KUIMOV v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32147/04
by Sergey Aleksandrovich KUIMOV
against Russia

The European Court of Human Rights (First Section), sitting on 15 May 2007 as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 27 June 2004,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Aleksandrovich Kuimov, is a Russian national who was born in 1958 and lives in Kirov. The Russian Government were represented by Mr P. Laptev, Representative of the Russian Federation before the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Adoption proceedings

On 6 May 2000 the Leninskiy District Court of the Kirov Region granted an application by the applicant and his spouse E. for adoption of a girl, A., who had been born on 22 October 1997.

On the same date the District Court ordered that the adoption decision be executed immediately and referred to the child’s need for individualised care.

The Government submitted that at that time A. suffered from a slight delay in development of speech functions and from systolic murmur. Her doctors declared her generally fit.

2. Placement in hospital and the child’s urgent removal

(a) A.’s placement in hospital

In autumn 2003 the applicant and E. noticed that the girl’s eyesight was deteriorating and contacted the Russian Children’s Hospital in Moscow. The hospital responded by offering an in patient examination, which the parents declined.

According to the Government, the parents of A. applied to the Kirov Regional Children’s Hospital (“the hospital”) on 2 October 2003 complaining about the child’s eye-sight, paleness of skin, vomiturition, bad appetite and limpness. It appears that prior to 2 October 2003 A. had been undergoing out patient treatment in that hospital on account of B12 deficiency anaemia which had been confirmed by bone marrow aspiration on 19 September 2003. On 9 October 2003 the medical council convened and approved a proposal to subject A. to a medical examination. As a result of the examination, it was suggested that A. might have a disease of the central nervous system. Subsequently A. was sent to the Russian Children’s Hospital in Moscow, where on 21 October 2003 the doctors diagnosed her as having acute disseminated encephalomyelitis. It appears that, despite the doctors’ recommendations, the applicant and his spouse refused to consent to hospitalising A.

On 23 October 2003 the girl was placed in the hospital for treatment for acute disseminated encephalomyelitis. The applicant’s wife stayed with her. According to the applicant, on several occasions both E. and the applicant asked the medical staff to explain the diagnosis and treatment but all their questions went unanswered.

According to the Government, on several occasions medical staff met the applicant and his spouse to explain the medical condition of A. The Government submitted that A.’s medical file had entries to that effect.

The applicant submitted that on an unspecified date his spouse E. had spotted members of staff reading A.’s medical records, which had contained information about her adoption. She warned the persons concerned that the fact of adoption was confidential and that they should not have had access to that information.

The Government denied the above-mentioned episode and submitted that the medical staff had complied with the rules on medical secrecy at all times.

On 31 October 2003 the medical staff had a conversation with E. concerning A.’s condition and the need to place her in an intensive care unit.

On 3, 4 and 5 November 2003 the hospital repeated its requests, but to no avail.

(b) Interview of 5 November 2003

The applicant alleged that on 5 November 2003 a hospital employee and a man who introduced himself as a psychotherapist visited E. and asked her some questions. According to the applicant’s wife, the interview focused mainly on her family life and was unrelated to her daughter’s state of health. During the conversation the psychotherapist accused E. of intending to harm A.’s health.

The Government confirmed that the conversation between the psychotherapist and E. had taken place on that date. They submitted that E. had impeded the medical staff from carrying out emergency medical measures in respect of A. and that such actions could have put the child’s life at serious risk. It appears that those actions raised the suspicions of the medical staff as to E.’s psychological state and that the interview was considered justified by the need to protect the A’s life. Following the interview, the psychotherapist concluded that E. “was not in need of psychiatric treatment”.

It appears that the applicant’s spouse brought court proceedings against the hospital concerning the lawfulness of the interview. By a judgment of 24 August 2005 the Oktyabrskiy District Court of Kirov dismissed the applicant’s complaint and upheld the actions of the psychotherapist as lawful and justified. It is not clear whether the applicant appealed against the judgment.

(c) Decision to place A. in an intensive care unit

As of 3 November 2003 the hospital repeatedly informed the applicant and his spouse about the seriousness of A.’s condition and the need to continue A.’s treatment in an intensive care unit of the hospital. However, the applicant and his spouse refused the requests.

On 11 November 2003 the hospital’s management informed the parents that it had been decided to place A. in an intensive care unit and to separate her from E.

The hospital authorities also warned them that if E. refused to leave the hospital they would contact the local Custody and Guardianship Agency (“the Agency”) for assistance.

The applicant submits that the notification was in reaction to his questions about the staff’s access to A.’s medical records and the psychotherapist’s visit to his wife.

The Government submit that the application to the Agency was justified by the need to secure A.’s health.

(d) Complaint to the Regional Health Department

On the following day the applicant complained to the Kirov Regional Health Department (Департамент здравоохранения Кировской области) about interference with his private life and the psychotherapist’s visit. He also queried whether it was necessary for A. to be placed in the intensive care unit.

On 9 December 2003 the Kirov municipal health department informed the applicant that a specially created committee had examined his complaint of 12 November 2003 and dismissed his submissions as unfounded.

(e) Doctors’ meeting of 8 December 2003

According to the applicant, on 5 December 2003 the hospital authorities asked the applicant to attend a doctors’ meeting about A.’s state of health, scheduled to be held on 8 December 2003 from 11.30 p.m. to 12.30 p.m. The applicant stated that he went to the hospital at the time indicated but failed to find anyone.

The applicant submitted that on the following day the head of the intensive care unit stated in a conversation with him that there was no need for A. to receive intensive treatment and that this option should only be discussed if her condition worsened.

According to the Government, no meeting was planned or held by the doctors on 8 December 2003 and, accordingly, the applicant could not be, and was not, invited.

(f) Emergency removal of A. from the applicant and his wife

On 11 December 2003 at around 5 p.m. the hospital’s head physician, together with S., an officer from the Custody and Guardianship Agency, and a police officer asked the applicant and his wife to place A. in the intensive care unit. When they refused, S. handed them an order by the Kirov municipal authority “For the removal of minor A.” (распоряжение об отобрании малолетней А). The applicant asked S. for an explanation and for an opportunity to examine the materials on which the removal decision had been based. S. refused to grant such access and again invited the parents to leave. It appears that the applicant and E. then left.

The applicant submitted that all of A.’s previously prescribed courses of treatment had been cancelled after her transfer to the intensive care unit. On several occasions the applicant allegedly asked the hospital authorities to transfer A. to the Russian Children’s Hospital in Moscow for examination and treatment and offered to bear the related expenses. Apparently the authorities turned down the offer, saying that there was no need for such treatment at that time.

The Government submitted that the materials on which the authorities had based their decision had been deposited at the Pervomayskiy District Court of Kirov. According to the Government, the applicant and his spouse were aware of the reasons for the decision as the hospital had repeatedly raised the question previously. They further submitted that, following the transfer of A. to the intensive care unit, her condition vastly improved.

3. Court proceedings concerning the emergency removal order

(a) First-instance proceedings

In December 2003 the applicant brought a court action challenging the order to remove A.

In a judgment of 24 February 2004 the Pervomayskiy District Court of Kirov dismissed his action and upheld the impugned decision.

The court established that on 28 November 2003 the head of the education department of the Kirov municipal authority (начальник управления образования администрации г. Кирова) had received a report signed by the head physician of the Kirov Regional Children’s Hospital. The report contained information on the girl’s poor health and the parents’ consistent refusal to allow A. to receive the necessary treatment and, in particular, to place her in the intensive care unit.

The court further found that A.’s medical records confirmed the head physician’s submissions, namely, that E. had refused to allow treatment and had objected to A.’s placement in the intensive care unit, and had also refused to allow the medical staff access to the ward.

The court referred to a document dated 12 November 2003 which indicated that the parents had been opposed to A.’s placement in the intensive care unit, and which they had refused to sign. It also alluded to an additional report by the head physician, dated 10 December 2003, which stated that the doctors’ meeting had confirmed that it had been necessary to subject A. to intensive care. The report contained information to the effect that E. had again refused to comply with the doctors’ recommendations.

Taking into account the above facts, and on the basis of Article 77 of the Family Code, the Kirov municipal authority had issued the impugned decision and the girl was placed in the intensive care unit. Following her transfer to that unit, A.’s condition had improved, as confirmed by a medical report dated 22 January 2004 and the conclusions of a doctors’ meeting of 19 February 2004.

On the basis of the above elements, the court upheld the order, finding that it neither contravened the existing legislation nor violated any of the applicant’s rights.

(b) Appeal proceedings

The applicant appealed against the judgment of 24 February 2004. The appeal was examined and dismissed by the Kirov Regional Court on 1 April 2004.

4. Court proceedings for revocation of the adoption order

(a) Application by prosecutor for revocation of the adoption order and for related interim measure

On 17 December 2003 the Prosecutor of the Pervomayskiy District Court of Kirov applied to a court for revocation of A.’s adoption.

On 9 February 2004 the Pervomayskiy District Court granted the prosecutor’s application for interim measures. In particular, it ordered that A. was to stay in hospital for further treatment and be placed in the provisional custody of the local Custody and Guardianship Agency during the proceedings.

On an unspecified date the appeal court quashed the decision of 9 February 2004 regarding the part concerning A.’s stay in hospital and upheld the part concerning provisional custody.

(b) Medical examination ordered by the court

In March 2004 the applicant applied to the court, requesting it to order a medical report on the adequacy of the treatment provided to A. by the Kirov Regional Hospital.

By a decision of 22 April 2004 the court granted his application and ordered the Russian Children’s Hospital in Moscow to conduct an examination into the accuracy of the child’s diagnosis and the adequacy of the medical treatment received at the Kirov Regional Hospital. The experts were also required to consider whether at the time of A.’s removal there had been a threat to A.’s life or health and whether there had been a need for her to be placed in the intensive care unit.

The applicant alleged that his request to attend the examination was refused. It also appears that some of his questions were excluded from the court decision ordering the examination.

The Government submitted that the applicant had not made any request to attend the examination and that in any event the applicant never contested the decision of 22 April 2004 on appeal.

They further submitted that the examination had been carried out on 10 June 2004. The experts concluded that A.’s diagnosis had been accurate and that the treatment and medicine had fully corresponded to the diagnosis. Furthermore, they concluded that the transfer had been fully justified and corresponded to the interests of the child.

(c) First-instance proceedings

By a judgment of 18 November 2004 the Pervomayskiy District Court revoked A.’s adoption and transferred custody rights to the local Custody and Guardianship Agency. It reasoned as follows:

“... On 6 May 2000 the Leninskiy District Court granted the applicants’ request to adopt A. ... and ordered immediate execution of the decision. At that time the applicants already had two adoptive daughters: K., born on 28 May 1995, and P., born on 7 October 1999, who died following her adoption because of a disease similar to that suffered by A. Furthermore, after A.’s adoption the applicants adopted another girl, S., in respect of whom the Prosecutor’s Office also brought an action for revocation of the adoption order because the parents refused to allow her to receive necessary medical treatment. In addition to the adopted girls, the applicants have two biological sons: I., born on 22 July 1986, and K., born on 8 April 1985. Both have been convicted by the Leninskiy District Court and sentenced to 6 years’ and 7 years’ imprisonment respectively...

The family’s living and financial conditions are satisfactory...

...The court has established that the parents initially contacted the Kirov Regional Children’s Hospital on 2 October 2003 with complaints about A.’s deteriorating eye-sight. On 9 October 2003 a medical board sent the parents and the girl to the Russian Children’s Hospital in Moscow where, after examination, the parents were invited to hospitalise A. They declined to do so. On 22 October 2003 the parents were advised to place the child in the Kirov Regional Children’s Hospital as a matter of urgency, which they did not agree to do until 23 October 2003.

The girl’s condition deteriorated: convulsions, vomiting and a high temperature became more and more frequent; several life-threatening attacks of the disease occurred.

On the basis of the available witness testimonies by the medical staff, the court has established that E. prevented the medical staff from examining A. In particular, she prevented them from taking A.’s temperature, using a drip and catheters or giving her medicines. Despite the fact that the illness was atypical, the parents categorically refused to allow A. to be placed in the special care unit. Taking into account the special circumstances, namely the deaths of two previously adopted girls, this may amount to a deliberate failure to provide assistance to a child in a life-threatening situation.

[In these circumstances,] the hospital authorities were forced to apply to the head of the Kirov municipal education department for the child’s emergency removal. A. was removed from her parents on 11 December 2003.

By a judgment of 24 January 2004, which was upheld on appeal, the Pervomayskiy District Court confirmed the emergency removal order and noted that the removal had taken place in a situation in which the child’s life was endangered...

Under Article 77 of the Family Code, in the event of an imminent threat to a child’s life or health, a custody and guardianship agency [(“the Agency”)] may immediately remove him or her from the parents or other persons having custody.

The Agency carries out the emergency removal on the basis of an order from the local authority.

The Agency has an obligation to inform a prosecutor immediately [of the measures taken], to provide for the child’s provisional placement elsewhere and to lodge a court action for withdrawal or restriction of parental rights within the following seven days.

In accordance with the requirements of the law and having identified no grounds for restriction of parental rights [in the present case] under Article 73 of the Family Code, the prosecutor...brought court proceedings for revocation of the adoption order.

...According to a medical certificate issued by a psychotherapist and dated 10 November 2003, E. showed symptoms of schizoid personality disorder. In this connection and with E.’s consent, the court ordered that she undergo a forensic psychiatric examination, at which she failed to appear...

... Under Article 141 of the Family Code, the adoption of a child may be revoked for failure by the adoptive parents to fulfil their parental obligations, for abuse of parental rights, abusive treatment of the adopted child or if the parents suffer from chronic drug or alcohol addiction...

... The Family Code does not provide a definition of the term “abuse of parental rights”. This is to be found in the Ruling of the Plenary Supreme Court of 27 May 1998 N 10 “Application of the legislation by the courts in disputes concerning the upbringing of children”. The ruling defines the term as “making use of these [parental] rights to the detriment of the children’s interests, in particular, creating obstacles to their education; inducement to beggary; theft; prostitution; abuse of alcohol or drugs etc.” The list of possible adverse consequences of abuse of parental rights is not exhaustive, since these consequences may vary. However, as can be seen from the definition, abuse of parental rights constitutes a use of ... [those] ... rights ... that will entail harm to children. In other words, this is a use of parental rights contrary to their purpose, defined in Article 63 of the Family Code as the parents’ obligation to raise their children, to take care of their health, physical, psychical, mental and moral development and to provide for their basic educational needs.

In reaching its decision the court has recognised that by obstructing the child’s medical treatment the defendants created a situation in which her life and health were endangered. After her removal the child’s medical condition improved, resulting in her recovery. According to the medical examination carried out by the Russian Children’s Hospital, the treatment provided by the Kirov Regional Children’s Hospital fully corresponded to the child’s diagnosis and medical condition.

In accordance with the requirements of the law, in reaching its decision the court was guided by the best interests of the child, particularly her right to life, and took into account the specific circumstances of the case. The evidence at the court’s disposal, in particular the psychological examination of the child, reveals that her removal did not entail any negative consequences for her health and emotional development. On the contrary, there is evidence that she does not want to return home.

The court revokes the adoption order in respect of both defendants since they acted in concert, a fact which they did not dispute.”

The applicant appealed against the judgment. In the appeal submissions he alleged that the trial court had erred in establishing the relevant facts and that, contrary to the court’s findings, the parents had not been negligent. He also complained about the removal order, the authorities’ failure to involve him in the decision-making process and to grant him access to A., and the poor wording of Article 77 of the Family Code. The applicant also relied on Article 8 of the Convention and the Court’s case-law in support of his complaints.

(d) Appeal proceedings

By a decision of 28 December 2004 the Kirov Regional Court partly set aside and partly varied the trial court judgment. In particular, the court restricted the applicants’ parental rights and transferred custody of A. to the local Custody and Guardianship Agency.

The court held, in particular:

“... In its judgment the trial court stressed that the defendants had created a life-threatening situation by obstructing medical treatment of the child.

As is clear from the materials of the case..., A. has not had contact with her adoptive parents since being removed on 11 December 2003. A year has passed since that date and obstruction of the child’s medical treatment by the parents is no longer a relevant factor for consideration.

Furthermore, according to the trial court judgment – which referred to the explanations given by the hospitals’ head physician – treatment of the minor has now been terminated.

The court has been unable to establish that there is evidence of deliberate conduct by the adoptive parents either before 23 October 2003 or after 11 December 2003 which would be contrary to the child’s interests.

Taking this into account, the court finds that the revocation of the adoption order is premature, since it lacks sufficient justification.

Under paragraph 12 of the Ruling of the Supreme Court of 27 May 1998 N 10 “Application of the legislation by the courts in disputes concerning the upbringing of children” ... in circumstances where, on examining a case, the court is unable to establish sufficient grounds for revocation of the adoption order but considers that it is dangerous for the child to remain with his or her parents, it may order that the child be removed from the parents and that custody be transferred to a local custody and guardianship agency.

In accordance with Article 141 of the Family Code, an adoption order may be revoked for failure by the adoptive parents to fulfil their parental obligations, for abuse of parental rights, abusive treatment of the adopted child or if the parents suffer from chronic drug or alcohol addiction.

In the present case no sufficient grounds for revocation of the adoption order can be established, but there are grounds for restricting [the applicants’] parental rights.”

The applicant, the Kirov administration’s education department and the Kirov Prosecutor’s Office applied for supervisory review of the appeal decision.

(e) Supervisory review proceedings

On 1 March 2005 a judge of the Kirov Regional Court, acting by way of supervisory review, ordered that the case be examined on the merits by the Presidium of the Kirov Regional Court.

By a decision (постановление) of 16 March 2005 the Presidium of the Kirov Regional Court upheld the appeal judgment of 28 December 2004.

5. Access to A. by the applicant and E. after her removal and the related court proceedings

(a) Access to A. after her removal and institution of the related court proceedings

On 9 February 2004 the Pervomayskiy District Court granted the Prosecutor’s application for interim measures. In particular, it ordered that A. be placed in the provisional custody of the local Custody and Guardianship Agency during the proceedings.

It appears that after A.’s removal and throughout 2004 the applicant and his wife attempted to visit A. on many occasions in order to hand over food and toys, but the hospital authorities and the Kirov local authority refused such contact.

In June 2004 the parents unsuccessfully lodged applications for a court injunction against the hospital and the local administration preventing the defendants from interfering with their right to communicate with the child and participate in her upbringing.

By decisions of 16 June 2004, 13 July 2004 and 15 September 2004 the Leninskiy District Court dismissed their applications on grounds of various procedural irregularities, specifically failure to clarify the allegations and to provide supporting documents and information.

It appears that the applicant rectified the irregularities and the proceedings were finally instituted on an unspecified date.

On 22 September 2004 the Pervomayskiy District Court granted an application by the Kirov authority’s education department to adjourn the proceedings in the access case pending resolution of the adoption issue. There is no evidence that the parents appealed against that decision.

(b) First-instance proceedings

The parents applied for an injunction against the administration and the hospital preventing the defendants from interfering with their right to communicate with the child.

On 23 November 2004 the Pervomayskiy District Court of the Kirov Region granted the application. The court’s reasoning was as follows:

“... Under Article 63 of the Family Code of the Russian Federation, parents have a right and an obligation to raise their children.

Under Article 66(1) of the Family Code, a parent living separately from a child has the right to communicate with him or her and to participate in his or her upbringing and in meeting her or his educational needs. A parent living with a child cannot obstruct the child’s communication with the other parent so long as such communication does not harm [the child’s] physical, psychological and moral health.

The court has established that on 11 December 2003 A. was removed from her parents because of an imminent danger to her life and health and was placed in the custody of the Kirov Custody and Guardianship Agency.

At present the applicants are denied any access to their daughter, participation in her upbringing or information about her...

... The court takes cognisance of the fact that on 18 November 2004 the Pervomayskiy District Court revoked A.’s adoption. However, the decision has not yet acquired final force. Consequently, the issue of termination of the applicants’ parental rights has not been resolved as the negligence on the part of applicants has not been established...

... In the present case the court is unable to find that the applicants deliberately harmed the girl’s physical or psychological health (Article 65 of the Family Code).

The court finds it established that throughout A.’s entire stay at the hospital the applicants visited her several times a week, despite the fact that they were not allowed to see her and that they were not provided with any information about her. They brought her food, clothes, toys and other things. Taking account of the fact that the applicants still enjoy parental rights until otherwise determined by a final court decision, the court considers the defendants’ refusal to grant [the applicants’] access to A. and participation in her upbringing to be unacceptable. Taking into consideration the child’s interests, the court finds it necessary to provide the applicants with a genuine possibility of enjoying their right to participate in her upbringing and to communicate with her.”

The court ordered the defendants not to interfere with the parents’ right to communicate with A. and participate in her upbringing.

(c) Appeal proceedings

The administration and the hospital appealed. On 25 January 2005 the Kirov Regional Court dismissed their appeal and upheld the judgment of 23 November 2004 in full.

(d) Subsequent events and enforcement proceedings

On 26 January 2005 the deputy head of the Kirov municipal authority provided the applicant with a schedule of meetings with A. According to the schedule, the parents were allowed to visit A. for one hour every two weeks. The applicant was also told that A. had been removed from the hospital and placed in a children’s foster home.

On 28 January 2005 the applicant went to the foster home. The head of the home did not allow him either to see A. or to speak to her by telephone.

The applicant submitted that she had also told him that he had been excluded from the girl’s upbringing.

According to the Government, on 28 January 2005 the applicant and his counsel visited the foster home and talked to the head of the home. The conversation was taped.

On 2 February 2005 the bailiff responsible for execution of the judgment instituted enforcement proceedings.

According to the report on the enforcement proceedings (акт проверки исполнения исполнительного документа) dated 4 February 2005, the foster home’s management refused the applicant access to A. on the ground that an influenza quarantine had been introduced on 2 February 2005. It appears that the applicant could speak to A. on the telephone. The report also indicates that the head of the foster home flatly refused to allow the possibility of the applicant’s participation in A.’s upbringing.

According to the Government, on 4 February 2005 the applicant, his counsel and two bailiffs visited the home and talked to the head. The whole visit was taped. The applicant was allowed to take a photo of A. through the glass window.

On 14 February 2005 the bailiff issued a request (требование) calling on the Kirov municipal authority to annul the schedule of meetings between the applicant and A. In particular, she pointed out that meetings of one hour every other week were clearly inadequate for proper execution of the judgment.

(e) Bailiff’s application for interpretation of the judgment of 23 November 2004

It appears that on the same day the bailiff asked the Pervomayskiy District Court to give an interpretation of its judgment of 23 November 2004.

On 17 February 2005 the applicant’s lawyer called the foster home in order to arrange a meeting between the applicant and A. on 18 February. In the ensuing conversation the head of the foster home told him that it was impossible to arrange such a meeting because the applicant had already visited the foster home four times that month, instead of twice as provided for in the access schedule.

According to the Government, on 18 February 2005 the applicant and his counsel again visited the home. The applicant was able to greet his daughter through the glass window and take a photo of her.

(f) Intervention by a prosecutor

By way of a special warning dated 18 February 2005 the Prosecutor of the Pervomayskiy District cautioned the bailiff that her request of 14 February 2005 came close to breaking the law. In particular, the prosecutor referred to the fact that the Kirov Regional Court had restricted the parents’ parental rights in its decision of 28 December 2004. Relying on Articles 74 and 75 of the Family Code, he further stressed that contacts between parents whose parental rights had been restricted and their children could only be allowed with the consent of the custodian and insofar as they did not harm the child. The schedule of meetings was in accordance with the foster home’s internal rules regulating parental access to children. Finally, it was not for the bailiff to request annulment of such a schedule and to decide on the adequacy of such meetings.

On 25 February 2005 the applicant again visited the foster home and was able to greet A. through the glass window.

On 28 February 2005 the Pervomayskiy District Court dismissed the bailiff’s application for interpretation of the judgment of 23 November 2004. On the same day the bailiff lodged a complaint with the court against the prosecutor’s warning, alleging that it had been arbitrary and unlawful. In particular, she pointed out that the schedule of meetings between A. and her parents did not correspond to the foster home’s internal rules in this respect. Apparently the access to A. granted to the applicant and his spouse was more restrictive than that granted to other parents. The outcome of this complaint is unclear.

The applicant and E. also lodged an appeal against the prosecutor’s warning. By a decision of 10 March 2005 the Pervomayskiy District Court dismissed the complaint, stating that the warning was not subject to judicial review. The parents appealed against that decision but the outcome of these proceedings is unclear.

On 2 March 2005 the applicant and his counsel visited the foster home and talked to the staff about A.’s medical condition.

On 4 March 2005 the applicant and his counsel again visited the foster home. The applicant was able to greet A. through the glass window.

On 11 and 18 March 2005 the applicant paid a visit to the foster home and was able to greet his daughter through the window.

By decision of 24 March 2005 the influenza quarantine in the foster home was lifted.

It appears that on 25 March 2005 the applicant was allowed to see A. in the foster home for 20 minutes.

6. Proceedings for lifting on restrictions of the parental rights of the applicant and his spouse and return of A. to the parents

By a judgment of 13 October 2005 the Pervomayskiy District Court granted the application for lifting of the restrictions on the parental rights lodged by the applicant and his spouse. It also decided to return A. to her parents. The court noted that the restrictions in question were not necessary any more.

The judgment came into force on 31 October 2005.

On 2 November 2005 A. was returned to the applicant and his spouse.

B. Relevant domestic law

Article 56 of the Family Code: The Child’s Right to Protection

1. The child shall have the right to the protection of his rights and legal interests.

The child’s rights and legal interests shall be protected by his parents (or the substitute parents), and, in the cases stipulated in the present Code, by the Custody and Guardianship Agency, the Prosecutor and the court.

...

2. The child shall have the right to protection from abuse on the part of the parents (or substitute parents).

If the child’s rights and legal interests are violated, including where the parents (or one of them) fail to discharge or improperly discharge their duties related to the child’s upbringing and education, of where they abuse their parental rights, the child shall have the right to apply on his own initiative for the protection of the Custody and Guardianship Agency, and - upon reaching the age of 14 years - to the court.

3. Officers of organisations or other citizens who have learnt of a threat to the life or health of the child or a violation of his rights and legal interests, shall be obliged to report this to the Custody and Guardianship Agency for the place of the child’s actual residence. Upon receipt of such information, the Custody and Guardianship Agency shall be obliged to take the necessary measures to protect the child’s rights and legal interests.

Article 74: Consequences of the Restriction on Parental Rights

1. Parents whose parental rights are restricted by the court shall lose the right to bring the child up in person, and also the right to the privileges and state allowances granted to citizens with children.

2. The restriction on parental rights shall not relieve the parents from the duty to maintain the child.

3. A child whose parents’ (one of them) parental rights are restricted, shall retain the right of ownership of the living premises or the right to use the living premises, and shall also retain property rights, based on his kinship with his parents and with his other relatives, including the right to receive an inheritance.

4. If the parental rights of both parents are restricted, the child shall be put into the charge of the Custody and Guardianship Agency.

Article 75: The Child’s Contacts with Parents whose Parental Rights are
Restricted by the Court

Parents whose parental rights are restricted by the court may be allowed to maintain contacts with the child, unless this has a negative impact on the latter. The parents’ contacts with the child shall be permitted with the consent of the Custody and Guardianship Agency, or with the consent of the child’s guardian (trustee), of his foster parents or of the authorities of the institution where he resides.

Article 76: Lifting the Restriction on the Parental Rights

1. If the grounds on which the parents (or one of them) were (was) restricted in their parental rights do not exist any more, the court may, upon an application by the parents (or one of them) make a decision returning the child to the parents (or one of them) and lifting the restrictions stipulated by Article 74 of the present Code.

2. The court shall have the right, taking into account the child’s interests, to refuse to grant the application, if the child’s return to the parents (or one of them) is contrary to his interests.

Article 77: Removal of the Child in Cases of a Direct Threat to his Life or Health

1. If a direct threat exists to the child’s life or health, the guardianship and trusteeship body shall have the right to remove the child from his parents (or from one of them) or from another person in whose charge he is.

The immediate removal of the child shall be carried out by the Custody and Guardianship Agency pursuant to the corresponding order of the local self-governing body.

2. When removing the child, the Custody and Guardianship Agency must inform the Prosecutor without delay, provide for the child’s temporary accommodation and, within 7 days after the local self-governing body has made a decision to remove the child, lodge an application with the court for withdrawal or restriction of parental rights.

COMPLAINTS

1. The applicant complained under Article 8 that the removal of his daughter had not been “in accordance with the law” in that Article 77 of the Family Code, which regulated the emergency removal of a child, was unclear and unforeseeable and conferred too wide a discretion on the authorities without requiring them to prove actual danger to the child’s health and/or life. Furthermore, the said Article contained insufficient guarantees against use of executive discretion because the decision to remove was not taken by a court and was not subject to judicial review.

2. The applicant complained under the same Convention provision that the decision to remove his daughter had been unfounded and that he had been insufficiently involved in the decision-making process.

3. He further claimed that the child’s removal had not pursued any legitimate aim, since the real purpose had been to hide medical malpractice in respect of his daughter.

4. The applicant complained that the authorities had prohibited his access to the child following her removal, during her stay in hospital and while she was in foster care.

5. Finally, he complained under Article 6 of the excessive length of the proceedings. Under the same Convention provision, he alleged that the medical examination ordered by the court in connection with the proceedings for revocation of the adoption order had not been carried out in Moscow, as he had wished; that his request to attend the examination had been refused; and that some of the questions proposed by him had been excluded.

THE LAW

1. Under Article 8 of the Convention the applicant was dissatisfied with the removal of his daughter, which had taken place on 11 December 2003, arguing that it had been in breach of the domestic law and that Article 77 of the Family Code was unclear, unforeseeable and conferred too wide a discretion on the authorities. He also argued that the said provision contained insufficient guarantees against abuse of power. Furthermore, the applicant complained that the decision to remove his daughter had been wrong in the circumstances of the case and that he had not been sufficiently involved in the decision-making process. Finally, he claimed that the removal had not pursued any legitimate aim. Article 8 of the Convention, in so far as relevant, provides:

“1. Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. The parties’ submissions

The Government submitted that the removal of A. had been in full compliance with the domestic law, that Article 77 of the Code met all the Convention requirements as to the quality of the law, that the decision itself had been justified by the need to protect A.’s health, supported by various medical opinions and strictly proportionate to the aims sought. They also submitted that during the relevant period the applicant and his spouse had been constantly informed about A.’s medical condition and that in the circumstances of the case the decision urgently to remove A. could not be seen as fully unexpected. Overall, the Government argued that the applicant’s complaints were groundless.

The applicant maintained his initial complaints.

B. The Court’s assessment

At the outset the Court notes that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life (see, for example, W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, § 59). It follows, and this was not contested by the Government, that the order of the Kirov municipal authority to remove minor A. from her parents amounted to an interference with the applicant’s right to respect for his family life.

The Court further notes that an interference with the right to respect for family life may raise an issue under Article 8 unless it was “in accordance with the law”, had an aim or aims that is or are legitimate under Article 8 § 2 and was “necessary in a democratic society” for the aforesaid aim or aims (see, among many authorities, Gillow v. the United Kingdom, judgment of 24 November 1986, Series A no. 109, p. 20, § 48). The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, for example, Leander v. Sweden, judgment of 26 March 1987, Series A no. 116, p. 25, § 58).

As to whether the interference in question was “in accordance with the law”, the Court notes that the domestic courts, ruling at two levels of jurisdiction, examined and rejected the applicant’s action challenging the order to remove A. The domestic courts found that the order did not contravene the existing legislation and the Court finds nothing in the applicant’s submissions to prove the contrary. In so far as the applicant complained about the allegedly insufficient “quality of the law”, the Court points out that it is hardly feasible for the legislator to cover all possible situations in child care cases and that confining the authorities’ entitlement to act to situations where harm to the child has already occurred would reduce the effectiveness of the respective provisions. Accordingly, the conferral of discretion on the authorities is not in itself inconsistent with the foreseeability principle and the existence of judicial review of the decisions in this field constitutes sufficient protection against arbitrary interferences with the rights of the persons involved (see Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, §§ 61-62, and also, mutatis mutandis, Eriksson v. Sweden, judgment of 22 June 1989, Series A no. 156, §§ 59-61). On the facts, the Court observes that the scope of discretion provided for in Article 77 is not in itself incompatible with Article 8 of the Convention and nothing in the case file or in the applicant’s submissions suggests that this domestic provision, as it was applied in the present case, failed to meet the above-mentioned case-law requirements. Overall, the Court is satisfied that the interference in question complied with the requirement of lawfulness of Article 8 § 2 of the Convention.

As to whether the interference pursued a legitimate aim, the Court notes that the applicant claims that the doctors misdiagnosed his adopted daughter’s disease and that her removal was intended to hide this medical error. The Court finds nothing in the case file or in the parties’ submissions to support this allegation. Quite on the contrary, by a decision of 22 April 2004 the District Court ordered the Russian Children’s Hospital in Moscow to conduct an examination into the accuracy of the child’s diagnosis and the adequacy of the medical treatment received at the Kirov Regional Hospital. The experts were also required to consider whether at the time of A.’s removal there had been a threat to A.’s life or health and whether there had been a need for her to be placed in the intensive care unit. The examination was carried out on 10 June 2004 and the medical experts concluded that A.’s diagnosis had been accurate and that the treatment and medicine had fully corresponded to the diagnosis. Furthermore, they also concluded that the transfer had been fully justified and corresponded to the interests of the child. In these circumstances, the Court concludes that the case at issue is a manifest example of the authorities intervening to protect the child’s life and health. Accordingly, the interference pursued the legitimate aim.

Finally, as regards the question whether the measure was “necessary in a democratic society”, the Court notes that, as a rule, the authorities enjoy a wide margin of appreciation in assessing the necessity of taking a child into care, especially if an emergency care order is in issue (see K. and T. v. Finland [GC], no. 25702/94, § 155, ECHR 2001‑VII) as opposed to further limitations, such as access, which require a stricter scrutiny (see, for example, Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299‑A, § 64, and K. and T. v. Finland, ibid.). On the facts, the domestic courts, ruling at two levels of jurisdiction, reviewed the impugned emergency removal order and established that it had been issued in a situation where there was a genuine threat to the child’s health and life on the one hand and a consistent lack of cooperation from the parents on the other. The courts gave due consideration to all the relevant circumstances of the case and carefully assessed the impugned order. Taking into account the above, the Court sees no reason to depart from the findings of the domestic courts. In addition, the Court observes that on the basis of the case file it appears that the hospital authorities informed the parents on numerous occasions about the child’s need for intensive care and warned them expressly that they would contact the local guardianship institution if they persisted in refusing such treatment. It cannot therefore be said that the authorities failed in their positive obligation to involve the parents in the decision-making process (see, by contrast, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 73, ECHR 2001-V). In view of the above considerations, the Court reaches the overall conclusion that the removal order satisfied the requirement of Article 8 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained about the authorities’ denial of access to the child following her removal, during her stay in hospital and while she was in foster care. He relied on Article 8 of the Convention in this connection.

The Government submitted that the restrictions in question were aimed at protecting the child’s health, that A. had not expressed a wish to see her parents and that in February and March 2005 access had been restricted on account of the influenza quarantine.

The applicant maintained his initial complaints. He submitted that for two years he was denied access to A. for no good reason.

In the light of the parties’ submissions, the Court finds that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. Under Article 6 of the Convention the applicant was also dissatisfied with the allegedly excessive length of the proceedings. He complained furthermore that the medical examination ordered by the court in connection with the proceedings for revocation of the adoption order had not been carried out in Moscow; that his request to attend the examination had been refused; and that some of the questions proposed by him had been excluded. Article 6 of the Convention, in its relevant parts, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

As far as the length-of-proceedings complaint is concerned, the proceedings in the applicant’s case lasted for four months (judicial review of emergency removal), one year and three months (revocation of the adoption order) and eight months (access to A.) respectively. In view of the above and having regard to the materials in its possession, the Court considers that no length issue arises either under Article 6 or 8 of the Convention (see W. v. the United Kingdom, cited above, § 65). As regards the remainder of the applicant’s submissions, the Court finds that they do not disclose any appearance of a violation of Article 6 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the alleged lack of access to the child following her removal from her parents;

Declares inadmissible the remainder of the application.

Søren NielsenChristos Rozakis
RegistrarPresident

 

Full & Egal Universal Law Academy