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Refusal to grant him residence did not breach father’s human rights

At the risk of turning this into my ‘European week’, I wanted to write about another European Court of Human rights (ECHR) case involving Russia, and also concerning the issue of a child’s residence. The outcome of this case, however, was quite different, and it acts as a counterpoint to the case I wrote about yesterday.

The facts in Leonov v Russia are in the main fairly straightforward and commonplace, even if some of the arguments put forward in the course of the proceedings may, to our eyes, seem quite remarkable.

The case concerned a boy, ‘A’, who was born in August 2007. In November 2009 his mother, ‘Ch’, moved out of the family home, taking A with her. A has lived with her ever since.

In March 2010 A’s father applied for a residence order, under which A would live with him.

Ch lodged a counterclaim, asking for a residence order under which A would live with her. She also sought an ‘interim measure’ pending the proceedings, forbidding the father from contacting A, or from picking him up from the nursery school without her prior permission. She claimed, in particular, that there was a risk that the father might kidnap A, and take him to Belarus, where his stepfather had a house. She stated that he had already tried to take A away from her and had in particular attempted to pick him up from his nursery school.

On 26 April 2010 the court allowed Ch’s request for an interim measure. The father only found out about this four days later when he went to visit A at the nursery school and the teachers refused to let him see the boy, citing the interim measure.

In June 2010 the childcare authority issued its report on the case. Its contents would I’m sure raise quite a few eyebrows in this country. The authority considered that, by reason of his very young age, A should reside with his mother. It stated that it was particularly important for a child to be raised by the mother until the age of five or six, that a lack of maternal care during that period, and in particular during the behavioural crises that a three-year-old typically undergoes, could result in the child developing negative character traits, such as stubbornness, surliness, hysterical reactions and inadequate social adaptation. The authority said that the residence arrangements could be reconsidered after A had reached the age of five or six years.

As Ch had prevented him from seeing A, the father applied to the childcare authority for a contact order. However, the childcare authority rejected the application, referring to the interim measure.

The father appealed against the interim measure. In February 2011 the Moscow City Court quashed the interim measure, saying that by making it the judge had prejudged the case.

The case was finally heard in April 2011, when the court made a residence order in favour of Ch. The father appealed, but the appeal court upheld the judgment, finding that it “had been lawful, well-reasoned and justified.”

The father applied to the ECHR arguing, inter alia, that the refusal to make a residence order in his favour and the making of the interim measure had violated his right to respect for his family life under Article 8 of the European Convention on Human Rights, and also amounted to discrimination on grounds of sex, contrary to Article 14.

The ECHR found, by a majority of six to one, against the father on both counts. It was not convinced by the father’s argument that the residence order was based on the judge’s belief that a small child was to be always raised by the mother, the father had been allowed to put forward all arguments in support of his case, and the reasons advanced by the domestic courts for coming to their decision were “relevant and sufficient.” As to the Article 14 claim, the residence order was based on an assessment of the best interests of the child in the particular circumstances of the case, rather than on a general assumption in favour of mothers.

And what of the interim measure, that appeared to pre-judge the case? Unfortunately for the father, the ECHR found this complaint inadmissible, as the father should have made it within six months of the date that the measure was quashed. This decision was ‘regretted’ by the dissenting judge, who found that there had been violations of both Article 8 and Article 14.

You can read the full report of the case here. The dissenting opinion of Judge Serghides can be found at the end of the report.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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