheless, the domestic courts rejected them in summary fashion without making any meaningful attempt to analyse the applicant ’ s and Ch. ’ s respective incomes, living conditions or working schedules in the light of the adduced evidence, finding that those factors were irrelevant for their assessment. It is my humble view that these factors might have been relevant for determining the best interests of the child (see Antonyuk , cited above, § 134, and, mutatis mutandis , Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010 ). Accordingly, the domestic courts failed to safeguard the Convention right in question adequately, by omitting to duly consider factors that were relevant under the Convention (see, by contrast, Gruzdeva v. Russia (dec.), no. 13553/09, §§ 72-77 , 8 July 2014 , and Malinin v. Russia , no. 70135/14, § 71, 12 December 2017 , where the domestic courts had carefully assessed those and other factors in their decisions).

18 . I conclude from the above that the domestic courts did not conduct an in-depth examination of the entire family situation and of all relevant factors and that their decisions were based to a significant degree on a general assumption in favour of mothers, and also on the mere passage of time while the residence-order proceedings were pending, flawed as they were with delays. It follows that the decision-making process was deficient and did not therefore allow the best interests of the child to be established. I accordingly propose that the domestic authorities did not adduce relevant and sufficient reasons for their decision to grant a residence order in favour of the child ’ s mother.

19 . Lastly, as regards the Government ’ s argument that the applicant was entitled to apply for a reconsideration of the residence arrangements after the child had reached “a more conscious age”, my view is that decisions taken on matters of child custody or residence may well prove to be irreversible. Thus, where a residence order has been made in favour of one of the parents, the child in question may in the course of time establish a routine involving that parent and have his personal bond with the other parent weakened. It might not be in his interests to disturb his established way of life by reversing a previous residence order. It follows that this is a domain in which there is an even greater call than usual for protection against arbitrary interferences (see, mutatis mutandis , W. v. the United Kingdom, cited above , § 62). I am not therefore convinced that a highly uncertain possibility of a future change in residence arrangements could absolve the domestic authorities from complying with their Convention obligation to conduct an in-depth examination of the situation before deciding on a child ’ s residence arrangements.

20 . In view of the above, and notwithstanding the domestic authorities ’ margin of appreciation, I find that the interference was not proportionate to the legitimate aim pursued.

21 . Consequently, I find that there has been a violation of Article 8 of the Convention on account of the making of a residence order in respect of the applicant ’ s son in favour of the boy ’ s mother, for the reasons explained above.

II. Complaint under Article 14 of the Convention, take n in conjunction with Article 8

22 . The applicant also complained that the decision to grant a residence order in respect of his son in favour of the boy ’ s mother amounted to discrimination on grounds of sex. His complaint is based on Article 14 of the Convention, taken in conjunction with Article 8.

23 . The issue here is whether the enjoyment of the applicant ’ s right to respect for his family life as set forth in Article 8 of the Convention was secured without discrimination on a ground of sex, contrary to Article 14 of the Convention. In assisting the Court in interpreting and applying the provisions of these Articles, the principle of effectiveness, which is inherent in the Convention, should be employed as a tool. According to this principle, the interpretation and application of the Convention provisions should be made in a practical and effective manner, based on their texts and according to their scopes and purposes. Bearing this principle in mind, as I also did when examining the complaint under Article 8, I will now examine the complaint under Article 14 taken in conjunction with the former Article.

24 . It is the Court ’ s established case-law that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in relevantly similar situations (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008). I must therefore first examine whether the applicant suffered a difference in treatment.

25 . In the instant case it is to be noted that the domestic childcare authorities, and then the courts, based their decision to make a residence order in favour of the child ’ s mother on two main grounds.

26 . Firstly, with regard to the domestic authorities ’ finding that, by reason of his very young age, A. should live with his mother, it should be observed that the difference in treatment complained of does not arise from the wording of the domestic provisions. Russian law does not make any distinction between the sexes, both men and women being equally eligible to obtain a residence order in respect of their child, irrespective of the child ’ s age. The difference in treatment at issue was allegedly based on what was described by the applicant as a well-established practice, according to which a residence order in respect of a small child was almost always made in favour of the mother. As the Court has already found, difference in treatment potentially contrary to the Convention does not have to be based on the domestic legal provisions; it may result from a de facto situation, such as established practice (see E.B. v. France [GC], cited above , § 74 , and Zarb Adami v. Malta , no. 17209/02, §§ 75-76, ECHR 2006 ‑ VIII).

27 . It should be observed that the Government, on whom the burden of proof lay, did not produce statistical information on the frequency of the reliance on a child ’ s young age as the decisive reason for making a residence order in favour of the mother; this alone could have provided an accurate picture of administrative and judicial practice and established the absence of a difference in treatment between mothers and fathers as regards very young children (compare E.B . v. France [GC], cited above, § 74) .

28 . It is also significant that the domestic authorities in the present case clearly based their decision on a general assumption that it was in the interests of small children to reside with the mother rather than the father, without any reference to the particular circumstances of the case in question and without any consideration of the particular family situation (for a detailed analysis of this ground, see §§ 8-9 of this opinion). The crucial point is that it was prima facie considered to be in the interest of any small child to live with the mother (compare Zaunegger v. Germany , no. 22028/04, § 46, 3 December 2009).

29 . As regards the second ground – that the child had lived with his mother for some time and that a change to his established way of life would have a negative impact on his psychological state – this had nothing to do with any consideration relating to the applicant ’ s sex. It referred to a de facto situation and its anticipated consequences for the best interests of the child (for a detailed examination of this ground, see §§ 10-14 of this opinion).

30 . Nonetheless, these two main grounds form part of an overall assessment of the child ’ s situation. For this reason, I propose that they should not be considered alternatively, but concurrently. Consequently, the illegitimacy of one of the grounds has the effect of contaminating the entire decision (see E.B . v. France [GC] , cited above, § 80).

31 . It is to be noted that the childcare authorities ’ report of 22 June 2010 relied on one ground only – the child ’ s young age – in respect of its recommendation that the child should live with the mother. That ground alone was therefore considered to be sufficient for the mother to be preferred to the father. It was not until 23 December 2010 that the second ground was relied on for the first time by the childcare authorities, in addition to the child ’ s age. In my view, the manner in which the childcare reports, and in particular the report of 22 June 2010, were phrased was revealing in that the child ’ s age was a determining factor.

32 . The domestic courts in turn relied on both grounds, without it being possible to conclude, on the basis of the texts of the judicial decisions, that one of them was predominant or that one of them alone would have been sufficient for them to decide in favour of the mother. It is, however, clear that the child ’ s young age was at the centre of the deliberations of the domestic courts, which reached their decisions in the light of the recommendations made by the childcare authorities. That ground was therefore omnipresent at every stage of the proceedings (compare E.B. v. France [GC], cited above, §§ 82-88).

33 . It should be stressed that the reference to the applicant ’ s sex was, if not explicit, at least implicit. By relying on the child ’ s young age as one of the reasons for making a residence order in favour of the mother, the domestic courts assumed that women were able to take better care of small children than men. The influence of the applicant ’ s sex on the assessment of his application for a residence order has therefore been established and, having regard to the foregoing, was a significant factor leading to the decision to grant the residence order in favour of the mother.

34 . The Court has already found that, while differences may exist between a mother and father in their relationship with their child, as far as the role of taking care of the child during the period corresponding to parental leave – that is, on expiry of the period of maternity leave, which is intended to enable the woman to recover from childbirth and to breastfeed her baby if she so wishes – is concerned, men and women are “similarly placed” (see Konstantin Markin v. Russia , no. 30078/06, § 132, 7 October 2010). This is a fortiori true for the period after the end of the parental leave, as in the present case.

35 . The applicant (the father) therefore suffered a difference in treatment on account of his sex, as compared to a person in a relevantly similar situation (the mother).

36 . Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention ’ s requirements rests with the Court (see Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008 , and Konstantin Markin, cited above, §§ 125 and 126).

37 . The Government did not provide any justification for a difference in treatment in the present case.

38 . The Court has repeatedly held that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention (see, among many other cases, Schuler-Zgraggen v. Switzerland , 24 June 1993, § 67, Series A no. 263; Zaunegger, cited above, § 51; and Buchs v. Switzerland , no. 9929/12, § 67, 27 May 2014). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. States may not impose traditional gender roles and gender stereotypes. In particular, it is significant that contemporary European societies have moved towards a more equal sharing between men and women of responsibility for the upbringing of their children and that men ’ s caring role has gained recognition. Gender stereotypes, such as the perception of women as primary child-carers and men as primary breadwinners, cannot therefore, by themselves, be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, origin, colour or sexual orientation (see Konstantin Markin, cited above, §§ 127 and 140-43).

39 . In view of the foregoing, I consider that the decision to make a residence order in favour of the mother on the grounds of the child ’ s young age cannot be said to be reasonably or objectively justified. Finally, I conclude that this difference in treatment, of which the applicant was a victim, amounted to discrimination on grounds of sex.

40 . Consequently, I find that there has been a violation of Article 14 taken in conjunction with Article 8.

III. General conclusion

41 . I conclude that there has been a violation of Article 8 and Article 14 taken in conjunction with Article 8 of the Convention. This conclusion would have led me to award the applicant an amount in respect of non ‑ pecuniary damage for the violation of the above provisions, as well as an amount for costs and expenses; nevertheless, as I am in the minority, the estimation of such amounts would be purely theoretical, and so I will refrain from speculating on them.