Communicated on 4 June 2015
FIRST SECTION
Application no. 77546/14
Elita Khaidovna MAGOMADOVA
against Russia
lodged on 5 December 2014
STATEMENT OF FACTS
The applicant, Ms Elita Khaidovna Magomadova, is a Russian national, who was born in 1974 and lives in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 10 November 2009 the applicant and her partner E. had a son, I.
Following their separation in November 2010, the applicant and E. agreed that I. should live with the applicant and that E. should regularly visit him.
On 22 October 2013 E. kidnapped the boy and brought him to Grozny in Chechnya.
The applicant followed them to Grozny where she attempted to visit her son, but was prevented by E.
On 18 February 2014 the applicant applied to the Leninskiy District Court of Grozny for a residence order in respect of I. She submitted that from his birth and until his abduction by his father last October, I. had lived with her and they were very attached to each other. She had a stable income, a spacious flat, good character references and was capable of providing I. with everything necessary for his living, education and development. She also complained that E. prevented her from seeing her son.
On 19 March 2014 the childcare authority of the Chertanovo District of Moscow visited the applicant’s flat in Moscow and found the living conditions suitable for a small child.
On 19 March 2014 the Justice of the Peace of the 230 Court Circuit of the Chertanovo District of Moscow convicted E. of assault and battery. The justice of the Peace found E. guilty of assaulting and injuring the applicant in August 2013 and sentenced him to a fine.
On 9 April 2014 the childcare authority of Grozny visited E.’s flat in Grozny and found that the living conditions were suitable for a small child. The officials noted that E. lived in the flat with his mother and his son I.
On 15 April 2014 the childcare authority of Grozny issued its opinion on the case, finding that it was in I.’s best interest to remain living with his father. I. had been living with his father for a long time and had been taken good care of. He was attached to his father. E. had good living conditions and high income. I.’s mother lived in Moscow and did not participate in his upbringing.
At the hearing E. stated that I. had indeed lived with his mother until recently, but he was not at all attached to her. E. financially supported them and visited them regularly. The applicant was leading a wrong way of life and would have a bad influence on I.
On 17 April 2014 the Leninskiy District Court of Grozny rejected the applicant’s claims. It held that a residence order in respect of I. should be granted to his father, even though he did not request it. The court found that both parents had good character references, permanent employment, stable income and suitable accommodation. The fact that the applicant had higher income and better accommodation could not serve as a ground for granting a residence order to her. She was a single mother and already had a teenage daughter from her first marriage. Her daughter was in a difficult age and therefore required special attention. She moreover worked and did not therefore have sufficient time to devote to I. Due to the lack of time, she had sent I. to a nursery school. By contrast, E. worked at a managerial position, had sufficient income and lived with his mother who helped him raising I. I. was attached to his father. In view of the above considerations, and taking into account the opinion of the childcare authority of Grozny, the court found that it would be in I.’s best interest to live with his father.
The applicant appealed. She complained, in particular, that the residence order had been granted to E. at the District Court’s own initiative, as E. had never requested it.
On 3 July 2014 the Supreme Court of the Chechen Republic upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified. The judgment had been based on the best interest of the child, taking into account his age, his attachment to the father and the father’s ability to create proper conditions for his son’s upbringing and development.
By letter of 12 September 2014, the head of the childcare authority of Grozny informed the applicant that the official who had issued the opinion of 15 April 2014 had been disciplined. The internal inquiry had established that the opinion had been based on incorrect and incomplete information. In particular, E.’s statement that he had high income had not been checked. The finding that the applicant did not participate in I.’s upbringing had not been based on any evidence. It had not been established for how long I. had lived with each of the parents. Lastly, the fact that I. had a half-sister living with his mother had not been taken into account.
On 27 November 2014 a judge of the Supreme Court of the Chechen Republic refused to refer the applicant’s cassation appeal to the Presidium of that Court for an examination, finding no significant violations of substantive or procedural law which influenced the outcome of the proceedings.
B. Relevant domestic law
The Family Code provides that in case of the parents’ separation, the child’s residence arrangements are fixed by an agreement between them. If no such agreement can be reached, the child’s residence arrangements are fixed by a court order, having regard to the child’s best interests and his/her opinion on the matter. In particular, the court must take into account the child’s attachment towards each of the parents and the siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating conditions for the child’s upbringing and development (such as each parent’s occupation, employment schedule, financial and family situation, etc.) (Article 65).
The parent residing separately from the child is entitled to maintain contact with the child and to participate in his upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development (Article 66 § 1).
A child is entitled to express his opinion on all family matters concerning him, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his/her interests (Article 57).
The Code of Civil Procedure provides that a court must decide on the claims as they are formulated by the plaintiff. It may however go beyond the scope of such claims in cases provided by federal laws (Article 196 § 3).
COMPLAINT
The applicant complains under Articles 6 and 13 of the Convention about the refusal to grant her a residence order in respect of her son. She alleges in this connection that the domestic courts did not assess the family situation and the best interests of the child with sufficient thoroughness. In particular, they disregarded the fact that from his birth and until his abduction by E. I had lived with the applicant. Nor did they take into account that E. had a criminal record. They had not assessed properly the applicant’s and E.’s financial and family situations or work schedules. The applicant further alleges that the childcare authority of Grozny issued its opinion that I. should live with his father without meeting her or examining her living conditions.
QUESTIONS TO THE PARTIES
1. Did the refusal to grant to the applicant a residence order in respect of her child violate her right to respect for her family life, guaranteed by Article 8 of the Convention? In particular, having regard to the fact that the child was not heard by the court, examined by experts or “heard” in any other way and that the opinion of 15 April 2014 by the childcare authority of Grozny was later found to be based on incorrect and incomplete information, was the decision-making process compatible with the requirements of Article 8 (see Antonyuk v. Russia, no. 47721/10, 1 August 2013)? The Government are also requested to explain which federal laws allowed the domestic court to go beyond the claims advanced by the parties in the present case, as provided by Article 196 § 3 of the Code of Civil Procedure.
2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8, as required by Article 13 of the Convention?
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