THIRD SECTION
DECISION
Application no. 51966/20
Andrey Aleksandrovich LUKYANENKO against Russia
and 2 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 24 April 2025 as a Committee composed of:
Diana Kovatcheva, President,
Úna Ní Raifeartaigh,
Mateja Đurović, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The list of applicants and the summary of the factual circumstances in their individual cases are set out in the appended table.
2. The applicants’ complaints under Article 8 of the Convention concerning the interference with their right to respect for their family life stemming from child residence disputes and under Article 14, in conjunction with Article 8, related to their alleged discrimination, were communicated to the Russian Government.
THE LAW
Joinder of the applications3. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
Complaints under Article 8 of the Convention (interference with the right to respect for family life stemming from child residence disputes)4. The applications concern disputes between the divorced applicants and their ex-wives regarding their common children’s place of residence. In each of these cases the domestic courts found in favour of the children’s mothers.
5. The Court notes that the relevant domestic law does not provide for the possibility of a shared residence order, therefore the domestic courts had no other choice but to make a residence order in favour of one of the two separated parents. The decisions to grant the residence order to the children’s mothers were based on the best interests of the children after careful examination of the entire family situation. There is nothing to indicate that the findings reached by the domestic courts, which had the benefit of direct contact with all the persons concerned, were unreasonable and thus fell outside their wide margin of appreciation. The decisions at issue were reached following adversarial proceedings in which the applicants were placed in a position enabling them to put forward all arguments in support of their applications for a residence order in their favour and they also had access to all relevant information that was relied on by the courts (compare to Malinin v. Russia, no. 70135/14, §§ 55-78, 12 December 2017, and Leonov v. Russia, no. 77180/11, §§ 51-77, 10 April 2018).
6. In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Complaints under Article 14 of the Convention in conjunction with Article 87. The applicants further raised complaints under Article 14 of the Convention, in conjunction with Article 8, on account of their alleged discrimination in the above disputes on grounds of gender in that the residence orders in respect of the children were made in favour of the children’s mothers.
8. The Court observes that Russian law does not make any distinction between the sexes, both men and women being equally eligible to obtain a residence order in respect of their child, irrespective of the child’s age. The domestic courts must evaluate all the relevant circumstances and the parties’ parenting abilities in order to find the most appropriate solution in the child’s best interests.
9. The residence orders in the applicants’ cases were based on an assessment of the best interests of the children in the particular circumstances of the cases, rather than on a general assumption in favour of mothers (see Leonov, cited above, §§ 78-90). The reference of the domestic courts, among other considerations, on Principle 6 of the United Nations 1959 Declaration of the Rights of the Child, which provides that a child of tender years should not, save in exceptional circumstances, be separated from his or her mother, cannot as such be regarded as discriminatory.
10. These complaints and therefore manifestly ill-founded, and this part of the applications must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 15 May 2025.
Viktoriya Maradudina Diana Kovatcheva
Acting Deputy Registrar President
APPENDIX
List of applications raising complaints under Article 8 of the Convention
(interference with the right to respect for family life stemming from disputes related to child care)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Subject matter of the case
Summary of the factual circumstances
Final domestic decision
Court name
Date
51966/20
08/11/2020
Andrey Aleksandrovich LUKYANENKO
1980
Determination of child residence/contact rights
The applicant is the father of a child born in 2016. In December 2018 the applicant and the child’s mother divorced. Since November 2018 the child has been living with the applicant and occasionally - with his mother. In March 2019 the applicant instituted proceedings seeking to have the child’s residence determined as being with him. The child’s mother counterclaimed. On 08/04/2019 the Tsentralnyy District Court of Khabarovsk determined that pending the proceedings the child should reside with his mother. On 26/06/2019 the Khabarovsk Regional Court quashed the above interim decision and held that pending the proceedings the child should remain living with the applicant. On 21/10/2019 the District Court granted the residence order in respect of the child to the applicant. The court established that both parents had favourable living conditions, both were employed and had sufficient income. None of the parents had the record of improper parenting. The forensic psychological examination of the parties showed that they were both equally apt for child rearing and had strong emotional bonds with the child. The court considered, however, that the child has adapted to living with the applicant and that the change of his residence could thus be traumatic to him. However, on 27/05/2020 the Regional Court quashed that judgment on appeal and granted the residence order to the child’s mother. The Regional Court held that the child’s residing with his father pending the proceedings could not be used as a ground for granting him definite residence order in respect of the child. It took into account the child’s young age (relying on one of the principles listed in paragraph 6 of the 1959 Declaration of the Rights of the Child, in accordance with which “a child of tender years shall not, save in exceptional circumstances, be separated from his mother”), the fact that after the parties’ separation there has been no mutual agreement as to whom the child should reside with, that since March 2019 the applicant has been isolating the mother from the child’s life, which was not in his best interests, and that there has been no evidence to the effect that the child’s life with his mother and her new partner would be detrimental to the child. The applicant pursued cassation appeals, to no avail.
Supreme Court of Russia, 21/10/2020
259/21
24/11/2020
Yegor Sergeyevich SKVORTSOV
1983
Terekhov Konstantin Ilyich
Moscow
Determination of child residence/contact rights
The applicant is the father of a child born in 2011. In 2016 the applicant and the child’s mother divorced, and the child continued living with his mother. In September 2018 the applicant and the child’s mother decided that the child will temporarily live with the applicant so as to allow the child’s mother time to find a new apartment for rent. However, when the child’s mother rented the apartment in December 2018, the applicant refused to return the child. In 2019 the child’s mother requested a court to determine the child’s residence as being with her. The applicant lodged a counterclaim. On 24/09/2019 the Slavgorod Town Court of the Altay Region granted the mother’s claim and dismissed the applicant’s counterclaim. It established that both parents had favourable living conditions, both were employed, had sufficient income and positive references. None of the parents had the record of improper parenting. The forensic psychological examination showing that both parents were equally capable of the child’s upbringing and that the child had equally positive emotions towards both parents was rejected as inadmissible evidence (on procedural grounds). The opinion of the childcare authority to the effect that the child should reside with the applicant was criticised by the District Court as lacking full and comprehensive analysis of all the circumstances of the case, including the initial agreement between the parties as to the child’s residence with his mother and subsequent unilateral change of this agreement by the applicant without the mother’s consent. The court finally relied on one of the principles listed in paragraph 6 of the 1959 Declaration of the Rights of the Child, in accordance with which “a child of tender years shall not, save in exceptional circumstances, be separated from his mother”. It further noted that upon mutual agreement between the parties or as the circumstances would change the parties could alter the child’s residence in the future. The decision of 24/09/2019 was upheld on all subsequent appeals.
Supreme Court of Russia, 08/09/2020
24092/21
16/04/2021
Maksim Viktorovich KURLIKOVSKIY
1985
Medvedevskikh Vyacheslav Vladimirovich
Yekaterinburg
Determination of child residence/contact rights
The applicant is the father of a child born in 2014. In 2016 the applicant and the child’s mother divorced, and the child continued living with the applicant. As the applicant and his former wife could not reach an agreement on the child’s residence, they appealed to courts. On 30/08/2018 the Chkalovskiy District Court of Yekaterinburg approved the settlement reached between the applicant and his former wife on the child’s residence with the applicant from Monday to Friday and with the child’s mother from Saturday to Sunday. In 2019 the child’s mother requested the court to determine the child’s residence as being with her. The applicant lodged a counterclaim. On 27/12/2019 the Kirovskiy District Court of Yekaterinburg granted the mother’s claim and dismissed the applicant’s counterclaim. It established that both parties had been failing to comply with the settlement: the mother picking up the child from the kindergarten on weekdays and the applicant refusing to hand the child over to the child’s mother on weekends. Hostile relations had developed between the child’s parents, resulting in conflicts (including in the child’s presence) and multiple complaints to the police, the prosecutor’s office and childcare authorities. The District Court further established that both parents had favourable living conditions, both were employed and had sufficient income. None of the parents had the record of improper parenting. The court relied, however, on the conclusions of a number of expert examinations of the child (three socio-psychological and pedagogical examinations of the child and a forensic psychological examination of the child and both parents) that all established that the child had developed the closest relationships with the mother, that being with the mother caused positive emotions in the child, whereas being with the father caused (for at least the last 6 months) negative emotions and rejection because the father, according to the child’s testimony, “fights” and “hits mom”. The court also established that the child had stopped attending the kindergarten out of the father’s fear that his former wife would abduct the child, which prevented the child from communicating with her peers and disrupted the strong emotional bond that she had with her mother. Having regard to the foregoing and having examined each parent’s personal qualities, the District Court arrived at the conclusion that it would be in the best interests of the child to reside with her mother. The court finally relied on one of the principles listed in paragraph 6 of the 1959 Declaration of the Rights of the Child, in accordance with which “a child of tender years shall not, save in exceptional circumstances, be separated from his mother”. The decision of 27/12/2019 was upheld on all subsequent appeals.
Supreme Court of Russia, 16/10/2020