Communicated on 25 September 2015
FIRST SECTION
Application no. 36701/13
Oleg Aleksandrovich KAROVASHKIN and Viktoriya Aleksandrovna ALEKSANDROVA
against Russia
lodged on 6 May 2013
STATEMENT OF FACTS
The applicants, Mr Oleg Aleksandrovich Karovashkin and Ms Viktoriya Aleksandrovna Aleksandrova, are Russian nationals, who were born in 1970 and 1988 respectively and live in Volsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background events
The applicants live in a partnership and are biological parents of two minor boys, A., born in 2009, and D., born in 2011.
On 6 July 2012 the Volsk District Court of the Saratov Region (“the Volsk District Court”) deprived the applicants of their parental authority over A. and D. The court established that the applicant systematically abused with alcohol and grossly neglected their parental obligations. In particular, the court observed that the applicants were indifferent to the faith of their two children, did not paid due attention to the children’s needs and their state of health, and took no care of them, which was particularly necessary taking into account the children’s very young age. The court further noted that the applicants did not follow basic sanitary requirements with respect to A. and D., fed them with alimentation unsuitable for the children of that age, and lived in appallingly unsanitary conditions. As a result, the children were scrubby, sick and dirty; the then nine-month-old D. had interigos, maceration, helminths, diarrhea, viral infectious diseases of the eyes and upper air passages. Moreover, the applicants had regularly put their two sons in life-threatening circumstances, by abandoning them unattended in the street or at home with the result that their younger son had nearly strangled himself with a pacifier chain, and their elder son had remained in the street without warm clothes during wintertime.
The court therefore found that the applicants should be deprived of their parental authority and ordered the children’s transfer into the State care and also ordered the applicants to pay alimony for their sons’ support.
Pursuant to the judgment of 6 July 2012, A. and D. were placed to a foster home and infant orphanage respectively. They are currently staying in those institutions.
2. Proceedings for reinstatement of parental authority and return of the children
(a) Proceedings before the firs-instance court
On 17 December 2012 the applicants brought a claim before the Volsk District Court seeking reinstatement of their parental authority in respect of their two sons, and the latter’s return to them. They pointed out that they had changed their conduct and way of life, had ceased drinking alcohol, had found an employment and had a stable income allowing them to support their children financially. In the latter respect, the applicant’s pointed out that they had regularly made alimony payments pursuant to the judgment of 6 July 2012, and had no arrears in that respect. They submitted that they had a place of residence with all necessary conditions suitable for the children’s living, upbringing and development. The applicants further pointed out that they cared about their children, regularly visited them in the relevant State institutions, brought them clothes, toys, fruit and sweets. The applicants insisted that their situation had improved and that they were now fully able to assume responsibility for their children and to bring them up on their own.
On 24 January 2013 the Volsk District Court examined the case.
It heard the applicant, who maintained their claim. It also heard two representatives of State institutions in which A. and D. were held, who supported the applicant’s claim. They stated, in particular, that the applicants had regularly come to see A., who had kept his emotional attachment to his parents and had been happy to see them. The second applicant had also regularly paid visits to D., whereas the first applicant had not came to the orphanage, saying he had been busy at work. In their conversations with the officials of those institutions, the applicants had expressed their wish to take the children back home.
A representative of a local guardianship and custody agency, Ms P., objected to the applicants’ claim, saying that they had not changed their attitude to their parental obligations, that they remained irresponsible and were not ready to bring their children up, as had been shown by a diagnostics of child-parent relationship. Ms P. also pointed out that the applicants’ living conditions remained inadequate and inappropriate for the children to live there. In particular, there was no heating, no necessary furniture; the applicants lived with a big dog, which might pose a danger to little children.
The court found it established that, indeed, the applicant had recently changed their conduct and way of life; that they had stopped abusing with alcohol, had found a job, had tidied up their housing and were keeping it in order; that they had received satisfactory references from their place of residence and positive references from their employers; that they regularly paid alimony payments and had no arrears in that respect; that they paid frequent visits to their elder son A., and the second applicant regularly came to see her younger son D.
At the same time, the court considered that at the moment the applicant’s reinstatement in their parental authority as well as the children’s transfer to them would be contrary to the latter’s interest. To that end, the court referred to the materials of civil case no. 2-860(1)/2012 for stripping off the applicants’ parental authority examined earlier that year and those of criminal case no. 55/2012 in which the second applicant had been convicted of a failure to fulfil duties on upbringing of minors combined with cruel treatment of minors by a judgment of a justice of peace on 10 September 2012.
The court stated, in particular, that the materials at hand revealed that the applicants had neglected their parental duties in respect of their children not once but rather on a regular, continuing basis for several years since 2009, when A. had been born. Thus, between 5 February and 2 July 2009, 14 October 2010 and 14 April 2011 and since 8 September 2011 onwards the applicants’ family had been listed in a register of families in a socially dangerous situation and had been monitored by a competent social authority because the applicants had abused with alcohol and had failed to ensure a safe environment for their children. The family had been excluded from that register on two occasions, as the social work with the applicant had brought positive results, but then included in the register again, as the applicants continued their abusive consumption of alcohol.
The materials of civil case no. 2-860(1)/2012 also contained reports on inspections of the applicants’ living conditions on 23 September, 19-21 and 30 December 2011, 17 February, 30 March, 5 and 6 April, 2 and 6 May 2012, which stated that during each inspection one of the applicant or both of them had either been in a state of alcohol intoxication or had shown symptoms of an alcohol withdrawal syndrome, and that the sanitary conditions of life had always been unsatisfactory.
The Volsk District Court noted that the evidence examined in the context of civil case no. 2-860(1)/2012 enabled it to conclude that for a prolonged period of time, starting from the moment when their first son had been born, the applicants had adopted a negligent attitude towards fulfilment of their parental duties, that they had developed an established position of indifference and disregard to their children, and that relevant social work that had been carried out with the applicant had only changed the applicants’ conduct and attitude for a short while.
Against that background, the court considered that a short period that had elapsed since the moment when the applicants had been deprived of their parental authority did not suffice for the applicants truly to change not only their way of life but also their attitude towards their parental obligations, to enable them to realise their guilty conduct towards their children.
The court went on to note that the applicants’ statements at the hearing made it clear that they refused to admit that they had repeatedly failed to fulfil their parental duties and that they considered that depriving them of their parental authority had been the result of hostile and biased attitude towards them on the part of the social authorities.
The court further relied on a report on the applicants’ psychological expert examination carried out upon the court’s order. According to the court, it followed from the report that the relations between the applicants and their children were of a conditional, superficial nature, that the applicants did not know their children well although they, and particularly the second applicant, very frequently came to see their sons. Despite such regular contacts, the applicants had not developed a deep sincere attachment towards their children; the latter’s feelings and emotions remained closed to the applicants, as had been shown during the expert examination. According to the court, the applicants’ love and attention to their children were of an external nature, enabling them to demonstrate to the others their parental feelings. In this latter respect, the court referred to a witness from criminal case no. 55/2012 against the second applicant to the effect that the latter had stated during her visits to the orphanage where D. was kept that she needed a certain number of such visits in order to report that to a court.
The Volsk District Court further considered that the fact that the applicants had created an appearance of material welfare was insufficient to grant their relevant claim, that their actions did not demonstrate their wish not only to have themselves reinstated in their parental authority but also to return their children to the family, to give them parental love and care.
The court therefore found that granting the applicants’ claim would be contrary to their children’s interests, and rejected it accordingly.
(b) Proceedings before an appellate court
On 27 March 2013 the Saratov Regional Court upheld the judgment of 24 January 2013 on appeal. In noted, in particular, that the first-instance court had not been furnished with any incontestable evidence confirming that the children’s transfer to their family would have positive effect and would not entail any risk to their lives or health, and that the Voslk District Court had rightly concluded that the continuous deprivation of the applicants of their parental authority was based on relevant and sufficient grounds in view of the established fact of imminent danger for the children posed by their parents.
B. Relevant domestic law and practice
Article 72 of the Russian Family Code provides in its relevant parts that parents or one of them may be reinstated in their parental authority if they have changed their conduct, way of life and/or attitude towards their child’s upbringing. Reinstatement in parental authority is made by a court, upon a request of a parent deprived of parental authority. In the same proceedings, the court may also examine a claim for return of a child to the parents, or to one of them. The court, with due regard to a child’s opinion, may reject the parents’ claim on reinstatement of parental authority, if such reinstatement stands in conflict with the child’s interests.
In paragraph 19 of ruling no. 10 “On application by the courts of legislation when resolving disputes concerning upbringing of children” dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular, that when examining a claim for reinstatement of parental authority, a court shall check whether the parents deprived of their parental authority have changed their conduct, way of life and/or their attitude towards their child’s upbringing.
COMPLAINTS
The applicants complain under Article 8 of the Convention that the domestic courts’ refusal to reinstate them in their parental authority and return them their two sons constituted an unjustified interference with their right to respect to their family life.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their family and/or private life under Article 8 § 1 of the Convention as a result of the domestic authorities’ refusal to restore their parental authority over their two children, A., born in 2009, and D., born in 2011, and to return the children to them?
If so, was that interference “in accordance with the law” and “necessary” in terms of Article 8 § 2?
In particular, were the reasons adduced by the domestic courts “relevant and sufficient”?
2. Were the applicants sufficiently involved in the decision-making process in the proceedings concerning the restoration of their parental authority over their two children and their return to the applicants’ family (see, e.g., Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004, and A.K. and L. v. Croatia, no. 37956/11, §§ 62-64, 8 January 2013)?
In particular, did the applicants have access to all relevant information relied on by the domestic courts in his case? Were they put in a position enabling them effectively to put forward all the arguments in support of their relevant claim?
Full & Egal Universal Law Academy