Information Note on the Court’s case-law 224
December 2018
Khusnutdinov and X v. Russia - 76598/12
Judgment 18.12.2018 [Section III]
Article 8
Article 8-1
Respect for family life
Domestic courts’ refusal to return child to father with reference to her wish to remain with grandparents: no violation
Facts – The first applicant lodged the application on his own behalf and on behalf of his daughter, the second applicant, who was a minor at the material time.
The second applicant had lived with the first applicant and her mother from her birth in 1998 until – immediately before her mother’s death in December 2008 – she was handed over, as a temporary arrangement, to her maternal grandparents who lived in Uzbekistan. In March 2009 the grandparents refused to return the second applicant to her father. In September 2010 the first applicant applied to a court in Russia, which rendered a judgment, upheld on appeal, refusing his daughter’s return to him by reference to her wish to remain living with her grandparents.
The applicants complain that the domestic authorities’ refusal to order the second applicant’s return from her grandparents to the first applicant had violated their right to respect for their family life.
Law – Article 8
(a) Admissibility – The position of children under Article 34 deserved careful consideration. Children generally had to rely on others to present their claims and represent their interests, and might not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense. A restrictive or technical approach was therefore to be avoided and the key consideration in such cases was that any serious issues concerning respect for a child’s rights should be examined.
The first applicant was the second applicant’s only surviving natural parent; he was in conflict with his mother-in-law, who had refused to return his daughter to him after a temporary stay and who had subsequently been appointed the girl’s guardian by the Uzbek authorities. It was not clear whether the first applicant had still been entitled to act on his daughter’ behalf in Russia as the decisions of the Uzbek authorities had never been officially recognised there. The decisive factor was that there was a conflict between a natural parent and a State-appointed guardian over a minor’s interests. Consequently, even though the first applicant had been deprived of parental authority, his standing as the natural father sufficed to afford him the necessary power to apply to the Court on his daughter’s behalf, in order to protect her interests which otherwise risked not being brought to the Court’s attention.
(b) Merits – There was no reason to doubt that the domestic courts’ decisions had been based on the best interests of the child. In particular, the domestic courts had taken into account that the child had expressed a clear wish to remain living with her grandparents. She was thirteen years old at the time and thus already able to form her own opinion on the matter and to understand its consequences. As soon as children became mature and able to formulate their own opinion on their relationship with their parents, the courts had to give due weight to their views and feelings and to their right to respect for their private life.
There was no evidence that the first applicant had ever asked for a psychological expert examination of his daughter. She had been thirteen years old when she was heard by an Uzbek court on the question of her return to her father and had been assisted by a specialist from the childcare authorities. In such circumstances, the domestic courts could reasonably consider that her statements reflected her true wishes. The Court was therefore not persuaded that the failure to obtain a psychological expert opinion constituted a flaw in the proceedings.
The first applicant had chosen to apply to a Russian court despite the fact that his daughter lived with her grandparents in Uzbekistan, while he himself lived in the USA. That choice had inevitably affected the length of the proceedings, making it necessary to adapt the hearing schedule to enable the parties to travel from Uzbekistan and the USA to Moscow where the hearings were held and, most importantly, to send international requests for assistance to the Uzbek authorities to help establish relevant facts. It was true that there had also been several delays in the proceedings which were attributable to Russian authorities. However, overall, the domestic courts appeared to have dealt with the proceedings, which lasted slightly more than one year and eight months at two levels of jurisdiction, with the requisite diligence.
Although it was already clear in March 2009 that his parents-in-law had no intention of returning his daughter to him, it was not until September 2010 that the first applicant had applied to a court. Indeed, he had remained passive during the first year and a half after his separation from his daughter and visited her only once during all that time even though her whereabouts were known to him at all times. There was no evidence that he had made other attempts to visit her and had been prevented from doing so by her grandparents. Nor had he applied to the competent Uzbek authorities, in particular the courts, for assistance in recovering his daughter, although that course of action seemed to be the most logical one, given that his daughter was in Uzbekistan and under the jurisdiction of the Uzbek authorities.
It followed that, apart from lodging several complaints with the Russian consular authorities, the first applicant had not taken any meaningful action to try and recover his daughter during the first year and a half of their separation. He had therefore placed the task on the Russian consular authorities, which manifestly lacked power to influence the situation in Uzbekistan, instead of being proactive himself. That initial period turned out to be crucial for his relationship with his daughter. Indeed, already in October 2009, almost a year before the first applicant’s application to a Russian court, his daughter started to say that she preferred to remain living with her grandparents. The Court was therefore not convinced that the alleged delays in the domestic proceedings resulted in the de facto determination of the case, as his daughter’s opinion had apparently already been formed by the time those proceedings began. It was the first applicant’s passivity during the crucial initial period of separation that seemed to have influenced the outcome of the case by weakening the bond between the applicants and by making his daughter used to living with her grandparents and unwilling to change that arrangement.
In such circumstances, the domestic courts’ decision to follow the child’s wishes and to refuse her forcible and immediate return to the first applicant could be taken to have been made in the interests of the child, having regard to the length of the girl’s stay with the grandparents, her attachment to them and her feeling that their home was her own.
The decision at issue had been reached following adversarial proceedings in which the first applicant had been placed in a position enabling him to put forward all arguments in support of his application for his daughter’s return and he also had had access to all relevant information relied on by the courts. The decision-making process had been fair in so far as it allowed the first applicant to present his case fully and the second applicant’s opinion to be heard and taken into account as much as possible in a situation where the proceedings had taken place in Russia while she resided in Uzbekistan. The reasons advanced by the domestic courts were relevant and sufficient. Accordingly, by refusing to order the second applicant’s return to her father, the domestic courts had not overstepped their wide margin of appreciation.
Conclusion: no violation (five votes to two).
(See also Hromadka and Hromadkova v. Russia, 22909/10, 11 December 2014, Information Note 180; Siebert v. Germany (dec.), 59008/00, 9 June 2005; Scozzari and Giunta v. Italy [GC], 39221/98 and 41963/98, 13 July 2000, Information Note 20; P., C. and S. v. the United Kingdom (dec.), 56547/00, 11 December 2001, Information Note 44; and Hokkanen v. Finland, 19823/92, 23 September 1994)
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This summary by the Registry does not bind the Court.
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