Communicated on 23 February 2017
THIRD SECTION
Application no. 868/15
M.G. and others
against Russia
lodged on 24 December 2014
STATEMENT OF FACTS
The applicants are four family members who live in Moscow. They are represented before the Court by Ms T. Glushkova, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the case
The first applicant, a foreign national, has been living in Russia since 2002. In 2005 he married the second applicant, and in 2009 they had a son, the third applicant. The first two applicants’ attempts to conceive a second child proved unsuccessful and they put themselves forward as adoptive parents.
In September 2012 they found information about the fourth applicant, whose name was then C.S., in the online database of a Russian charitable foundation and decided to adopt him. The fourth applicant had been abandoned by his biological mother at a police station on an unspecified date. Her parental authority over the boy had been terminated by a Russian court on 19 December 2012, a decision that had become final on 29 January 2013.
Pending the end of the statutory six-month period during which the fourth applicant was ineligible for adoption (see “Relevant international and domestic law and practice”), the first two applicants decided to take him into their care as guardians. According to them, the Russian childcare authorities informed them that under the relevant legislation only Russian nationals were entitled to become guardians. On the basis of that information, the second applicant asked the local childcare authority to appoint her as the fourth applicant’s sole guardian. By a decision of 31 January 2013 the second applicant’s request was granted and she was appointed guardian of the fourth applicant. The child has now lived with the other three applicants since 1 February 2013.
The first two applicants went on to gather the necessary documents to adopt the fourth applicant. According to them, they found out that in practice the adoption procedure was much more complicated and lengthy for foreigners than for Russian nationals, in particular as regards the documents that had to be submitted. The first two applicants thus agreed that it would be in the fourth applicant’s best interests if the second applicant proceeded with the adoption alone, pending the first applicant’s obtaining the rest of the documents and compliance with the other formal requirements for adoption.
On 6 August 2013 the second applicant, with the first applicant’s consent, instituted proceedings in the Tushinskiy District Court of Moscow to adopt the fourth applicant.
On 27 August 2013 the court granted the second applicant’s application to adopt the fourth applicant. The child’s name and surname were changed from C.S. to their current ones and his place of birth was changed to Moscow.
On 19 October 2013 a local civil registration office issued a new birth certificate for the fourth applicant. The second applicant was given as the mother but a dash was left in the field for information about the father.
2. Reports on the inspection of the applicants’ living conditions
On 27 February, 26 April and 8 July 2013, and 3 March and 1 October 2014 respectively an official from the local childcare authority visited the applicants’ flat and inspected their living conditions.
The relevant reports, dated 4 March, 29 April and 10 July 2013, and 13 March and 6 October 2014 respectively, gave a very positive assessment of relations within the family between the first three applicants themselves and with the fourth applicant; their living conditions; progress in the fourth applicant’s adjustment to the family and in his physical and mental development. The reports also noted the fourth applicant’s affection for the other three applicants and the fact that both of the first two applicants took part in caring for him.
The two latest reports stated, in particular, that it was obvious that the first two applicants were sincerely attached to the fourth applicant and that he felt very comfortable in the family. He was also surrounded by love, tenderness and care and considered the first two applicants to be his parents, calling them “dad” and “mum”. During the inspections the boy had repeatedly demonstrated his strong attachment to the first two applicants, talked to them affectionately and hugged them.
The reports also stressed that the fourth applicant’s living conditions were safe as the first two applicants had experience in bringing up a child and were able to assess any risk of the child hurting himself.
3. Proceedings for the first applicant to adopt the fourth applicant
(a) Proceedings before the first-instance court
On 10 December 2013 the first applicant applied to the Moscow City Court to adopt the fourth applicant and to be named as his father in the birth certificate. The local childcare authority supported the application in a written submission of 12 February 2012, stating that relations between the first and fourth applicants were of a child-parent nature and that the adoption would be in the fourth applicant’s best interests.
By an interlocutory decision of 13 December 2013 the Moscow City Court stayed the proceedings and asked the first applicant to remedy a number of procedural shortcomings, in particular, by submitting certified copies of relevant documents. The court also referred to a certain “explanation” by the Presidium of the Supreme Court of Russia, dated 29 August 2013, on the application of legislation regarding children left without parental care, as amended on 2 July 2013. According to the Presidium, a court examining an application to adopt a Russian child by a national or permanent resident of a State where same-sex marriages were legally recognised should ascertain whether there was a bilateral agreement on adoption matters between Russia and that State which excluded the possibility of a child adopted in Russia being re-adopted unless a competent Russian State agency had consented to such a procedure. The Moscow City Court asked the fourth applicant to provide such information with respect to the State of which the first applicant was a national.
According to the applicants, they eventually complied with all the formal requirements set down by the court, except for the submission of a bilateral agreement on adoption as no such agreement existed between the State, of which the first applicant was a national, and Russia. The court then proceeded to examine the first applicant’s application on its merits.
The second applicant and representatives of the local childcare authority supported the first applicant’s application at a hearing. A public prosecutor also took part in the proceedings and requested that the court reject the adoption application. The prosecutor pointed out that the first applicant was a national of a State which legally recognised same-sex partnerships and that there was no evidence that the fourth applicant would not be transferred to the State, of which the first applicant was a national, and re-adopted there by a same-sex couple given the lack of a bilateral agreement on adoption between that State and Russia which excluded such a possibility.
(b) Judgment of 21 March 2014
On 21 March 2014 the Moscow City Court rejected the first applicant’s application in full.
The court observed, in general, that adoption was a measure aimed at creating the most favourable setting for the development and bringing up in a family of a minor left without parental care and that such a measure could only be taken in a child’s best interests. Those interests were understood to be a child’s right to live in material and emotional conditions which enhanced the child’s full and rounded development. The court also stressed that “family, maternity and childhood in their traditional meaning, as inherited from our forebears, [were] values which [guaranteed] an uninterrupted succession of generations, [were] a condition for the preservation and development of the multi-ethnic people of Russia, and therefore [needed] particular protection from the State”.
The court went on to note that, being vulnerable because of their age, children should enjoy increased protection against any criminal encroachments on their life, physical integrity and human dignity, and against harmful and adverse influences on their psychological integrity, mind and ethical standards, where such influences, even if not of a criminal nature, could significantly affect the development of a child’s personality. In order to protect a child eligible for adoption from such negative influences or criminal encroachments, Russian law had in the relevant field established certain limitations on adoption in respect of individuals whose conduct or ethical standards could pose a danger for a child’s health and for the development of his or her personality. In that regard, Article 127 of the Russian Family Code excluded certain categories of people from the list of those eligible to become adoptive parents. In particular, that Article banned adoption by individuals who had formed a same-sex union recognised as a marriage and registered under the law of a State where such unions were legally recognised, as well as by unmarried individuals who were nationals of that State. According to the court, the legislative ban on adoption by such individuals “[had been] made necessary by national traditions of viewing marriage as the biological union of a man and a woman, and [pursued] the aim of preventing the potential negative influence of such people on the physical and mental health of children eligible for adoption and on the development of their identity”.
The court further observed that the first applicant, “although being in traditional marital relations”, was a national of the State which legally recognised same-sex unions, that fact being commonly known and also confirmed by the relevant provisions of that State’s law, including the Registered Partnerships Act. The court further considered that situations where children were left without parental care could vary and included the death of their parents, the deprivation of parental authority (or the revocation of an adoption order), loss of legal capacity by parents, or illness, long-term absence, evasion of parental duties and such like. In the court’s view, it could therefore not be excluded that the child might be transferred to another family and even re-adopted by others.
The court stressed that in adoption matters the interests of children who were Russian nationals should be secured irrespective of whether a child was to be newly transferred to a family or had already been living in a family for some time. It noted that Article 21 of the UN Convention on the Rights of the Child imposed an obligation on States to ensure that a child involved in an inter-country adoption should enjoy safeguards and standards equivalent to those existing in the case of a national adoption. With reference to the absence of an agreement on adoption between Russia and the State, of which the first applicant was a national, which provided that the transfer of a child to another family, including his or her adoption by other people in that State, could not be undertaken without the consent of a competent Russian authority, the court concluded that adoption by the first applicant would not be in the fourth applicant’s interest.
The court added that the fourth applicant’s situation would not be worsened if the first applicant’s adoption application was rejected as the first and second applicant had initially decided, by mutual consent, that the child would only be adopted by the second applicant, a Russian national. The court stated that it had not established any circumstances, nor had any been presented by the first two applicants in court, which showed that they had objectively been prevented from applying to adopt the fourth applicant at the same time.
The court also noted that the provisions of the third part of Article 165 § 1 of the Russian Family Code, which state that adoption of a Russian child by foreigners married to Russian nationals should be performed in accordance with the same procedure as established for Russian nationals, were inapplicable in the present case owing to the existence of the above-mentioned circumstances which could lead to a breach of the child’s rights. By virtue of Article 165 § 2 of the Russian Family Code the adoption could not therefore be granted.
The Moscow City Court reiterated that adoption of the fourth applicant by the first applicant was not in the child’s best interests. It rejected the first applicant’s adoption application and his request to have his name put on the boy’s birth certificate as his father. The court added that the first applicant could again seek to adopt the fourth applicant once an adoption agreement between Russia and the State, of which he was a national, had been put in place and which provided that a child could not be transferred to another family, including via adoption by other people in that State, without the consent of a competent Russian authority.
(c) Appeal proceedings
The first applicant appealed to the Supreme Court of Russia against the judgment of 21 March 2014. He pointed out that he had satisfied all the conditions for adoption set forth in Russian law and that there was a parent-child relationship between him and the fourth applicant.
The first applicant disputed the first-instance court’s conclusion that refusing the adoption order would not worsen the fourth applicant’s situation. He pointed out that the absence of a formal legal link between him and the child would complicate their life on a daily basis as the first applicant was not entitled to represent the fourth applicant in any situation or even pick him up from kindergarten, after-school activities, or such like. Refusing the adoption order would also deprive the fourth applicant of any possibility to claim child maintenance, payments for the loss of a breadwinner or any inheritance rights if the first applicant died. Moreover, even though the first applicant was put down as the father of the third applicant in the child’s birth certificate, that information was missing from the fourth applicant’s birth certificate. Such a difference might provoke questions when the family had dealings with public agencies and institutions when those documents had to be shown, which could eventually lead to a breach of adoption secrecy.
The first applicant also argued that he should not be prevented from adopting the fourth applicant just because the child had first been adopted by the second applicant on her own. He further argued that the Moscow City Court’s conclusion that the fourth applicant might be re-adopted in the State, of which he was a national, was purely speculative and not based on any actual facts or circumstances of the case. He argued that the court’s interpretation of Article 127 § 1 (14) of the Family Code had been too broad. That provision in fact prohibited adoption by same-sex couples whose union had formally been registered and recognised as a marriage in a particular State, or unmarried nationals of such a State, whereas the applicant was married to the second applicant and had had a child with her.
Lastly, the first applicant referred to Article 8 of the Convention and maintained that he and the fourth applicant, in particular, had a de facto family life as they had been living together since 1 February 2013. The first applicant pointed out that he was actively involved in the fourth applicant’s upbringing, education and development, that he supported him financially, took care of his health, spent time with him, and showed an interest in and was proud of the boy’s achievements. The fourth applicant, in turn, was attached to the first applicant and called him “dad”. In those circumstances, rejecting his application to adopt the fourth applicant had amounted, in the first applicant’s view, to an interference with their right to respect for their family life. He also argued that the interference had not been “necessary in a democratic society”, as it had not been based on any “reasonable and sufficient” reasons. Moreover, the Moscow City Court’s judgment had been discriminatory, in breach of Article 14 taken in conjunction with Article 8 of the Convention, as the main reason for rejecting his adoption application had been because of his nationality. He had been treated less favourably than Russian nationals in the same position, with no reasonable justification. In support of his position, the first applicant relied on the case of Salgueiro da Silva Mouta v. Portugal (no. 33290/96, ECHR 1999‑IX), and E.B. v. France, ([GC], no. 43546/02, 22 January 2008).
The second applicant and the local childcare authority each filed written submissions supporting the first applicant’s appeal and argued that the judgment of 21 March 2014 had not been in the fourth applicant’s best interests. A public prosecutor filed an objection to the first applicant’s appeal, asking the appellate court to uphold the judgment of 21 March 2014.
(d) Decision of 24 June 2014
On 24 June 2014 the Supreme Court of Russia upheld the Moscow City Court’s judgment on appeal. It accepted the first-instance court’s reasoning that the first applicant’s adoption of the fourth applicant would not be in the latter’s best interests, as the first applicant was a national of the State which recognised same-sex partnerships, and there was no adoption agreement between the two States that excluded the possibility of the fourth applicant being re-adopted by a same-sex couple in that State.
The appellate court added that by virtue of Article 127 § 1 (13) of the Russian Family Code prospective adopters had first to have special training and that there was no evidence that the first applicant had had such training. The court considered that the fact that the first and second applicants had applied for adoption at different times was indicative of the first applicant’s intention to breach that legal provision by avoiding such training.
The Supreme Court of Russia dismissed the arguments made by the first applicant in his appeal. In particular, it rejected his statement that the absence of information about the father in the fourth applicant’s birth certificate may give rise to unnecessary questions and eventually lead to a breach of adoption secrecy. It noted that under Article 51 § 3 of the Russian Family Code the second applicant could request that the competent civil registration authorities put information about the first applicant in the fourth applicant’s birth certificate to indicate him as the child’s father. It found that the risk of a breach of adoption secrecy was very hypothetical and could not be confirmed by any evidence.
The appellate court also disagreed with the first applicant’s argument that the fourth applicant’s situation was not in his best interests and would be negatively affected by the refusal of adoption. It reiterated the first-instance court’s reasoning that the first and second applicant had initially decided, by mutual consent, that only the second applicant would adopt the child and that there was no evidence that the first two applicants could not have applied to adopt together. The appellate court added in that regard that there was no evidence that the fourth applicant’s situation had changed during the three months that had gone by between the second applicant’s adoption application and that of the first applicant.
(e) Supervisory review proceedings
The first applicant then attempted to institute supervisory review proceedings. He reiterated the arguments advanced in his appeal submissions and also argued that there was no requirement in Russian law for a married couple to apply to adopt a child at the same time. He added that he and his wife had been free to choose a form of adoption by which the second applicant had applied first and then him; he argued that that had been done in the fourth applicant’s best interests and that it could not be regarded as a justification to dismiss his adoption application.
By a decision of 27 November 2014 a judge at the Supreme Court of Russia refused leave to appeal to the first applicant, stating that the decisions of 21 March and 24 June 2014 had been correct and well-founded and that there were no reasons to review them.
B. Relevant international and domestic law and practice
1. Convention on Rights of the Child
The United Nations Convention on the Rights of the Child of 20 November 1989, to which Russia is a State Party, provides:
Article 21
“States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
...
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
...
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.”
2. The Russian Family Code
Article 71. Consequences of deprivation of parental authority
“...
6. Adoption of a child, whose parent(s) have been deprived of parental authority, shall be allowed no earlier than six months from the date of the decision on deprivation of parental authority.”
Article 123. Arrangements for children left without parental care
“1. Children left without parental care shall be transferred to a family to be brought up (adoption, guardianship or custody, foster family or ... care family) ...
Where such an arrangement is made, a child’s ethnic origin, religious and cultural background, mother tongue, the possibility to ensure continuity in [the child’s] upbringing and education shall be taken into account ...”
Article 124. Children eligible for adoption
“...
2. Adoption shall only be allowed in respect of children who are minors and only when it is in their best interests, in compliance with the requirements of Article 123 § 1 (3) of the Family Code, having due regard to the possibility to ensure their full physical, mental, spiritual and moral development ...”
Article 127. Individuals with the right to adopt
“1. Any individual of either sex who has reached majority can become an adopter except [for the following categories]:
... (13) individuals who have not taken a [training course for prospective adopters approved by competent bodies of the Russian Federation] ...”
The list of people banned from being adoptive parents was extended by Federal Law no. 167-FZ of 2 July 2013. In particular, the following paragraph was added:
“... (14) individuals who have formed a same-sex union recognised as a marriage and registered under the law of a State where such unions are authorised and unmarried individuals who are nationals of that State ...”
Article 165. Adoption
“1. The adoption, [or] revocation of adoption, of a child who is a national of the Russian Federation by foreign nationals or stateless persons within the territory of the Russian Federation shall be based on the legislation of the State of which the adopter is a national (or permanent resident, if a prospective adoptive parent is a stateless person) at the time of lodging an application for adoption or of revocation of adoption.
Adoption of a child who is a national of the Russian Federation by foreign nationals or stateless persons within the territory of the Russian Federation shall comply with the requirements [of several Articles of the Russian Family Code], with due regard to any [relevant] international agreement signed by the Russian Federation on inter-State cooperation in the field of the adoption of children.
Adoption of a child who is a national of the Russian Federation, within the territory of the Russian Federation, by foreign nationals or stateless persons married to nationals of the Russian Federation shall be performed in accordance with the procedure established in the [Russian Family] Code for nationals of the Russian Federation, unless otherwise provided by an international agreement signed by the Russian Federation.
...
2. If, as a result of adoption, a child’s rights established in the legislation and international agreements of the Russian Federation may be breached, adoption cannot be granted, irrespective of the adopter’s nationality, and an adoption that has been granted shall be revoked by a court.
...”
3. Law on the Rights of Child in the Russian Federation
Federal Law no. 124-FZ “On Basic Guarantees for the Rights of Child in the Russian Federation” of 24 July 1998 provides in section 4, in so far as relevant:
“1. The State pursues the following goals in its policy in furthering the interests of children:
implementing the rights of children secured by the Constitution of the Russian Federation, preventing discrimination against them, strengthening the basic guarantees for children’s rights and lawful interests, and restoring their rights when they have been breached;
establishing a legal base for guarantees for children’s rights;
promoting the physical, intellectual, mental, spiritual and moral development of children, cultivating patriotism and civic-mindedness, as well as ensuring the fulfilment of children’s personalities in the interests of the public and in accordance with the traditions of the various nations of the Russian Federation and the achievements of Russian and world culture, to the extent those are compatible with the Constitution of the Russian Federation and federal legislation ...”
4. Russian Code of Civil Procedure
Article 45. Participation of prosecutors in proceedings
“...
3. A prosecutor shall join the proceedings and give an opinion in cases of eviction, reinstatement at work, compensation for harm caused to life or health and in other cases provided for by the present Code and other federal laws for the purpose of the exercise of his powers ...”
Article 273. Examination of an adoption application
“An application for adoption shall be examined at a hearing in camera, with the obligatory participation of ... a public prosecutor ...”
5. Ruling of the Supreme Court of Russia
In ruling no. 8 “On the application of legislation by courts when examining adoption cases” of 20 April 2006, as amended on 17 December 2013, the Plenary of the Supreme Court of Russia stated, in so far as relevant:
“...
15. By virtue of Article 124 § 2 of the Russian Family Code, adoption shall only be allowed [if it is] in the child’s best interests and complies with the requirements of Article 123 § 1 (3) of the Russian Family Code, that is where a child’s ethnic origin; religious and cultural background; mother tongue; the possibility to ensure continuity in [the child’s] upbringing and education; as well the possibility to ensure the children’s full physical, mental, moral and spiritual development are taken into account.
The best interests of children at adoption presuppose the creation of a favourable environment (both materially and emotionally) for their upbringing and full development.
When considering the question of whether an adoption should be allowed, a court shall in each particular case examine and take into account the moral and other personal characteristics of the adopter as well as those of [his or her] family members living with him or her (their conduct at work, in everyday life, whether they have been held criminally or administratively liable, and so on); the state of health of the adopter and the above-mentioned persons; relations within their family; relations between the adopter and the child; as well as the attitude of the members of the adopter’s family towards the child ...”
COMPLAINTS
The applicants complain under Article 6 of the Convention that the participation of a public prosecutor in the civil proceedings for adoption undermined the principle of equality of arms.
The applicants also complain that the rejection of the first applicant’s application to adopt the fourth applicant breached their rights under Article 8 of the Convention as it was the result of an unforeseeable application by the domestic courts of the relevant domestic law in the light of the “explanation” provided by the Supreme Court of Russia on 29 August 2013, which has never been made public and is thus inaccessible. The applicants also allege that the interference with the rights in question was not “necessary in a democratic society”.
Lastly, the applicants complain that the rejection of the first applicant’s application to adopt the fourth applicant on the grounds of the first applicant’s nationality was discriminatory and thus breached Article 14 taken in conjunction with Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their private and/or family life, within the meaning of Article 8 § 1 of the Convention, on account of the domestic courts’ rejection of the first applicant’s application to adopt the fourth applicant? If so:
(a) Was that interference “in accordance with the law”? In particular, what was the legal basis for that interference? Did the relevant Russian legislation, as in force at the material time, meet the requirements of clarity and foreseeability? Was the interpretation of the relevant Russian legislation by the domestic courts foreseeable in the circumstances of the present case? Did the domestic courts base their interpretation of the relevant Russian legislation on the “explanation” of the Presidium of the Russian Supreme Court dated 29 August 2013, referred to in the interlocutory decision of the Moscow City Court of 13 December 2013? If so, was that “explanation” made public and therefore accessible? The Government are invited to provide a copy of the “explanation”.
(b) Did that interference pursue a legitimate aim?
(c) Was it “necessary in a democratic society”?
Alternatively, has the State complied with its positive obligation to ensure respect for the applicants’ private and/or family life, within the meaning of Article 8 § 1 of the Convention?
2. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the grounds of the first applicant’s nationality, contrary to Article 14 of the Convention read in conjunction with Article 8? In particular, have the applicants been subjected to a difference in treatment when compared with a married Russian couple, or a married couple where both or one of the spouses are nationals of a State that does not legally recognises same-sex unions? If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?
3. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the involvement of a public prosecutor in these proceedings (see Batsanina v. Russia, no. 3932/02, § 27, 26 May 2009; Korolev v. Russia (no. 2), no. 5447/03, § 33, 1 April 2010; and Menchinskaya v. Russia, no. 42454/02, 15 January 2009)?
Full & Egal Universal Law Academy