European Court of Human Rights

 

 

THIRD SECTION

CASE OF Y.Y. AND Y.Y. v. RUSSIA

(Application no. 43229/18)

 

 

 

 

 

 

JUDGMENT

 

STRASBOURG

8 March 2022

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Y.Y. and Y.Y. v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Georges Ravarani, President,
          Georgios A. Serghides,
          María Elósegui,
          Anja Seibert-Fohr,
          Peeter Roosma,
          Frédéric Krenc,
          Mikhail Lobov, judges,
and Milan Blaško, Section Registrar,

Having regard to:

the application (no. 43229/18) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Y.Y. (“the first applicant”), on behalf of herself and her son, Y.Y. (“the second applicant”), also a Russian national, on 3 September 2018;

the decision to give notice to the Russian Government (“the Government”) of the complaint under Article 8 of the Convention and to declare inadmissible the remainder of the application;

the decision to grant the application priority (Rule 41 of the Rules of Court);

the decision to grant the applicants anonymity ex officio (Rule 47 § 4 of the Rules of Court);

the observations submitted by the respondent Government and the observations in reply submitted by the applicants;

the comments submitted by the second applicant’s father, Mr A.Y., who was granted leave to intervene by the President of the Section;

Having deliberated in private on 18 January 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The present case concerns the lengthy non-enforcement of domestic court judgments granting the first applicant a residence order in respect of the second applicant. It raises an issue under Article 8 of the Convention.

THE FACTS

2.  The applicants were born in 1983 and 2011 respectively and live in St Petersburg. They were represented by Ms V. Kogan and Mr E. Wesselink from the Stichting Russian Justice Initiative, an NGO based in Moscow.

3.  The Government were initially represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and subsequently by Mr M. Vinogradov, his successor in that office.

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

I.        Background of the case

5.  In 2005 the first applicant married A.Y. They established their residence in St Petersburg.

6.  On 16 March 2011 the first applicant gave birth to their son, the second applicant.

7.  In 2014 the marriage between the first applicant and A.Y. was dissolved. The second applicant remained in the first applicant’s care.

II.     Proceedings TO DETERMINE the second applicant’s place of residence

8.  In 2015 the first applicant lodged an application with the Kuybyshevskiy District Court of St Petersburg (“the District Court”) for a residence order in respect of the second applicant and a determination of the contact arrangements between him and A.Y.

9.  On 22 October 2015 A.Y. collected the second applicant from his kindergarten and refused to return him to the first applicant. He applied for a residence order in his favour.

A.    Interim residence order and ensuing enforcement proceedings

10.  On 14 January 2016 the District Court decided that, pending the outcome of the residence proceedings, the child should reside with his mother, the first applicant, and maintain contact with his father, A.Y.

11.  On 19 January 2016 the St Petersburg Inter-District Bailiffs Service opened enforcement proceedings in respect of the above-mentioned interim decision.

12.  On 2 February 2016 a search for the second applicant was launched within the enforcement proceedings.

13.  On 26 February and 26 April 2016 administrative fines in the amount of 2,000 Russian roubles (RUB) each were imposed on A.Y. for depriving the second applicant of contact with his mother.

14.  On 31 May 2016 A.Y. was warned that he had to hand the second applicant over to the first applicant.

15.  In the course of the search activities, the second applicant’s whereabouts were established. He was found to be living with A.Y. in the town of Shali in the Chechen Republic.

16.  On 29 March 2017 the enforcement proceedings were transferred to the Shali Inter-District Bailiffs Service.

17.  Having resumed the enforcement proceedings on 18 April 2017, a bailiff from the Shali Inter-District Bailiffs Service sent enquiries to various registration authorities and credit organisations and banned A.Y. from travelling outside the Russian Federation.

18.  On 15 August 2017 the enforcement proceedings were discontinued (see paragraph 20 below).

B.    Final residence order and ensuing enforcement proceedings

19.  On 22 September 2016 the District Court allowed the first applicant’s application and decided that the second applicant should reside with her. The court further determined the contact arrangements between A.Y. and the second applicant. A.Y.’s application for a residence order in respect of the second applicant was dismissed.

20.  On 13 February 2017 the St Petersburg City Court upheld the above judgment on appeal.

21.  On 4 April 2017 the District Court set aside the interim decision of 14 January 2016.

22.  On 11 July 2017 a bailiff from the St Petersburg Inter-District Bailiffs Service instituted enforcement proceedings in respect of the judgment of 22 September 2016.

23.  On 21 July 2017 the bailiff assigned a bailiff from the Shali Inter‑District Bailiffs Service to take the measures necessary for enforcement of the judgment of 22 September 2016.

24.  On 26 July 2017 bailiffs from the Shali Inter-District Bailiffs Service attempted to enforce the judgment of 22 September 2016, however, enforcement could not take place because the first applicant was absent. She had informed the bailiffs of her inability to attend by telegram (owing to insufficient notice of the enforcement measure).

25.  On 27 October 2017 the bailiff from the St Petersburg Inter-District Bailiffs Service transferred the enforcement proceedings to the Shali Inter‑District Bailiffs Service.

26.  On 28 December 2017 the bailiffs attempted to enforce the judgment, however, the first applicant was again absent (as she was being interviewed by the Investigative Committee of the Chechen Republic in the framework of the criminal proceedings instituted against A.Y. for failure to hand the child over to her).

27.  On 23 January 2018 another attempt was made by the bailiffs to hand the second applicant over to the first applicant, without success. The record of the enforcement attempt indicated that “the child refused to have close communication with the mother and remain alone with her”. The record also contained a handwritten note by the first applicant’s lawyer to the effect that the bailiff had asked the second applicant, in the presence of his father, whether he wished to live with the first applicant. It further contained a handwritten note by the first applicant to the effect that the enforcement attempt had been carried out without the participation of the childcare authority and that the second applicant had informed her that he was not residing at the address where enforcement had been attempted.

28.  Having discovered that A.Y. and the second applicant had been residing in Moscow Region, on 27 March 2018 the first applicant retrieved the writ of enforcement and, on the same date, the enforcement proceedings were discontinued.

29.  On 7 May 2018, following a request by the first applicant, enforcement proceedings were instituted by the Moscow Regional Bailiffs Service.

30.  On 14 May, 25 June and 29 June 2018 bailiffs from the Moscow Regional Bailiffs Service attempted to enforce the judgment, in the presence of the childcare authority and a psychologist. However, enforcement could not take place because the second applicant was in an emotional state and refused to communicate with the first applicant.

31.  According to an opinion drawn up by the psychologist on 15 May 2018, the second applicant was emotionally attached to A.Y., his second wife and his younger half-brother. His attitude to the first applicant was ambivalent. Psychological counselling was recommended to the first applicant with a view to restoring her and the second applicant’s parent‑child relationship and making a new attempt at enforcement in a month’s time.

32.  During a subsequent attempt at enforcement on 8 August 2018, the first applicant took the second applicant with her against his will.

33.  On 10 August 2018 the enforcement proceedings were discontinued.

III.   Further proceedings TO DETERMINE the second applicant’s place of residence

34.  Following an application by A.Y., on 7 February 2019 the Vidnoye Town Court of Moscow Region decided that the second applicant should reside with him and ordered the first applicant to hand the second applicant over to him.

35.  On 26 August 2019 the Moscow Regional Court (“the Regional Court”) upheld the judgment of 7 February 2019 on appeal.

36.  On 18 March 2020 the First Cassation Court of General Jurisdiction quashed the appeal decision of 26 August 2019 and remitted the case to the Regional Court for a fresh appeal. The Cassation Court noted that the Regional Court had disregarded the fact that the second applicant had only not been residing with the first applicant because A.Y. had persistently failed to comply with the District Court’s judgment of 22 September 2016. It further considered that there had been no new circumstances in the best interests of the second applicant allowing it to be decided that he should reside with A.Y.

37.  On 10 June 2020 the Regional Court quashed the judgment of 7 February 2019 and dismissed A.Y.’s application for a residence order in respect of the second applicant. The court noted that the second applicant had resided with A.Y. from autumn 2015 until August 2018 as A.Y. had been acting unlawfully by preventing all contact between the second applicant and his mother. It ruled that there had been no new circumstances warranting the applicants’ separation.

IV.  Proceedings for compensation

38.  Meanwhile, on 13 June 2017 the first applicant brought proceedings against the Federal Bailiffs Service for compensation in respect of the non‑pecuniary damage caused to her by the bailiffs’ failure to secure enforcement of the interim residence order of 14 January 2016.

39.  On 6 September 2017 the Meshchanskiy District Court of Moscow allowed the first applicant’s claim, found the bailiffs’ inaction in the period between January 2016 to July 2017 unlawful and awarded her RUB 50,000^[1] in compensation for non-pecuniary damage.

40.  On 4 May 2018 the Moscow City Court upheld the above judgment on appeal.

RELEVANT LEGAL FRAMEWORK

41.  For the relevant provisions of domestic law, see Pakhomova v. Russia (no. 22935/11, §§ 91-112, 24 October 2013).

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

42.  The first applicant complained, on behalf of herself and the second applicant, that the domestic authorities had failed to comply with their positive obligations under Article 8 of the Convention by failing to ensure prompt and effective enforcement of the domestic courts’ judgments determining that the second applicant should reside with her. Article 8 of the Convention reads as follows:

“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.    Admissibility

43.  The Government did not dispute that the first applicant had standing to lodge an application on behalf of her son, a minor. Given that in cases arising out of disputes between parents, it is the parent entitled to custody who is entrusted with safeguarding the child’s interests, and that the domestic courts granted the first applicant a residence order in respect of the second applicant, thereby confirming that she was acting in his best interests (see paragraphs 10, 19-20 and 37 above), the Court finds that she has standing to act on her son’s behalf (see Hromadka and Hromadkova v. Russia, no. 22909/10, § 119, 11 December 2014, with further references).

44.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     Submissions by the parties

(a)    The applicants

45.  The applicants submitted that the interim decision of 14 January 2016 and judgment of 22 September 2016 had remained unenforced for over two and a half years. In their view, the measures taken by the bailiffs service had been sporadic, manifestly ineffective and protracted, and had produced no results. In the meantime, the bond between the applicants had been damaged, causing them anguish and distress.

(b)    The Government

46.  The Government submitted that the lengthy non-enforcement of the interim decision of 14 January 2016 and judgment of 22 September 2016 had been caused by repeated changes in the second applicant’s place of residence by his father A.Y., as well as the child’s psychological condition and his reluctance to live with the first applicant, which he had demonstrated during the enforcement proceedings. In their view, the domestic authorities had taken all the necessary measures to obtain enforcement of the above‑mentioned decision and judgment, and there had therefore been no violation of Article 8 of the Convention.

(c)    The third-party intervener

47.  A.Y. submitted various documents pertaining to the proceedings in which he and the first applicant had been parties. In so far as they were relevant to the examination of the issues at the heart of the present case, the contents of that material were reflected in the summary of the facts of the case.

2.     The Court’s assessment

48.  The general principles relevant for the Court’s assessment are summarised in Gubasheva and Ferzauli v. Russia (no. 38433/17, §§ 43-44, 5 May 2020).

49.  The Court observes that on 14 January 2016 the Kuybyshevskiy District Court of St Petersburg decided that, pending the outcome of the residence proceedings between the first applicant and the second applicant’s father, the second applicant, then aged four years and ten months, should reside with the first applicant, his mother (see paragraph 10 above). It further observes that by the judgment of 22 September 2016, which became final on 13 February 2017, the District Court granted the first applicant a residence order in respect of the second applicant (see paragraphs 19 and 20 above). It was not however until 8 August 2018, that is, two and a half years later, that the applicants were reunited. Accordingly, it has to be determined whether the national authorities took all the necessary steps which could reasonably have been expected of them to facilitate enforcement of the above judgments.

50.  The Court notes that, following a claim by the first applicant, on 6 September 2017 the Meshchanskiy District Court of Moscow found the bailiffs’ inaction in the enforcement proceedings in the period between January 2016 to July 2017 unlawful and awarded her the equivalent of 650 euros in compensation for non-pecuniary damage (see paragraph 39 above).

51.  The Court considers that, although the domestic court expressly acknowledged that there had been a breach of the first applicant’s right to respect for her family life in the period between January 2016 and July 2017 and awarded her compensation for non-pecuniary damage, she retained her victim status as no proper enforcement had been secured and the applicants continued to be separated (see, mutatis mutandis, Kuppinger v. Germany, no. 62198/11, § 137, 15 January 2015; and also Mijušković v. Montenegro, no. 49337/07, § 72, 21 September 2010 - reasoning applied in the context of Article 35 § 1 in a family case - and see also Milovanović v. Serbia, no. 56065/10, § 98, 8 October 2019; and Mansour v. Slovakia, no. 60399/15, §§ 42-43, 21 November 2017).

52.  As regards the subsequent period between July 2017 and August 2018, the Court observes that between 26 July and 28 December 2017 only two attempts were made to reunite the applicants, both of which were unsuccessful owing to organisational oversights: firstly, failure to notify the first applicant in sufficient time and, secondly, failure to co-ordinate the enforcement measure with the other competent authorities (see paragraphs 24 and 26 above). While it became clear during the subsequent attempt at enforcement carried out on 23 January 2018 that it would be complicated by the child’s emotional state and prolonged separation from his mother (see paragraph 27 above), no measures were taken by the bailiffs to prepare him for the subsequent enforcement attempts carried out at short intervals in May to June and August 2018 (see paragraphs 30 and 32 above). The Court notes the presence of the childcare authority and a psychologist during some of the enforcement measures. However, given the irremediable consequences that the passage of time has on the relationship between a child and parent, the Court finds that the implementation measures taken by the bailiffs were not adequate in the present case to ensure swift implementation of the enforcement order.

53.  Having regard to the foregoing, the Court concludes that the Russian authorities failed to take, without undue delay, all the measures that they could reasonably have been expected to take to enforce the interim decision of 14 January 2016 and judgment of 22 September 2016, and thereby breached the applicants’ right to respect for their family life, as guaranteed by Article 8.

54.  There has accordingly been a violation of Article 8 of the Convention.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

55.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

56.  The applicants claimed compensation for non-pecuniary damage in an amount to be determined by the Court.

57.  The Government submitted that no award should be made under that head as the applicants had failed to specify the exact amount claimed. In any event, the first applicant had already received compensation for the non‑enforcement of the interim residence order.

58.  The Court is satisfied with the manner in which the applicants formulated their claim. It has already allowed claims formulated in the same way in many other cases (see, most recently, Strand Lobben and Others v. Norway [GC], no. 37283/13, § 230, 10 September 2019, and Gubasheva and Ferzauli, cited above, § 64).

59.  In the light of the circumstances of the case, including the fact that some compensation has been provided to her at the domestic level (see Mansour, cited above, § 75), and making an assessment on an equitable basis as required by Article 41, the Court awards the first applicant 3,300 euros (EUR) under this head. As to the second applicant, the Court considers that the finding of a violation provides sufficient just satisfaction for any non‑pecuniary damage he may have suffered as a result of the violation of his Article 8 rights (see Gubasheva and Ferzauli, cited above, § 61, with further references).

B.    Costs and expenses

60.  The first applicant also claimed EUR 17,085.36 in respect of costs and expenses, broken down as follows:

(i)  EUR 10,435.47 for travel expenses, notary services, legal fees, private detective services, courier costs and expert fees in connection with her participation in the domestic enforcement proceedings; and

(ii)  EUR 6,649.89 for legal assistance in the proceedings before the Court and associated administrative expenses.

61.  The Government submitted that the claim under (i) was unsubstantiated. With respect to the claim under (ii), they submitted that the first applicant could not be said to have actually incurred those costs. In particular, the legal services agreement provided that legal fees were payable to the representative only in the event of a successful outcome of the proceedings before the Court, which made such an agreement unenforceable against the applicant in Russia.

62.  The Court takes note of the principle that the award should be made in so far as the costs incurred are necessary and reasonable. It further notes that it has previously accepted contingency fee agreements in support of the applicant’s claims for costs and expenses in many cases (see Muruzheva v. Russia, no. 62526/15, §§ 65-66, 15 May 2018; A.B.V. v. Russia, no. 56987/15, §§ 88-91, 2 October 2018; and Gubasheva and Ferzauli, cited above, §§ 66-67). The Court therefore awards the first applicant EUR 4,000 covering costs under all heads, plus any tax that may be chargeable, of which EUR 2,000 is to be paid directly into the bank account of Stichting Justice Initiative.

C.    Default interest

63.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1.      Declares, unanimously, the complaint under Article 8 of the Convention admissible in respect of the first applicant and, by a majority, the same complaint admissible in so far as it concerns the second applicant;

2.      Holds, unanimously, that there has been a violation of Article 8 of the Convention in respect of both applicants;

3.      Holds, unanimously,

(a)  that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,300 (three thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses, out of which EUR 2,000 (two thousand euros) to be paid to the bank account of Stichting Justice Initiative;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Holds, unanimously, that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the second applicant;

5.      Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 8 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Milan Blaško                                                  Georges Ravarani
                 Registrar                                                             President

 

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a)  concurring opinion of Judge Elósegui;

(b)  partly dissenting opinion of Judge Seibert-Fohr.

G.R.
M.B.

CONCURRING OPINION OF JUDGE ELÓSEGUI

1.  I agree with the finding of a violation of the Article 8 of the Convention in the present case. This concurring opinion is aimed at delving deeper into the question of the locus standi of the mother (Y.Y) in representing her child (Y.Y) in this case.

2.  As I have previously affirmed in the concurring opinion in the case of A.M and Others. v. Russia (concurring opinion of Judge Elósegui and joint concurring opinion of Judges Ravarani and Elósegui, A.M. and Others v. Russia, no. 47220/19, 6 July 2021)^[2], in family-related matters under domestic civil law proceedings, where multiple parties are involved, the European Court of Human Rights encounters a number of difficulties in analysing questions of locus standi where one of the parents wants to act on behalf of the minor, in cases of an alleged violation of Article 8 ECHR.

3.  In the present case, the mother complained, on her own and her child’s behalf, that the domestic authorities had failed to comply with their positive obligations under Article 8 of the Convention by failing to ensure prompt and effective enforcement of the domestic courts’ judgments determining that her son, who was a minor at the time, should reside with her. One of the criteria of the case-law of the Court governing the parents’ legal representation before the Court has been that the parent entitled to custody has locus standi to act in the name of his or her child. In the present case, after the marriage was dissolved in 2014, the child remained in the care of the mother and under her guardianship and custody (see § 7). The Court has rightly established in previous cases that the parent entitled to custody who is entrusted with safeguarding the child’s interests acts in the best interests of the child (see paragraph 43 and see Sahin v. Germany, no. 30943/96, 11 October 2001; Moog v. Germany, nos. 23280/08 and 2334/10, §§ 39-42, 6 October 2016; and K.B. and Others v. Croatia, no. 36216/13, §§ 109-110, 14 March 2017). Moreover, the mother was issued with a residence order stating that the child had to reside with her. Nor did the Russian Government dispute the mother’s locus standi (see paragraph 44). Conversely, in another Croatian case, the Government at the outset expressed their concerns about the fact that the applicant was represented by his mother in the proceedings before the Court because they saw a conflict of interests (C v. Croatia, no. 80117/17, § 54, 8 October 2020). The Court did not accept the State’s plea in this respect, and observed that the applicant had been a minor at the time of lodging of the application, that his mother had been granted temporary custody (see paragraph 56), and that his mother was acting in the best interest of the child.

4.  Furthermore, coming back to the present case, the father was allowed to intervene in the Court as a third party, submitting his own observations, proofs, documents and views as well as challenging the mother’s arguments in the proceedings before the Court. The decision to grant the child´s father leave to intervene as a third party in the proceedings was granted at the latter’s request by the Vice-President of the Section pursuant to Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of the Court. We have had a similar case in the same Section III, namely Y.S. and O.S. v. Russia, no. 17665/17, 15 June 2021, concerning the abduction of a child by her mother, taking her from Ukraine to Russia. The father, who has the custody, was invited to participate in the process and he presented his observations as a third party. In this case the abducting mother was the applicant before the Court, and she acted on behalf of the child who was living with her in Russia, even though she did not have custody of her.

5.  In the present case, the Court has allowed the father to act as a third party even though he does not have custody of the child, whom he kidnapped (collected) from kindergarten and refused to return him to the mother (see paragraph 9). His applications to the Russian domestic courts for a residence order in his favour were unsuccessful, with the courts deciding that the child should reside with her mother. In sum, in my opinion the father has been adequately heard in the process not only in the domestic courts but also before the Court. Furthermore, it is difficult to establish a general rule governing the presence in the Court of the parent who is not the applicant. Nevertheless, the Court acting through the Section Presidents or Vice-Presidents can provide possible means of hearing those parties, if they so wish, without any explicit need always to designate them ex officio^[3]. It is quite difficult to establish any rigid general rule in this sphere, and the Court has hitherto solved this problem in different ways, depending on the specific and concrete circumstances of each case (for the different opinions of Judges in the Court I would refer to my previous comments on the concurring opinion in A.M. and Others v. Russia, cited above, §§ 8-9).

6.  The second question which arises in the present case is the attitude adopted by the child. The bailiffs were unable to find the father and to return the child to his mother for two years. It was the mother herself who finally found the child and took him with her. The child had been taken away by his father on 22 October 2015, and it was not until 8 August 2018, two years and a half later, that mother and child were reunited. Considering that the child was born on 16 March 2011, that means that he had only been three years and nine months old when he had been abducted by his father. It is quite normal that he was attached to his father, the latter’s second wife and his younger half-brother (see paragraph 31). Moreover, the father was acting unlawfully by preventing all contact between the child and his mother (see paragraph 37). However, I myself and the majority of the Judges in this judgment take the view that that is not a reason to deny the mother the right to act on her child’s behalf before the Court or to ask for a legal representative other than his mother. The latter has at all times acted in accordance with the law, and she has full guardianship of the child. She cannot be penalised with any hypothetical removal of the legal representation of her child. Moreover, in the case in hand, as we have seen in a great deal of Russian case-law concerning mothers, the Regional Bailiffs Service did almost nothing to enforce the judgment (see paragraph 30). This leads me to two conclusions. First, this is not a case where the child has to be heard directly before the Court through the intermediary of a legal representative other than the mother. In fact, the child’s rights have been fully respected by her mother, who has consistently complied with the law. There is no objective need to appoint a separate representative for the child. Secondly, and moreover, it is very difficult, nay impossible, for an international court to directly hear a child who was only seven years old when the application was lodged before the Court, on 3 September 2018.

7.  The Court’s case-law includes a wide variety of situations concerning disputes between two parents (where only the parent legally holding custody can bring the case on behalf of the child) and cases relating to a dispute between one of or both the parents and the State (in which case just the biological link of a natural parent is sufficient) (see Sahin, cited above, and Moog, cited above).

8.  However, where one of the parents might be suspected of committing alleged breaches of Articles 2, 3 and 8 in respect of the child, then the Court may consider the possibility that that parent is not the appropriate person to represent the child before the Court (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 103, ECHR 2014).

9.  The Court’s previous case-law includes several cases relating to childcare brought, for a variety of reasons, by persons other that the legal guardians. For instance, an aunt with no parental authority over the children concerned (see N.Ts. and Others v. Georgia, no. 71776/12, §§ 52‑59, 2 February 2016); a biological mother, following the adoption of the child (see A.K. and L. v. Croatia, no. 37956/11, §§ 46-50, 8 January 2013); mothers deprived of parental authority by the State admitted as applicants on behalf of their children, who had been placed in a State institution (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 138, ECHR 2000‑VIII, and Diamante and Pelliccioni v. San Marino, no. 32250/08, § 146, 27 September 2011). More recently, a biological mother was accepted to act in behalf of herself and her biological son who had been given up for adoption when he was one month old (see Strand Lobben and Others v. Norway [GC], no. 37283/13, 10 September 2019).

10.  There are other situations where the child was represented before the Court by a representative ad litem by the Government further to a request from the Court or because the child already had a legal defendant in his or her contracting country. Some examples are S.P., D.P., and A.T. v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996, where a solicitor bringing a complaint on behalf of children had already represented those children in the domestic court proceedings and had been appointed by the guardian ad litem. When the case was lodged with the Court, the Commission considered whether other more appropriate representatives were available, as well as the nature of the links between the solicitor and the children, the object and scope of the application introduced on their behalf and whether there were any conflicts of interests because of the alleged emotional abuse of the mother. In another very recent Section III case, in which I sat, the applicant child’s application was lodged on the authority of his legal guardian appointed in the domestic proceedings because he had no other legal parent since he was born in the USA of a surrogate mother (see Valdís Fjölnisdóttir and Others v. Iceland, no. 71552/17, § 2, 18 May 2021).

11.  After this overview of case-law relating to the representation of a child, I conclude that the mother was the proper person to represent her child before the Court in the concrete circumstances of the case.

 

Partly Dissenting Opinion OF

Judge Seibert-Fohr

1.  While I agree with the majority’s findings regarding the first applicant, I am not in a position to agree with the assumption that the first applicant had locus standi to lodge an application on behalf of the second applicant. To base this holding simply on the first applicant’s custodial rights (see paragraph 43) in a situation in which there are clear indications of a potential conflict of interest is rather rash and therefore not in line with the best interests of the child.

2.  In all decisions concerning children their best interests are of paramount importance. This principle is universally accepted (see Convention on the Rights of the Child, concluded in New York on 20 November 1989) and protected under the Convention (see Vavřička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, §287, 8 April 2021; Advisory opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother [GC], request no. P16‑2018‑001, French Court of Cassation, § 38, 10 April 2019, with further references; and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010)). Pursuant to Article 3 of the Convention on the Rights of the Child, in all actions concerning children the best interests of the child shall be a primary consideration (see also Committee on the Rights of the Child General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3 § 1), 29 May 2013). This applies a fortiori to proceedings before the Court in Article 8 cases in which possible conflicts of interest are closely intertwined with questions relating to the right to respect for family life and where the interests of the child may diverge from those of the parent.

3.  In the present case, the first applicant took her child with her against his will on 8 August 2018 (see paragraph 32). Shortly thereafter, that is, on 3 September 2018, she filed the application on his behalf against the non‑execution of the return order. Having regard to the fact that the non‑execution was at least in part due to the second applicant’s repeated objection to return to the first applicant (see paragraphs 27, 30 and 31), it is too rash to assume that the first applicant acted in her son’s interests when she filed the application not only on her behalf, but also on his.

4.  The majority argues that the domestic courts had granted the first applicant a residence order in respect of the second applicant, thereby confirming that she was acting in his best interests. What is overlooked is the fact that the order had been issued on 22 September 2016, that is two years before the first applicant filed her application before the Court. In the meantime, the second applicant had continued residing with his father where he ultimately stayed from autumn 2015 until August 2018. According to the opinion drawn up by a psychologist on 15 May 2018, the second applicant was emotionally attached to his father, the latter’s second wife and his younger half-brother (paragraph 31). In this situation, and without any further indication of the child’s interests, it cannot simply be concluded from an order that had been issued two years earlier, that filing an application against the non-execution of the initial order was in the child’s best interests. Nor did the subsequent court proceedings provide sufficient indication of the second applicant’s best interests. The decisions given by the First Cassation Court of General Jurisdiction and the Regional Court in 2020, upholding the residence order in favour of the applicant, were largely based on A.Y.’s behaviour. Such findings are insufficient to allow the Court to conclude that the applicant, in filing the application on behalf of the second applicant, was acting in his best interests.

5.  Pursuant to Article 12 of the Convention on the Rights of the Child, every child who is capable of forming his or her own views shall be assured the right to express those views freely in all matters affecting the child. The views of the child shall be given due weight in accordance with the age and maturity of the child (Art. 12 § 1). For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child (Article 12 § 2). Therefore, the Court should not assume lightly the locus standi of a parent in cases of potential conflicts of interests. This is even more so in cases entailing a risk that children get instrumentalised in custody conflicts between their parents.

6.  Therefore, the parent’s custody rights cannot be decisive. While the purpose of national rules in respect of locus standi may sometimes be analogous to those contemplated by Article 34, the Court has recognised in A.K. and L. v. Croatia that the conditions governing the individual applications under the Convention are not necessarily the same as national criteria relating to locus standi. (A.K. and L. v. Croatia, no. 37956/11, § 46, 8 January 2013). The decisive question under the Convention is therefore whether the parent lodging an application on behalf of a child can be assumed adequately to present the child’s interests before the Court.

7.  This issue has been addressed, albeit unsuccessfully so far, by several judges of the Court (see, for example, the joint dissenting opinion of Judges Koskelo and Nordén in Strand Lobben and Others v. Norway [GC], no. 37283/13, 10 September 2019 and the partly dissenting, partly concurring opinion of Judge Nussberger in Raw and Others v. France, no. 10131/11, 7 March 2013). In his concurring opinion in X, Y and Z v. the United Kingdom Judge Pettiti referred to the conflict of interests between parents and children (no. 21830/93, 22 April 1997, Reports of Judgments and Decisions 1997‑II). He considered it desirable for the Court to suggest to the parties that a lawyer be instructed specifically to represent the interests of the child alone.

 

 

10.  Neither can the argument persuade in the instant case that not recognising parents’ locus standi in cases of a potential conflict of interest would jeopardise the protection of children. Although the danger that the child’s interest may not be brought to the Court’s attention has led the Court to recognise locus standi in cases involving public-care measures, where the State as holder of custodial rights cannot be deemed to ensure the child’s Convention rights, the present case is substantially different as it concerns a conflict concerning parental rights. The matter was brought to the attention of the Court by the mother, while the father participated in the proceedings as a third-party intervener. Taking into account the fact that children have a natural interest in maintaining good relations with both their parents, and in view of the second applicant’s opposition to his return, I am doubtful that drawing a child into a legal dispute of this kind is in his best interests.

11.  Moreover, I am doubtful that it serves the protection of the legal interests of a child in such cases if the Court delivers a judgment on the basis of submissions presented by the parent who has custody, not even if the other parent participates as a third-party intervener. What is subject of the protection of family life under Article 8 depends essentially on individual choices and preferences. What a child considers the subject of his or her family life must not necessarily coincide with the custodial parent’s views. To argue that the second applicant’s application was successful means turning a blind eye to a child’s expressed views without valid indication of what can be considered his or her best interests. Therefore, if a child raises objections against his return to one of the parents, one cannot assume that his rights are better served if the parent to whom he does not want to return brings an application to the Court arguing that the child was not brought back earlier against his will.

12.  In conclusion, and without making any general presumptions regarding the second applicant’s best interests, it is important to recognise that there are cases in which it might be in a child’s best interests not to be drawn as an applicant into a legal dispute, which is essentially one between the parents. I doubt that the concerns raised above can be satisfied by a simple rule of procedure that requires separate legal representation of the child without considering whether the application itself is in fact in the best interests of the child. The Court should carefully examine in each individual application showing signs of a potential conflict of interest whether granting a parent locus standi in an application brought in a parent’s own interest is also in the best interests of his or her child. Custodial rights are insufficient grounds in this respect.