The influence of the ECHR upon Russian family law perhaps has not been so significant as in the field of civil procedure (f.ex.the introduction of a more transparent appellate process instead of system of supervisory review following the Ryabykh group of cases) or the rights of mentally-disabled persons (Shtukaturov group of cases). It is mostly due to the fact that in family cases ECtHR decisions had been used by the applicants for the re-opening of their case in domestic procedure.
The Notion of Family Life
In the case of Fedotova and Others v. Russia (appl. 40792/10, 30538/14 and 43439/14) the Court found that the refusal to register the notice of marriage of the applicants, who are same-sex couples, led to a violation of the Convention.
In the judgement Singla the Court reiterated that the notion of the “family” was not confined solely to marriage-based relationships, and may encompass other de facto “family” ties where the parties are living together outside of marriage,so the applicant’s exclusion due to his criminal record amounted to the violation of art. 8.
International Child Abduction
In the case Y.S. and O.S. v. Russia about return of an abducted child to a conflict zone in eastern Ukraine the Court held that the “grave risk” allegation had not been genuinely taken into account by the Russian courts and accordingly found a violation of the Article 8.
Failure of Russian authorities to ensure enforcement of order of return of the applicant’s children to Estonia, and as a result violation of the art. 8 in the judgement Makhmudova v. Russia delivered on the 1st December 2020.
The judgement Vladimir Ushakov v. Russia of 18 June 2019 concerned the removal from Finland to Russia of the applicant’s daughter. The ECtHR concluded that the interpretation and application of the provisions of the Child Abduction Convention 1980 by the Russian apellate court failed to secure the guarantees of Article 8 of the ECHR. Namely, the procedural shortcomings as to the evaluation of medical documents amounted to the judicial non-assesment of the best interests of the child. The ECtHR awarded the applicant 16,250 euro compensation in respect of non-pecuniary damage.
Withdrawal of Parental Authority
In the judgement Zelikha Magomadova v. Russia (appl. 58724/14) 8th of October 2019 the Court dealt with the question of withdrawal of parental authority of the mother of 6 children. Ms Magomadova was forcibly separated from her children by her brother-in-law in 2010. As a result, the children remained with her husband’s family, which has prevented her from having access to them since. The brother-in-law brought three sets of proceedings to deprive her of her parental authjority, which eventually went in his favour in 2013 .
The ECtHR found that such an arbitrary interference with her right to respect for her private life had no place in a democratic society.
In the judgement Y.I v. Russia of 25/02/2020 the applicant who was drug addict on treatment had been deprived of parental authority over her children, of which the two youngest placed in public care – violation of the Article 8.
But no violation in the judgement 30.6.2020 Ilya Lyapin, when the applicant, a natural father divested of parental rights due to voluntary and prolonged separation from child, who was well integrated into mother’s new family from an early age.
Adoption and Foster Care
The case Naltakyan v. Russia delivered the 20th of April 2021 concerns adoption of a child without his father genuine consent. The applicant’s wife lied to him that the child had died, and abandoned the child in the maternity hospital signing the document of abandonement and forging the applicant’s signature. The applicant learnt of his child’s survival at birth only a year and a half later. The applicant applied for access to and parental custody of his child, but failed. The ECtHR found the violation of Article 8 (in 13 years after his application to the ECHR).
Bogonosov v. Russia (appl. 38201/16) delivered the 5th of March 2019 concerned a grandfather who wanted to maintain contact with his granddaughter after her adoption by another family. Violation of article 8 because during the adoption procedure the City Court led the applicant to beleive that it was open to him to maintain the post-adoption contact through the procedure provided for by art. 67 of the Family Code.
V.D. and others v. Russia (appl.No 72931/10) delivered the 9th of April 2019 concerned a child, who was cared for by a foster mother, for nine years since his birth and was then returned to his biological parents. Violation of Art.8 because of the decision to deny the foster family any subsequent contacts with the child; critics of the rigid character of the right to have contact with a child in the Russian legislation.
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