5.  The first applicant was born in 1975 and lives in St Petersburg. X, the second applicant, was born in 2012 and lives in the Moscow region.
6.  The applicants are father and son. The first applicant lodged the application on his own behalf and on behalf of his son, who is a minor.
7.  Until April 2013 the first applicant, his wife M. and their son X lived together in St Petersburg, where X had his residence registration and his continuing paediatric and specialist care for his chronic illness, and where he was on the waiting list for a local nursery school.
8.  On 28 April 2013 M. left the first applicant and took X with her. According to M., she left the first applicant because of frequent disputes between them during which the first applicant had shouted at her. She left a note promising to contact him shortly. She went directly to her flat in Nizhny Novgorod. She sent him an email on 30 April 2013, indicating her whereabouts. According to the first applicant, she did not leave an address and did not answer her mobile phone. The first applicant unsuccessfully searched for her in Nizhniy Novgorod, where she possessed a flat jointly with her parents, and in Moscow, where her parents lived at that time.
9.  On 30 April 2013 the first applicant contacted the St Petersburg childcare authorities and asked for assistance in finding his son and returning him to his registered place of residence in that city.
10.  Later on the same day the first applicant learned that M. and the second applicant were in Nizhniy Novgorod and on 17 May 2013 M. allowed him to visit them there.
11.  Since that date M. has allowed the applicant to see his son on average six days per month for two hours each time. However, sometimes she has not allowed the first applicant to see his son for weeks at a time or has taken him out of town for long periods without informing the first applicant about his son’s whereabouts. For example, on 29 December 2013 the first applicant complained to the Nizhniy Novgorod childcare authorities that M. had taken X away to an unknown location and had cancelled a meeting that had been scheduled by mutual agreement for 27 December 2013.
12.  On 30 August 2013 M. instituted divorce proceedings before the Nizhegorodskiy District Court of Nizhniy Novgorod, and asked for a residence order in respect of X. She submitted, in particular, that she was on parental leave and was still breastfeeding her son. She was a part‑owner of her parents’ flat where she and her son occupied a room. She also argued that she could create better conditions for the development of the child because she had a university diploma and good references from her previous place of work and also because she was calm and loving.
13.  M. submitted an opinion by a psychologist, L., whom she and the first applicant had consulted once before their separation regarding their marital problems. L. noted that the first applicant’s supressed aggression towards M. and his wish to dominate her had been the cause of their marital issues. L. considered that in the event of divorce, it would be in X’s best interest to live with his mother.
14.  The first applicant asked that M.’s request for a residence order be rejected and that X be returned from Nizhniy Novgorod to St Petersburg. He submitted that it would be better for the child if he and both his parents lived in St Petersburg for the following reasons. Firstly, considerable amounts of money would be spent by the first applicant travelling to Nizhniy Novgorod to visit his son. If the entire family lived in St Petersburg, that money could be better spent on the child’s needs. Secondly, living conditions in St Petersburg were better than in Nizhniy Novgorod. The first applicant had three spacious flats in St Petersburg and a dacha in the surrounding region, while in Nizhniy Novgorod M.’s family possessed only a small one-bedroom flat. St Petersburg provided better development and educational opportunities having more sports centres, better schools and universities, and world-famous cultural heritage. It also had better medical services, less air pollution and a lower crime rate than Nizhniy Novgorod. Thirdly, the second applicant had been born in St Petersburg and had lived there until taken away by M. He had his residence registration and his continuing paediatric and specialist care there and was on the waiting list for a local nursery school. Moreover, X’s paternal grandparents and other relatives lived in St Petersburg. If M. agreed to move back to St Petersburg, the first applicant proposed donating one of his three flats to her. He proposed an arrangement according to which X would live one third of every month with him and two thirds of every month with M. until the age of three, and half of every month with each of the parents after that. He argued that that arrangement would ensure that the second applicant maintained family ties with both parents.
15.  Subsequently, the first applicant lodged a counterclaim, applying for a residence order in respect of the second applicant. He submitted that X’s young age alone could not justify his residence with his mother. He was older than one and a half years and there was no longer any need to breastfeed him. He submitted a copy of X’s medical records from which it was apparent that the breastfeeding had stopped in May 2013. The first applicant further submitted that he had a stable income from bank‑deposit interest while M. had no income and lived on the child maintenance that he paid her. He worked as a volunteer in a number of social NGOs and had flexible working hours and could therefore devote a lot of time to his son. Indeed, while they had lived together, he had spent as much time with the child and had been responsible for his everyday care as much as M. They had a very strong mutual attachment. Given his education and background, the first applicant could provide the child with a better upbringing. For example, he had teaching experience – in particular he had worked as a teacher in children’s summer camps. The first applicant further submitted that M. had abducted the child. She had restricted the first applicant’s contact with his son and had sometimes taken him away for long periods of time without informing the first applicant of his whereabouts. He vowed that if the child were to reside with him, he would not in any way hinder his contact with his mother.
16.  The Nizhegorodskiy District Court refused to accept the first applicant’s application for a residence order, finding that he should have submitted it at the beginning of the proceedings. It also refused to accept X’s medical records in the file, finding that they were irrelevant and that M. was the only one who could tell whether she was still breastfeeding.
17.  Lastly, the first applicant asked that the court appoint a psychological expert to examine him, M. and the second applicant to assess each parent’s suitability for raising the child and each parent’s relationships with him. The Nizhegorodskiy District Court rejected that application. It however asked the Nizhniy Novgorod and St Petersburg childcare authorities to assess the first applicant’s and M.’s living conditions and to express an opinion on the issue of the second applicant’s residence.
18.  The first applicant’s parents applied to intervene as third parties and that the second applicant’s residence be set as St Petersburg. They submitted, in particular, that they had not seen their grandson since March 2013 because M. had refused to bring him to St Petersburg for a visit. They could not visit him in Nizhniy Novgorod because the first applicant’s mother was disabled and could not travel there, a distance of more than 1,000 km. The first applicant’s father could not leave his wife alone and unassisted and could not therefore go to Nizhniy Novgorod either. The decision to set the second applicant’s residence as Nizhniy Novgorod with his mother would therefore most likely mean that they would never be able to see him again. The Nizhegorodskiy District Court dismissed their application to intervene as third parties, finding that they could lodge a separate suit.
19.  On 20 November 2013 the Nizhegorodskiy District Court adjourned the examination of the case until 20 February 2014, enjoining the first applicant and M. to attempt marriage reconciliation.
20.  On 18 February 2014 the St Petersburg childcare authorities issued their opinion on the case, finding that it was in the second applicant’s best interest to live with his father. It noted that M. had taken the child away and had for some time concealed his whereabouts from the first applicant. She had restricted the first applicant’s contact with the child. She was unemployed and had no income except the child maintenance paid by the first applicant. Her only pecuniary asset was a share in her parents’ one‑bedroom flat in Nizhniy Novgorod. M.’s parents lived in Moscow. By contrast, the first applicant had a stable and sufficient income from bank‑deposit interest and did not need to work. He could therefore spend most of his time with the child. He owned a one-bedroom flat in St Petersburg and part-owned two other flats. The first applicant’s parents lived in St Petersburg. His mother was confined to a wheelchair, which restricted her ability to travel to Nizhniy Novgorod to see her grandson.
21.  On 31 March 2014 the Nizhniy Novgorod childcare authorities also issued their opinion on the case, finding that it was in the second applicant’s best interest to live with his mother. It found that M. had good living conditions and received child maintenance from the first applicant and financial help from her parents. According to M., she was breastfeeding and was on parental leave devoting all her time to the child. She did not wish to return to St Petersburg. It was true that the first applicant also had good living conditions and had actively participated in the child’s upbringing and care. However, taking into account X’s young age, it was better for him to live with his mother for the time being. In reply to the applicant’s question, the Nizhniy Novgorod childcare authorities explained, in a letter of 12 May 2014, that a child was considered to be of “young age” until 18 years old and that “for the time being” meant until a change of circumstances, for example the child’s reaching the age of ten or fourteen.
22.  On 4 April 2014 the Nizhegorodskiy District Court granted the divorce and M.’s application for a residence order in respect of the second applicant. The court firstly cited the opinion of 31 March 2014 of the Nizhniy Novgorod childcare authorities. It then noted that the family had lived in St Petersburg until M. had left her husband and moved to Nizhniy Novgorod taking the child with her. M. co-owned the flat in Nizhniy Novgorod where she currently lived with X; that flat had everything necessary for a small child. The District Court continued:
“It is apparent from [M.’s] submissions that she is still breastfeeding the child. [M.] is on parental leave and devotes all her time to the child. [M.]’s parents help her take care of and [financially] support the child. The [first applicant] pays [M.] 15,000 roubles [RUB] every month of his own accord. The child is on a waiting list for a nursery school.
The [first applicant] ... takes an active part in his son’s life. He wants the child to live in St Petersburg, where he has created all necessary conditions for him. [M.] however categorically refuses to move to St Petersburg.
Both parents have positive character references and wish to live together with the child and participate directly in his upbringing.
In such circumstances, and based exclusively on the interests of the child and on the situation in which he is now, taking into account the child’s age, the court considers it opportune [целесообразно] to grant the residence order in respect of [X] to his mother [M.] for the time being.
The court reminds the parties that in accordance with Article 66 of the Family Code the parent residing separately from the child is entitled to maintain contact with the child and to participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development.
[The first applicant]’s ... financial situation allows him to visit the child in Nizhniy Novgorod (according to [the first applicant’s] submissions his monthly income is about RUB 60,000).
The [first applicant]’s arguments that St Petersburg has less air pollution, a lower crime rate and better local infrastructure for children than Nizhniy Novgorod are legally irrelevant because the child’s place of residence is with his parents. In the present case the court grants the residence order to the mother [M.]; [M.’s] place of residence is currently in Nizhniy Novgorod.”
23.  The first applicant appealed, repeating his previous arguments. He further complained that the District Court had not conducted an in-depth examination of the case. In particular, the District Court had not taken into account the opinion of 18 February 2014 of the St Petersburg childcare authority. It had not even cited the opinion, let alone explained why it disagreed with it. The only reason advanced by the District Court for its decision to grant the residence order to the child’s mother had been the child’s age. The child’s age was only one of the criteria mentioned in Article 65 of the Family Code (see paragraph 58 below) that the domestic courts were to take into account when deciding on a child’s residence arrangements. The District Court had not taken into account the other criteria mentioned in Article 65. Nor had it ordered a psychological expert examination to establish the child’s relationship with each parent and his best interests. Moreover, given that the second applicant had been more than one and a half years old at the time of the District Court’s decision, there had been no justification for automatically preferring residence with his mother over residence with his father. Such automatic preference of the mother over the father in a case where the father could provide better living and development conditions for the child had amounted to discrimination on grounds of sex. The first applicant also disputed some of the facts established by the District Court. In particular, the second applicant’s medical documents indicated that breastfeeding had stopped at the age of one. In any event, the official medical guidance recommended that breastfeeding be stopped at the age of one and a half years old at the latest. Moreover, M. was unemployed rather than on parental leave because she had not been in employment since 2009. In any event, M. had returned to work in December 2014 and since then the second applicant had been taken care of during the day by his maternal grandmother. By contrast, the first applicant had sufficient non-work income and a flexible schedule for his social-volunteer activities and could therefore take care of the child himself. Lastly, the first applicant argued that inherent in the concept of the child’s “best interests” was the right for a child not to be removed from one of his or her parents and retained by the other (he referred to Maumousseau and Washington v. France, no. 39388/05, 6 December 2007). M. had abducted the second applicant and had restricted the number and the length of the first applicant’s visits, including during the period after the District Court’s judgment. In total, during the previous nineteen months he had been allowed to see his son 122 times only. Lastly, the first applicant complained that the refusal to examine his counterclaim – that is his application for a residence order in his favour – had been unlawful.
24.  On 2 October 2014 the first applicant complained to the Nizhniy Novgorod childcare authorities that M. had continued to restrict his contact with his son. In particular, on several occasions she had agreed to a visit but after he had travelled from St Petersburg to Nizhniy Novgorod she had changed her mind and refused to let him see his son.
25.  On 10 March 2015 the Nizhniy Novgorod Regional Court upheld the judgment of 4 April 2014 on appeal. It held:
“Having analysed the entirety of the evidence in the case file, including the child authorities’ opinions on the merits of the case, [the District Court] made a reasoned finding that granting a residence order in respect of [X] to the father was not in the interests of the child who, after the parents’ separation, had been brought up by his mother.
The court rejects [the first applicant’s] appeal submissions ... which in essence convey a disagreement with [the District Court’s] assessment of evidence. It notes that a parent’s better financial or social situation or professional position are not decisive factors in deciding the question of the child’s residence ...
In the present case [the District Court] made a thorough assessment of the evidence presented by the parties in support of their claims and objections. The court’s findings were based on the evidence in the case file. There is no reason to doubt the impartiality of the examination and assessment of evidence ...”
The court also added that the issue of the child’s contact with his grandparents was to be examined in separate proceedings. Furthermore, the refusal to examine the first applicant’s counterclaim had not breached his rights as the domestic courts had to give a residence order to the parent who could better meet the needs of the child, irrespective of which of the parents had been the first to apply for a residence order in his or her favour and of whether the other parent had lodged a counterclaim or not.
26.  On 13 March 2015 the Nizhniy Novgorod childcare authorities informed the first applicant that they had had a meeting with M. during which she had been told that she had to keep the child’s father informed about the child’s whereabouts and that the child was entitled to maintain contact with his grandparents and other relatives.
27.  On 12 June 2015 the first applicant’s mother died. She had not seen her grandson since April 2013.
28.  On 6 October 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the residence order to the Presidium of that court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. It noted, in particular, that the main reason for granting the residence order to M. had been the second applicant’s young age. In such circumstances, the first applicant’s argument that it was in the child’s best interest to live with his father had been unconvincing. M.’s actions in taking the child away from St Petersburg had not amounted to abduction, a criminal offence under Article 126 of the Criminal Code. M. had not committed any criminal offence by moving to Nizhniy Novgorod with her son. Lastly, the judge found no evidence of discrimination.
29.  On 27 October 2015 a judge of the Supreme Court of the Russian Federation refused to refer the case to the Civil Chamber of the Supreme Court for consideration, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
30.  On 9 September 2015 M. moved to Moscow where she had found a job. X remained in Nizhniy Novgorod with his maternal grandmother.
31.  On an unspecified date the first applicant applied to the Nizhegorodskiy District Court for contact rights, claiming that M. decided whimsically on the days when she would allow him to see his son without taking into account that he lived in another town, and that she occasionally prohibited any contact between them for long periods of time.
32.  On 29 September 2015 the Nizhegorodskiy District Court allowed the first applicant’s application for an interim contact order. It determined the contact schedule as follows. While the main contact proceedings were pending, the applicants should be able to have contact for no more than ten consecutive days starting on the first Wednesday of each month, from 10 a.m. to 1 p.m. and from 5 to 8 p.m., unless otherwise agreed between the parents. The contact should take place at X’s place of residence, in the mother’s presence, or in her absence if she agreed, and with the right to attend outdoor activities for children if X was in good health. The court also ordered that M. should inform the first applicant immediately by telephone if X were suffering from illness, and inform him two days in advance about any temporary change of residence. If the applicants had not seen each other for more than ten days, M. should ensure their communication through IP telephony for no less than five minutes every two days. M. should not hinder the first applicant’s attendance of X’s medical procedures or educational and recreational activities in which X participated. She should also consult the first applicant in writing before taking any decisions concerning X’s medical treatment or education.
33.  On 8 December 2015 the Nizhniy Novgorod Regional Court upheld the interim contact order on appeal.
34.  On an unspecified date the Nizhegorodskiy District Court ordered an expert report to determine X’s relationship with each of the parents.
35.  On 19 January 2016 a panel of psychology and psychiatry experts examined the applicants and M. and found that X was attached to both parents and was emotionally close to both of them. They were both involved in X’s education, although their educational methods were different: M. was milder, more permissive and more supportive, while the first applicant was more domineering and controlling and was not always capable of taking into account X’s age and stage of development. X was more excitable and capricious in his father’s presence, while his mother’s presence had a soothing effect on him. According to X, his family included his mother and his maternal grandparents. The experts found that it was important that X should have stable residence arrangements; shared residence was not advisable at his age. At the same time, regular contact with the father was necessary for a balanced psychological development. Irregular contact with any of the parents would be detrimental to his relationship with that parent.
36.  On 1 February 2016 M. and X moved to Moscow Region.
37.  On 29 March 2016 the Nizhegorodskiy District Court found that the bailiffs service had not taken any actions to enforce the interim contact order of 29 September 2015 and ordered that the bailiffs service should redress the consequent breach of the first applicant’s rights.
38.  It therefore ordered that M. consult the first applicant before taking any decisions concerning X’s medical treatment or education. It further determined the contact schedule as follows. The applicants should be able to have contact (i) on Saturdays and Sundays of even weeks, from 11 a.m. to 6 p.m. at X’s place of residence with the right to attend outdoor activities for children; (ii) for two weeks during the summer at the first applicant’s place of residence with the right to travel to other places within Russia. The schedule was valid until X’s seventh birthday and was to be revised afterwards.
39.  On 8 July 2016 the Nizhegorodskiy District Court rejected the first applicant’s request for immediate enforcement of the contact order of 27 April 2016, finding that it did not belong to the category of cases where immediate enforcement was prescribed by law. There were no special circumstances justifying immediate enforcement, such as circumstances in which a delay in enforcement could lead to serious damage or make future enforcement impossible.
40.  On 31 August 2016 the Petrogradskiy District Court of St Petersburg allowed an application for a contact order lodged by X’s paternal grandfather and grandaunt. It found that M. had been preventing them from seeing X. It held that they should have contact with X for five consecutive days every two months. In view of their advanced age and consequent inability to travel, contact should take place in St Petersburg where X should be brought either by M. or by the first applicant.
41.  On 13 September 2016 M. was fined for hindering contact between the applicants in breach of the interim contact order of 29 September 2015.
42.  On 14 September 2016 the Nizhegorodskyy District Court found that, despite its decision of 29 March 2016, the bailiffs service had still not taken any actions to enforce the interim contact order of 29 September 2015 and again ordered that the bailiffs should redress the first applicant’s rights.
43.  On 25 October 2016 the Nizhniy Novgorod Regional Court upheld the contact order of 27 April 2016 on appeal. It amended the contact schedule, holding that in addition to the contact time determined by the District Court, the applicants should also have contact (i) from 3 to 7 p.m. on X’s birthday each year at X’s place of residence; (ii) on the first Wednesday and third Friday of each month from 3 to 7 p.m. at X’s place of residence; and (iii) for half an hour every day by means of Internet communications.
44.  On 13 March 2017 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the contact order of 27 April 2016, as upheld on appeal on 25 October 2016, to the Presidium of that court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
45.  On 4 April 2017 the St Petersburg City Court amended the contact order of 31 August 2016 on appeal, finding that the contact schedule was too onerous for X and M. It held that X’s paternal grandfather and grandaunt should be able to have contact with him for seven days every six months at the grandfather’s place of residence.
46.  On 18 April 2017 a judge of the Supreme Court of the Russian Federation refused to refer the first applicant’s cassation appeal against the contact order of 27 April 2016, as upheld on appeal on 25 October 2016, to the Civil Chamber of the Supreme Court, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
47.  On 1 March 2018 the Zheleznodorozhniy Town Court of Moscow Region granted the first applicant the right to bring X to St Petersburg for ten additional days during the summer holidays. It also increased the time the applicants were to spend together on X’s birthdays. On 11 July 2018 the Moscow Regional Court quashed that judgment on appeal and rejected the first applicant’s request to amend the contact schedule, finding that the contact schedule established by the judgment of 27 April 2016 was valid until X’s seventh’s birthday and that there was no reason to change it before that date.
48.  According to the Government, X now lives in Moscow Region with his mother. The first applicant is renting a flat in the vicinity of X’s new place of residence and regularly comes from St Petersburg to visit him. M. does not hinder the contact between the applicants. The first applicant pays child maintenance but does not give any other financial help.
49.  On 27 April 2015 the first applicant, acting on his own behalf and on behalf of the second applicant, lodged a claim with the Nizhniy Novgorod Regional Court seeking compensation for the non‑pecuniary damage sustained as a result of the excessively long examination of the child residence dispute, and costs and expenses. He submitted, in particular, that the nature of the dispute had called for particular expedition on the part of the domestic courts. Indeed, the case had concerned a residence dispute in respect of a very young child who, owing to the delay in examining the case, had unlawfully resided with his mother for almost two years.
50.  On 8 May 2015 a judge of the Nizhniy Novgorod Regional Court declared the claim lodged on behalf of the second applicant inadmissible. The court found that the second applicant had not been a party to the residence proceedings and could not therefore claim compensation for their allegedly excessive length.
51.  The first applicant appealed, submitting that the residence proceedings had directly affected the second applicant by determining his residence arrangements. The length of the residence proceedings had therefore breached the second applicant’s rights.
52.  On 8 July 2015 the Administrative Chamber of the Nizhniy Novgorod Regional Court upheld the decision of 8 May 2015 on appeal, finding that it had been lawful, well-reasoned and justified.
53.  On 9 July 2015 the Nizhniy Novgorod Regional Court awarded the first applicant 30,000 Russian roubles (RUB – about 475 euros (EUR)) for non‑pecuniary damage and RUB 12,886.40 for costs and expenses against the Ministry of Finance. The court noted that the proceedings had lasted one year, six months and seven days before two instances. It found that the first applicant had not contributed to the length of proceedings. It further held that the case had been simple, no expert opinions had been ordered nor witnesses questioned. There had been important delays in the proceedings attributable to the District Court, in particular excessively long intervals between hearings, adjournments caused by repeated failures to inform the parties of the dates of scheduled hearings and substantial delays in serving the reasoned judgment of 4 April 2014 and the hearing record on the parties and in forwarding the parties’ statements of appeal to the Regional Court. Accordingly, the first applicant’s case had not been heard within a “reasonable time”. When deciding on the amount of compensation, the Regional Court noted that the case had concerned a child residence dispute and that the delay in its examination had created legal uncertainty as to the child’s residence and had hindered the exercise by the first applicant of his contact rights.
54.  On 19 August 2015 a judge of the Nizhniy Novgorod Regional Court refused to refer the first applicant’s cassation appeal against the decision of 8 May 2015, as upheld on appeal on 8 July 2015, to the Presidium of that court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
55.  On 30 September 2015 the Administrative Chamber of the Nizhniy Novgorod Regional Court upheld the judgment of 9 July 2015 on appeal, finding that it had been lawful, well-reasoned and justified.
56.  On 27 November 2015 a judge of the Supreme Court of the Russian Federation refused to refer the first applicant’s cassation appeal against the decision of 8 May 2015, as upheld on appeal on 8 July 2015, to the Administrative Chamber of the Supreme Court, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings.
57.  On 5 July 2017 the Nizhniy Novgorod Regional Court awarded the applicants RUB 30,000 (about EUR 475) in respect of non‑pecuniary damage and RUB 11,398.34 for costs and expenses against the Ministry of Finance for the excessive length of the contact proceedings. The court found, in particular, that the delay in determining a definite contact schedule between the applicants had resulted in insufficient contact and had undermined their personal bond.