CONCURRING OPINION OF JUDGE ELÓSEGUI

1. I agree with the finding of a violation of the Article 8 of the Convention in the present case. This concurring opinion is aimed at delving deeper into the question of the locus standi of the mother (Y.Y) in representing her child (Y.Y) in this case.

2. As I have previously affirmed in the concurring opinion in the case of A.M and Others. v. Russia (concurring opinion of Judge Elósegui and joint concurring opinion of Judges Ravarani and Elósegui, A.M. and Others v. Russia , no. 47220/19, 6 July 2021) [2] , in family-related matters under domestic civil law proceedings, where multiple parties are involved, the European Court of Human Rights encounters a number of difficulties in analysing questions of locus standi where one of the parents wants to act on behalf of the minor, in cases of an alleged violation of Article 8 ECHR.

3. In the present case, the mother complained, on her own and her child’s behalf, that the domestic authorities had failed to comply with their positive obligations under Article 8 of the Convention by failing to ensure prompt and effective enforcement of the domestic courts’ judgments determining that her son, who was a minor at the time, should reside with her. One of the criteria of the case-law of the Court governing the parents’ legal representation before the Court has been that the parent entitled to custody has locus standi to act in the name of his or her child. In the present case, after the marriage was dissolved in 2014, the child remained in the care of the mother and under her guardianship and custody (see § 7). The Court has rightly established in previous cases that the parent entitled to custody who is entrusted with safeguarding the child’s interests acts in the best interests of the child (see paragraph 43 and see Sahin v. Germany , no. 30943/96, 11 October 2001; Moog v. Germany , nos. 23280/08 and 2334/10, §§ 39-42, 6 October 2016; and K.B. and Others v. Croatia , no. 36216/13, §§ 109-110, 14 March 2017). Moreover, the mother was issued with a residence order stating that the child had to reside with her. Nor did the Russian Government dispute the mother’s locus standi (see paragraph 44). Conversely, in another Croatian case, the Government at the outset expressed their concerns about the fact that the applicant was represented by his mother in the proceedings before the Court because they saw a conflict of interests ( C v. Croatia , no. 80117/17, § 54, 8 October 2020). The Court did not accept the State’s plea in this respect, and observed that the applicant had been a minor at the time of lodging of the application, that his mother had been granted temporary custody (see paragraph 56), and that his mother was acting in the best interest of the child.

4. Furthermore, coming back to the present case, the father was allowed to intervene in the Court as a third party, submitting his own observations, proofs, documents and views as well as challenging the mother’s arguments in the proceedings before the Court. The decision to grant the child´s father leave to intervene as a third party in the proceedings was granted at the latter’s request by the Vice-President of the Section pursuant to Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of the Court. We have had a similar case in the same Section III, namely Y.S. and O.S. v. Russia , no. 17665/17, 15 June 2021, concerning the abduction of a child by her mother, taking her from Ukraine to Russia. The father, who has the custody, was invited to participate in the process and he presented his observations as a third party. In this case the abducting mother was the applicant before the Court, and she acted on behalf of the child who was living with her in Russia, even though she did not have custody of her.

5. In the present case, the Court has allowed the father to act as a third party even though he does not have custody of the child, whom he kidnapped (collected) from kindergarten and refused to return him to the mother (see paragraph 9). His applications to the Russian domestic courts for a residence order in his favour were unsuccessful, with the courts deciding that the child should reside with her mother. In sum, in my opinion the father has been adequately heard in the process not only in the domestic courts but also before the Court. Furthermore, it is difficult to establish a general rule governing the presence in the Court of the parent who is not the applicant. Nevertheless, the Court acting through the Section Presidents or Vice-Presidents can provide possible means of hearing those parties, if they so wish, without any explicit need always to designate them ex officio [3] . It is quite difficult to establish any rigid general rule in this sphere, and the Court has hitherto solved this problem in different ways, depending on the specific and concrete circumstances of each case (for the different opinions of Judges in the Court I would refer to my previous comments on the concurring opinion in A.M. and Others v. Russia , cited above, §§ 8-9).

6. The second question which arises in the present case is the attitude adopted by the child. The bailiffs were unable to find the father and to return the child to his mother for two years. It was the mother herself who finally found the child and took him with her. The child had been taken away by his father on 22 October 2015, and it was not until 8 August 2018, two years and a half later, that mother and child were reunited. Considering that the child was born on 16 March 2011, that means that he had only been three years and nine months old when he had been abducted by his father. It is quite normal that he was attached to his father, the latter’s second wife and his younger half-brother (see paragraph 31). Moreover, the father was acting unlawfully by preventing all contact between the child and his mother (see paragraph 37). However, I myself and the majority of the Judges in this judgment take the view that that is not a reason to deny the mother the right to act on her child’s behalf before the Court or to ask for a legal representative other than his mother. The latter has at all times acted in accordance with the law, and she has full guardianship of the child. She cannot be penalised with any hypothetical removal of the legal representation of her child. Moreover, in the case in hand, as we have seen in a great deal of Russian case-law concerning mothers, the Regional Bailiffs Service did almost nothing to enforce the judgment (see paragraph 30). This leads me to two conclusions. First, this is not a case where the child has to be heard directly before the Court through the intermediary of a legal representative other than the mother. In fact, the child’s rights have been fully respected by her mother, who has consistently complied with the law. There is no objective need to appoint a separate representative for the child. Secondly, and moreover, it is very difficult, nay impossible, for an international court to directly hear a child who was only seven years old when the application was lodged before the Court, on 3 September 2018.

7. The Court’s case-law includes a wide variety of situations concerning disputes between two parents (where only the parent legally holding custody can bring the case on behalf of the child) and cases relating to a dispute between one of or both the parents and the State (in which case just the biological link of a natural parent is sufficient) (see Sahin, cited above, and Moog , cited above).

8. However, where one of the parents might be suspected of committing alleged breaches of Articles 2, 3 and 8 in respect of the child, then the Court may consider the possibility that that parent is not the appropriate person to represent the child before the Court (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 103, ECHR 2014).

9. The Court’s previous case-law includes several cases relating to childcare brought, for a variety of reasons, by persons other that the legal guardians. For instance, an aunt with no parental authority over the children concerned (see N.Ts. and Others v. Georgia , no. 71776/12, §§ 52 ‑ 59, 2 February 2016); a biological mother, following the adoption of the child (see A.K. and L. v. Croatia , no. 37956/11, §§ 46-50, 8 January 2013); mothers deprived of parental authority by the State admitted as applicants on behalf of their children, who had been placed in a State institution (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000 ‑ VIII, and Diamante and Pelliccioni v. San Marino , no. 32250/08, § 146, 27 September 2011). More recently, a biological mother was accepted to act in behalf of herself and her biological son who had been given up for adoption when he was one month old (see Strand Lobben and Others v. Norway [GC], no. 37283/13, 10 September 2019).

10. There are other situations where the child was represented before the Court by a representative ad litem by the Government further to a request from the Court or because the child already had a legal defendant in his or her contracting country. Some examples are S.P., D.P., and A.T. v. the United Kingdom , no. 23715/94, Commission decision of 20 May 1996, where a solicitor bringing a complaint on behalf of children had already represented those children in the domestic court proceedings and had been appointed by the guardian ad litem . When the case was lodged with the Court, the Commission considered whether other more appropriate representatives were available, as well as the nature of the links between the solicitor and the children, the object and scope of the application introduced on their behalf and whether there were any conflicts of interests because of the alleged emotional abuse of the mother. In another very recent Section III case, in which I sat, the applicant child’s application was lodged on the authority of his legal guardian appointed in the domestic proceedings because he had no other legal parent since he was born in the USA of a surrogate mother (see Valdís Fjölnisdóttir and Others v. Iceland , no. 71552/17, § 2, 18 May 2021).

11. After this overview of case-law relating to the representation of a child, I conclude that the mother was the proper person to represent her child before the Court in the concrete circumstances of the case.

Partly Dissenting Opinion OF

Judge Seibert-Fohr

1. While I agree with the majority’s findings regarding the first applicant, I am not in a position to agree with the assumption that the first applicant had locus standi to lodge an application on behalf of the second applicant. To base this holding simply on the first applicant’s custodial rights (see paragraph 43) in a situation in which there are clear indications of a potential conflict of interest is rather rash and therefore not in line with the best interests of the child.

2. In all decisions concerning children their best interests are of paramount importance. This principle is universally accepted (see Convention on the Rights of the Child, concluded in New York on 20 November 1989) and protected under the Convention (see VavÅ™ička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, §287, 8 April 2021; Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], request no. P16 ‑ 2018 ‑ 001, French Court of Cassation, § 38, 10 April 2019, with further references; and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07 , § 135, ECHR 2010)). Pursuant to Article 3 of the Convention on the Rights of the Child, in all actions concerning children the best interests of the child shall be a primary consideration (see also Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3 § 1), 29 May 2013). This applies a fortiori to proceedings before the Court in Article 8 cases in which possible conflicts of interest are closely intertwined with questions relating to the right to respect for family life and where the interests of the child may diverge from those of the parent.

3. In the present case, the first applicant took her child with her against his will on 8 August 2018 (see paragraph 32). Shortly thereafter, that is, on 3 September 2018, she filed the application on his behalf against the non ‑ execution of the return order. Having regard to the fact that the non ‑ execution was at least in part due to the second applicant’s repeated objection to return to the first applicant (see paragraphs 27, 30 and 31), it is too rash to assume that the first applicant acted in her son’s interests when she filed the application not only on her behalf, but also on his.

4. The majority argues that the domestic courts had granted the first applicant a residence order in respect of the second applicant, thereby confirming that she was acting in his best interests. What is overlooked is the fact that the order had been issued on 22 September 2016, that is two years before the first applicant filed her application before the Court. In the meantime, the second applicant had continued residing with his father where he ultimately stayed from autumn 2015 until August 2018. According to the opinion drawn up by a psychologist on 15 May 2018, the second applicant was emotionally attached to his father, the latter’s second wife and his younger half-brother (paragraph 31). In this situation, and without any further indication of the child’s interests, it cannot simply be concluded from an order that had been issued two years earlier, that filing an application against the non-execution of the initial order was in the child’s best interests. Nor did the subsequent court proceedings provide sufficient indication of the second applicant’s best interests. The decisions given by the First Cassation Court of General Jurisdiction and the Regional Court in 2020, upholding the residence order in favour of the applicant, were largely based on A.Y.’s behaviour. Such findings are insufficient to allow the Court to conclude that the applicant, in filing the application on behalf of the second applicant, was acting in his best interests.

5. Pursuant to Article 12 of the Convention on the Rights of the Child, every child who is capable of forming his or her own views shall be assured the right to express those views freely in all matters affecting the child. The views of the child shall be given due weight in accordance with the age and maturity of the child (Art. 12 § 1). For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child (Article 12 § 2). Therefore, the Court should not assume lightly the locus standi of a parent in cases of potential conflicts of interests. This is even more so in cases entailing a risk that children get instrumentalised in custody conflicts between their parents.

6. Therefore, the parent’s custody rights cannot be decisive. While the purpose of national rules in respect of locus standi may sometimes be analogous to those contemplated by Article 34, the Court has recognised in A.K. and L. v. Croatia that the conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi . ( A.K. and L. v. Croatia , no. 37956/11 , § 46, 8 January 2013). The decisive question under the Convention is therefore whether the parent lodging an application on behalf of a child can be assumed adequately to present the child’s interests before the Court.

7. This issue has been addressed, albeit unsuccessfully so far, by several judges of the Court (see, for example, the joint dissenting opinion of Judges Koskelo and Nordén in Strand Lobben and Others v. Norway [GC], no. 37283/13, 10 September 2019 and the partly dissenting, partly concurring opinion of Judge Nussberger in Raw and Others v. France , no. 10131/11, 7 March 2013). In his concurring opinion in X, Y and Z v. the United Kingdom Judge Pettiti referred to the conflict of interests between parents and children (no. 21830/93 , 22 April 1997, Reports of Judgments and Decisions 1997 ‑ II). He considered it desirable for the Court to suggest to the parties that a lawyer be instructed specifically to represent the interests of the child alone.

8. Later, in Kruškić v. Croatia , the Court acknowledged that there may be conflicting interests between a parent and a child where an applicant also lodges an application on behalf of his or her child and that such conflict of interest is relevant to the question of whether an application lodged by one person on behalf of another is admissible (see, for example, Kruškić v. Croatia (dec.), no. 10140/13 , §§ 101-02, 25 November 2014). In its judgment in Strand Lobben v. Norway the Grand Chamber recognised that such conflict of interest may arise, but did not discern such in the circumstances of the case ( Strand Lobben and Others v. Norway [GC], no. 37283/13, § 159, 10 September 2019 ). However, in the present case, the second applicant’s objection against his return to the first applicant gave clear indication of a potential conflict.

9. The fact that the Government has not contested the applicant’s standing is not decisive (compare A.M. and Others v. Russia , no. 47220/19, § 42-43, 6 July 2021). Conflicts of interest require examination in light of the best interest of the child, irrespective of whether the respondent Government raises objections in this respect.

10. Neither can the argument persuade in the instant case that not recognising parents’ locus standi in cases of a potential conflict of interest would jeopardise the protection of children. Although the danger that the child’s interest may not be brought to the Court’s attention has led the Court to recognise locus standi in cases involving public-care measures, where the State as holder of custodial rights cannot be deemed to ensure the child’s Convention rights, the present case is substantially different as it concerns a conflict concerning parental rights. The matter was brought to the attention of the Court by the mother, while the father participated in the proceedings as a third-party intervener. Taking into account the fact that children have a natural interest in maintaining good relations with both their parents, and in view of the second applicant’s opposition to his return, I am doubtful that drawing a child into a legal dispute of this kind is in his best interests.

11. Moreover, I am doubtful that it serves the protection of the legal interests of a child in such cases if the Court delivers a judgment on the basis of submissions presented by the parent who has custody, not even if the other parent participates as a third-party intervener. What is subject of the protection of family life under Article 8 depends essentially on individual choices and preferences. What a child considers the subject of his or her family life must not necessarily coincide with the custodial parent’s views. To argue that the second applicant’s application was successful means turning a blind eye to a child’s expressed views without valid indication of what can be considered his or her best interests. Therefore, if a child raises objections against his return to one of the parents, one cannot assume that his rights are better served if the parent to whom he does not want to return brings an application to the Court arguing that the child was not brought back earlier against his will.

12. In conclusion, and without making any general presumptions regarding the second applicant’s best interests, it is important to recognise that there are cases in which it might be in a child’s best interests not to be drawn as an applicant into a legal dispute, which is essentially one between the parents. I doubt that the concerns raised above can be satisfied by a simple rule of procedure that requires separate legal representation of the child without considering whether the application itself is in fact in the best interests of the child. The Court should carefully examine in each individual application showing signs of a potential conflict of interest whether granting a parent locus standi in an application brought in a parent’s own interest is also in the best interests of his or her child. Custodial rights are insufficient grounds in this respect.

[1] Approximately EUR 650 at the current exchange rate.

[2] See also Georges Ravarani, “Third parties. Poor Relations in Proceedings before the European Court of Huan Rights”. Commemorative Book for the retirement of Prof. D. Hauser, former President of the Polish Supreme Administrative Court.

[3] I can share here Judge Pastor’s suggestion on the advisability of hearing such parties before the ECHR, although I would not support this idea of calling them ex officio hearings as interested parties. See Pere Pastor Vilanova, “Third Parties Involved in International Litigation Proceedings. What are the Challenges for the ECHR?”, in P. Pinto de Albuquerque and K. Wojtyczek (ed.), Judicial Power in a Globalized World. Liber Amicorum Vincent De Gaetano , Springer, Cham, 2019, pp. 381-93. A Spanish version Pere Pastor, “Las terceras partes involucradas en procedimientos contenciosos internacionales. ¿Cuáles son los teros para el TEDH?”, in María Elósegui, M. Carmen Morte, Ana María Mengual y Guillermo Cano (Coords), Construyendo los derechos humanos en Estrasburgo: El Tribunal Europeo de Derechos Humanos y el Consejo de Europa. La organización internacional explicada por sus funcionarios españoles con ocasión del 60 aniversario del TEDH y 70 del COE , Tirant lo Blanc, Valencia, 2020. ISBN 978-84-13-55399-3.