Published on 12 February 2024

FIFTH SECTION

Application no. 53339/22 Leonid Vadymovych LEBEDYEV and Others against Ukraine lodged on 2 January 2023 communicated on 23 January 2024

SUBJECT MATTER OF THE CASE

The first two applicants are spouses and foster parents of the remaining four applicants, who are, accordingly, their foster children. The application concerns, in essence, an allegedly unlawful and unnecessary deprivation of the applicants’ foster family of the status of a “foster family children’s home” (“FFCH”) resulting in an obligation to vacate a furnished and equipped social flat. The applicants invoke, in particular, Article 8 of the Convention.

On 16 May 2013 the Solomyanska District Administration in Kyiv (“SDA”) decided to place four children, including the fourth, fifth and sixth applicants, in the foster care of the first two applicants, who had already been foster parents of the third applicant and one other child. Accordingly the applicants became foster parents of six children. By that decision their foster family was also accorded the FFCH status, which, according to applicable law, was conditioned on accepting at least five children in foster care. By the same decision, the applicants were provided with a furnished social flat equipped with necessary household items for the children. On the following day the first two applicants and the SDA entered into a contract stipulating the parties’ mutual obligations in running the FFCH project. The contract empowered the SDA to initiate the project’s termination in the event of its malfunctioning. Neither the contract, nor the decision of 16 May 2013 contained any provisions covering the parties’ rights and obligations after the foster children become of age or leave the FFCH for reasons not connected to its malfunctioning (i.e., adoption, return to biological family, etc.).

On 23 February 2022 the SDA took a new decision withdrawing the FFCH status from the applicants’ foster family as two of the foster children, who had reached majority, no longer needed foster care. The first two applicants having refused to consider placement of additional minors, the number of children remaining in their care became less than that required by law for the creation of an FFCH. The SDA’s decision obliged the applicants to vacate the flat provided for the former FFCH within one month. It contained no provisions as to where and how the applicants had to relocate or arrange for furniture and household items at their new residence.

On 26 May 2022 the Kyiv District Administrative Court allowed the first applicant’s complaint (which was joined by the second applicant as a third party) having found, essentially, that the SDA had acted outside of the applicable regulatory framework when withdrawing the applicants’ FFCH status.

On 7 September 2022 the Sixth Administrative Court of Appeal reversed that judgment on appeal by the SDA, having referred, primarily, to the legal provisions requiring the placement of at least five children in the foster care for a family to be eligible for obtaining the FFCH status.

The first applicant appealed on points of law. He submitted, in particular, that the SDA had no right to terminate their FFCH contract by taking a unilateral executive decision. He further argued that while the law did require that at least five children should be placed with the family in order for the FFCH status to be accorded, no provisions stipulated that it would be withdrawn once one of the five reaches majority, stripping the remaining children of the relevant State support. He further noted that the practice had not been homogenous. According to published statistics at the material time more than eighty functioning FFCHs raised less than five children throughout the country. The first applicant also referred to several court decisions taken in other proceedings concerning other FFCHs, which, in his view, diverged from the approach taken by the Appeal Court in his case. He argued that his case was important for the clarification of the legal provisions applicable to the termination of the FFCH projects. He also noted that by virtue of the SDA decision in his own case, his family was left to their own devices in procuring housing and household items to four foster children, for which they lacked resources.

On 17 October 2022 the Supreme Court rejected the first applicant’s request for leave to appeal on points of law citing ratione valoris grounds.

It is not apparent from the file that to date the applicants have either complied with the obligation to vacate the FFCH flat or that any enforcement action or court proceedings with a view to forceful eviction had been instituted against them.

QUESTION TO THE PARTIES

Has there been an interference with the applicants’ rights protected by Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

APPENDIX

Application no. 53339/22

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.

Leonid Vadymovych LEBEDYEV

1980

Ukrainian

Kyiv

2.

Olga Viktorivna LEBEDYEVA

1978

Ukrainian

Kyiv

3.

Vitaliy Yuriyovych LEBEDYEV

2002

Ukrainian

Kyiv

4.

Damir Mykhaylovych DZHULAY

2007

Ukrainian

Kyiv

5.

Danat Mykhaylovych DZHULAY

2008

Ukrainian

Kyiv

6.

Daminika Mykhaylivna DZHULAY

2012

Ukrainian

Kyiv