THIRD SECTION
 
 
 
 
 
 
CASE OF LEONOV v. RUSSIA
 
(Application no. 77180/11)
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
 
10 April 2018
 
 
 
FINAL
 
10/07/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Leonov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Helena Jäderblom, President,
 Luis López Guerra,
 Helen Keller,
 Dmitry Dedov,
 Alena Poláčková,
 Georgios A. Serghides,
 Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 17 October 2017 and 13 March 2018,
Delivers the following judgment, which was adopted on the latter date:
PROCEDURE
1. The case originated in an application (no. 77180/11) 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, Mr Sergey Aleksandrovich Leonov (“the applicant”), on 9 December 2011. 2. The applicant was represented by Ms S. Krasovskaya (Kharchenko), a lawyer practising in the Moscow Region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. The applicant alleged, in particular, that the refusal to make a residence order in his favour in respect of his son, and the interim measure as regards contact rights applied while the proceedings had been pending, had violated his right to respect for his family life and the principle of equality of spouses, and had, moreover, amounted to discrimination on grounds of sex. 4. On 26 May 2015 the above complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1983 and lives in Moscow. 6. On 21 August 2007 the applicant’s wife, Ch., gave birth to a son, A. 7. The family lived at the applicant’s flat, where A. had his registered residence. He received ongoing paediatric care at the neighbourhood children’s clinic and attended a neighbourhood nursery school. 8. In November 2009 Ch. decided to leave the applicant. She moved back to her parents’ residence and took A. with her. A. has been living with her ever since. 9. On 9 March 2010 the applicant applied to the Justice of the Peace of the 339th Court Circuit of the Vostochnoe Dergunino District of Moscow for a residence order under which A. would live with him. He was instructed to make corrections to his claim, which he did on 8 April 2010. On the same day the case was transferred to the Timiryazevskiy District Court of Moscow. It registered the case on 26 April 2010 and scheduled the first hearing for 13 May 2010. 10. On 26 April 2010 Ch. lodged a counterclaim, asking for a residence order under which A. would live with her, and for an interim measure pending the proceedings. She claimed, in particular, that there was a risk that the applicant 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 the boy’s nursery school. 11. On the same day, 26 April 2010, the Timiryazevskiy District Court allowed Ch.’s request for an interim measure and forbade the applicant from contacting A. or picking him up from the nursery school without Ch.’s prior permission. It held as follows:
“The subject matter of the case is the residence of a child [A.] born in 2007. The parents have been unable to come to an agreement on this matter. The child is now living with his mother [Ch.]. The court therefore considers that the requested interim measure would be proportionate to the claim. Otherwise, failure to take interim measures might complicate or make impossible the execution of the forthcoming judgment.”
12. The applicant learned of the interim measure on 30 April 2010. On that day he came to visit A. at the nursery school and the teachers refused to let him see the boy, citing the interim order. 13. In April and May 2010 the Lyublino and Dergunino childcare authorities examined the applicant’s and Ch.’s flats and found their living conditions satisfactory and suitable for a small child. 14. The first hearing was scheduled for 20 May 2010 but it was adjourned until 24 May 2010 at the applicant’s request. The next hearing was scheduled for 9 June 2010 but it was also adjourned until 23 June 2010 for the purposes of “obtaining evidence”. 15. On 22 June 2010 the Lyublino childcare authority issued its report on the case. It considered that, by reason of his very young age, A. should reside with his mother. The childcare authority considered that it was particularly important for a child to be raised by the mother until the age of five or six. 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 residence arrangements could be reconsidered after A. had reached the age of five or six years. 16. On 29 June 2010 the Timiryazevskiy District Court ordered an expert psychological examination and adjourned the proceedings. The experts were asked their opinion on what residence arrangements would be in A.’s best interests. 17. On 6 July 2010 the applicant lodged an appeal with the Moscow City Court against the decision of 29 June 2010 ordering an expert examination. The appeal hearing was scheduled for 29 July 2010 but was adjourned until 17 August 2010 because the parties did not appear. On 17 August 2010 the Moscow City Court upheld on appeal the decision of 29 June 2010. The case file was sent to the experts on 8 September 2010. 18. Meanwhile, as Ch. had prevented him from seeing A., the applicant applied to the childcare authority for a contact order. On 15 July 2010 the childcare authority rejected the application, referring to the interim measure imposed by the Timiryazevskiy District Court. 19. On 9 August 2010 the District Court received by post the applicant’s appeal, dated 6 May 2010, against the decision of 26 April 2010 ordering the interim measure. The applicant submitted that there had been no justification for the interim measure, which had been motivated solely by the prevailing belief that a child should be raised by the mother rather than the father. He further submitted that the interim measure was contrary to A.’s best interests. A lack of contact with his father and the paternal family – A.’s grandparents, uncle, aunt and cousins – to whom he was very attached might cause A. psychological trauma. It might, moreover, result in A.’s estrangement from his father or, given his very young age, even his forgetting his father altogether. It also created a risk that Ch. might turn A. against his father. It might in turn mean that the results of any future expert examinations – and, by extension, any future judicial decision on the child’s residence – would be biased against the applicant. Lastly, the applicant submitted that the interim measure breached his right to maintain contact with his son. 20. On 17 September 2010 the Justice of the Peace of the 133th Court Circuit of the Mytichshinskiy District of the Moscow Region convicted Ch. of assault and battery, a criminal offence under Article 116 of the Criminal Code. In particular, the court found it established that on 20 June 2010 the applicant had approached Ch. and A. while they were playing at the local public beach and had hugged his son. Ch. had immediately snatched the boy away from him and had hit the applicant at least two times, causing him bodily injuries, before carrying the boy away. A fine was imposed on her. 21. On 11 November 2010 the experts issued their report. They found that it would be beneficial for A. to maintain contact with both parents. He was equally attached to both of them. Both parents were equally capable of raising the child. The serious conflict currently persisting between the parents could negatively affect A.’s psychological development. 22. On 12 November 2010 the proceedings were resumed. Hearings were scheduled for 24 November and 7 December 2010 but could not take place because some of the participants did not appear. 23. On 23 December 2010 the Dergunino childcare authority issued its report on the case. It found that A. should reside with his mother, referring to A.’s young age and the fact that he had lived with his mother for some time already and was attending a neighbouring nursery school. 24. During the hearing of 24 December 2010 the applicant lodged an objection against the judge of the Timiryazevskiy District Court, submitting that she (that is to say the judge) had stated on several occasions that she would rule against the applicant because according to the established practice of the Timiryazevskiy District Court a residence order was always made in favour of the mother. The judge dismissed the applicant’s objection. 25. On 18 January 2011 the Timiryazevskiy District Court allowed a request lodged by the applicant for the proceedings to be stayed; it accordingly stayed the residence order proceedings pending the criminal proceedings against Ch. 26. On 26 January 2011 the Mytishchi City Court upheld Ch.’s criminal conviction on appeal. The conviction acquired binding force. 27. On 8 February 2011 the Moscow City Court quashed on appeal the decision of 26 April 2010 ordering the interim measure. It found that the interim measure had been unconnected to the subject matter of the case and had therefore been disproportionate. There had been no evidence that the execution of the forthcoming judgment might be complicated or impossible. By applying the interim measure, the judge had prejudged the case. The City Court remitted Ch.’s request for an interim measure for fresh examination by the Timiryazevskiy District Court, which rejected it on 1 April 2011 as unsubstantiated. 28. Meanwhile, on 16 March 2011 the childcare authority instructed Ch. that she should stop preventing A. from seeing his paternal family. 29. On 30 March 2011 the Timiryazevskiy District Court granted the divorce of the applicant and Ch. 30. On 7 April 2011 the Moscow City Court, acting by way of supervisory review, quashed the judgment of 26 January 2011 upholding Ch.’s conviction and remitted the criminal case for fresh examination by the appellate court. 31. On 12 April 2011 the Timiryazevskiy District Court resumed the residence order proceedings and held a hearing. 32. During the hearings the applicant stated that he possessed a comfortable flat in a safe and ecologically clean neighbourhood, with parks and schools in the vicinity. Before the applicant’s separation from his former wife, A. had attended a nursery school in that neighbourhood. The applicant also had a countryside residence. Being the owner of his own business, he had flexible working hours and could therefore devote a lot of time to his son. He had always paid child maintenance and his income permitted him to give the child a good education. There was a strong personal attachment between the applicant and his son; A. was also very attached to his paternal family – especially his cousin, who was of the same age. The applicant had positive character references: he was calm, polite and affectionate towards his son. By contrast, Ch. was aggressive and irresponsible. She had physically assaulted him in front of A. and had been criminally convicted in connection with that incident. She had also been convicted of the administrative offence of leaving the scene of a road accident and had had her driving licence suspended for a year. As could be seen from the documents submitted by the applicant to the court, she lived in a severely polluted and criminally unsafe neighbourhood in the vicinity of an oil refinery plant and a prison. Moreover, Ch. shared her flat with her mother, who smoked and abused alcohol and could therefore have a bad influence on A. Until recently, Ch. had prevented the applicant and his relatives from seeing A., and currently she allowed occasional contact only. 33. The applicant’s mother and sister stated that Ch. prevented them from seeing A. Ch. was often aggressive and occasionally abused alcohol. All her family smoked, even in the child’s presence. A. was very attached to his father and obviously suffered from their forced separation. 34. Ch. stated that the applicant would have no time to take care of the child as he was managing a business, was following a distance-learning course at a university and had earlier stated his intention of building a countryside residence. Ch. had a higher education and was working. The alleged defects in her character and behaviour to which the applicant had referred had been confirmed by his relatives only. 35. A teacher from A.’s current nursery school stated that she had seen the applicant once and that he had made a bad impression on her. On 30 April 2010 he had come to the nursery school and had told her that he wanted to take A. home with him. When she had refused to let him in, referring to the court order prohibiting any contact between them, he had become agitated and had talked about taking A. away with him when the children went out for a walk. 36. The director of the nursery school gave a similar description of the incident. She said that the applicant had become angry when he had learned of the court decision ordering the interim measure, had asked for a copy of that measure and had called his lawyer. 37. The following documents were submitted by the parties for the court’s examination: (i)  the applicant’s and Ch.’s pay statements, (ii)  documents showing that the district where Ch. lived was among the most polluted districts of Moscow, (iii)  documents from the criminal case file against Ch., and (iv)  documents relating to A.’s medical history and A.’s pre-school education both at the applicant’s place of residence prior to his parents’ separation and at the mother’s place of residence after the separation. 38. On 12 April 2011 the Timiryazevskiy District Court granted Ch.’s application for a residence order in her favour and dismissed a similar application by the applicant. It held as follows:
“Having examined the entirety of the evidence, the court finds that there is a very serious conflict between the parties as regards the child’s residence arrangements, ... which has a negative impact on the child by creating a psychologically unhealthy and tense atmosphere around him. At the same time, each parent, taken alone, possesses moral, personal and other qualities rendering each of them capable of raising a small child. According to the expert report, the child is equally attached to both of them. It also follows from the expert report that the parents’ improper behaviour towards each other may have negative psychological consequences for the child. The court notes that [Ch.’s] criminal conviction for assaulting [the applicant] has not yet acquired binding force. It however takes into account the criminal charges brought against her. It is clear that the incident was prompted by the personal hostility [between the applicant and Ch.] caused by a disagreement on the issue of their son’s residence and education. In the court’s opinion, these charges cannot constitute a decisive reason for making a residence order in favour of the father. There is an accumulation of reasons on the basis of which the court considers that the child should live with the mother. In the present case the court is guided by the best interests of child [A.], who at the moment of the judgment has not yet reached the age of four years old and who has an established way of life. For a long time the child has lived with his mother at her place of residence and has attended a nursery school there. Given his age, a change of residence and a separation from the mother will have a negative impact on the child’s general and psychological state. The court considers that [the applicant’s] arguments that the district where [Ch.] lives is polluted and that close members of her family smoke cannot serve as a basis for making a residence order in favour of the father because, as mentioned above, a change of residence will have a negative impact on the child. [The applicant’s] arguments that he has better living conditions and a better financial situation than [Ch.] are not decisive for granting a residence order to the father either. The childcare authorities are unanimous that it is in [A.’s] interests to live with the mother. The court agrees with that finding. The court also finds that [the applicant’s] request for a residence order is at the moment premature. [The applicant] is entitled to apply for a reconsideration of the issue after A. has reached a more conscious age [по достижению сыном более сознательного возраста].”
39. The applicant appealed, repeating the arguments he had raised before the District Court. He relied, in particular, on the right to equality between spouses. 40. On 30 June 2011 the Moscow City Court upheld the judgment of 12 April 2011 on appeal, finding that it had been lawful, well-reasoned and justified. 41. On 6 December 2011 the Lyublinskiy District Court of Moscow found it established that Ch. was preventing the applicant and his family –namely his mother, brother and sister – from seeing A. It held that A. was entitled to maintain contact with his father and his paternal family and determined the contact schedule as follows. The applicant should be able to have contact with A. (i)  on the first and third weekend of each month from 10 a.m. on Saturday until 8 p.m. on Sunday at the applicant’s place of residence, in the mother’s absence and with the right to attend outdoor activities for children, and (ii)  for two weeks during the summer and two weeks during the winter on dates agreed with the mother, provided that the child is in good health, with the right to leave Moscow and to go abroad. The applicant’s mother, brother and sister should be able to have contact sessions with A. from 11 a.m. until 1 p.m. on the first and third Saturdays of each month at the applicant’s place of residence. 42. On an unspecified date the Moscow City Court upheld that judgment on appeal. 43. On 2 February 2012 the Mytischy Town Court upheld Ch.’s conviction for assault and battery on appeal. II. RELEVANT DOMESTIC LAW
44. The Family Code provides that in the event of the parents’ separation, a child’s residence arrangements shall be determined by an agreement between them. If no such agreement can be reached, the child’s residence arrangements are determined by a court order, having regard to the child’s best interests and his/her opinion on the matter. In particular, the court must take into account the child’s attachment towards each of the parents and siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation) (Article 65). 45. 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 parents may reach a written agreement about the manner of exercise of parental authority by the parent residing separately from the child. If the parents are unable to come to an agreement, any dispute between them shall be decided by a court after an application by the parents (or one of the parents), with the participation of the childcare authorities. If one of the parents does not comply with the court decision, measures provided by the civil procedural law may be taken against him or her. If that parent systematically refuses to comply with the court decision, a court may, after an application by the parent residing separately from the child, transfer the child’s residence to that parent, taking into account the child’s interests and the child’s opinion (Article 66, as in force at the material time). 46. A child is entitled to maintain contact with his parents, grandparents, brothers, sisters and other relatives. The parents’ divorce or separation or the annulment of their marriage shall have no bearing on the child’s rights. In particular, in the event of the parents residing separately, the child is entitled to maintain contact with both of them (Article 55 § 1). 47. A child is entitled to express his opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests (Article 57). 48. The 2002 Code of Civil Procedure (hereafter “the CCP”), as in force at the material time, provided that a judge might apply interim measures at the request of participants in the proceedings. Interim measures might be applied in a case where the failure to take such measures might complicate or make impossible the execution of the forthcoming judgment (Article 139). 49. Possible interim measures might include a prohibition on undertaking specific actions (Article 140 § 1). Interim measures had to be proportionate to the claim in question (Article 140 § 3 of the CCP)
50. A request for interim measures had to be examined on the day of its receipt by the court, without notifying the respondent or other participants to the proceedings (Article 141 of the CCrP). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
51. The applicant complained that the granting of a residence order in respect of his son in favour of the boy’s mother and the interim measure prohibiting him from contacting his son pending the residence order proceedings had violated his right to respect for his family life. He relied on Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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
52. The Government submitted that the complaint about the interim measure fell outside the Court’s competence ratione materiae. They referred to the decision in the case of B.R. v. Poland ((dec.), no. 43316/98, 7 June 2001), in which the Court had found that interlocutory proceedings relating to an interim measure concerning the provisional regulation of the applicant’s contacts with his daughter pending the main divorce proceedings did not involve the determination of the applicant’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. 53. The Court reiterates that mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention (see, among many others, S.I. v. Slovenia, no. 45082/05, § 68, 13 October 2011, and Gobec v. Slovenia, no. 7233/04, § 128, 3 October 2013, which both concerned interim decisions setting out provisional contact arrangements). It therefore considers that Article 8 was applicable to the interim order proceedings concerning contact between the applicant and his son. The respondent Government’s objection ratione materiae is accordingly dismissed. 54. The Court further notes that it is not open to it to set aside the application of the six-month rule solely because a Government have not made a preliminary objection to that effect (see Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006‑III). Therefore, the fact that the Government did not raise any alleged failure by the applicant to comply with the six-month rule does not prevent the Court from ruling on the issue (see Fábián v. Hungary [GC], no. 78117/13, § 90, ECHR 2017 (extracts). The Court will therefore examine whether the applicant’s complaint relating to the interim measure complied with the six-month rule even though the Government did not raise an objection as to non-compliance with the six‑month rule. 55. The Court notes that the interim measure was quashed on appeal on 8 February 2011 and that the interim measure proceedings were finally discontinued on 1 April 2011. The applicant lodged his application with the Court on 9 December 2011, that is to say more than six months later. The Court considers that, with regard to the interim measure, the applicant did not comply with the six-month time-limit. It follows that this complaint has been introduced out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention. 56. The Court furthermore notes that the complaint about the residence order is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. Submissions by the parties
(a)  The applicant
57. The applicant submitted that the domestic courts had granted a residence order in favour of his ex-wife despite the fact, confirmed by the evidence examined at the hearing, that she had a lower income, lived in a polluted and criminally unsafe district and had bad character references. In particular, she had been convicted of a criminal offence for assaulting the applicant; the assault had happened in front of the child. She had, moreover, prevented the applicant from seeing his son for many months. Her mother, who lived together with her, smoked and abused alcohol, as confirmed by witnesses, who had been warned about criminal liability in the event of perjury. It was also significant that, as confirmed by the documents produced at the hearing, the applicant had flexible working hours and could therefore devote more time to A. than the boy’s mother, who had no flexibility in her working hours. By disregarding those factors, the domestic courts had taken a decision which had not been based on the best interests of the child. The applicant claimed that the sole reason for granting a residence order in favour of the mother had been the judge’s belief, evident from her statements at the hearings, that a small child should be raised by the mother rather than by the father. 58. The applicant also argued that the possibility, which the domestic courts referred to, of reconsidering the residence arrangements after the child had reached “a more conscious age” was illusory. Given that the child’s continuing residence with the mother had been one of the main reasons invoked by the domestic courts for their decision to grant the residence order in favour of the mother, that reason would only get stronger with the passage of time. 59. Lastly, the applicant submitted that the total length of the residence order proceedings had been excessive. The proceedings had lasted for one year and eight months. The applicant had in no way contributed to their length. By lodging motions and by appealing against some procedural decisions, he had exercised his procedural rights with the aim of effectively presenting his case and ensuring its fair and thorough examination. As regards his request for the proceedings to be suspended pending the criminal proceedings against A.’s mother, he considered that the outcome of the criminal proceedings had been relevant to the issue of A.’s residence. (b)  The Government
60. The Government accepted that granting a residence order in favour of the mother in respect of the applicant’s son had constituted an interference with his right to respect for his family life. However, the interference had been lawful, had pursued a legitimate aim and had been necessary in a democratic society. 61. As regards the length of the residence order proceedings, the Government submitted that the proceedings had lasted for about one year and two months. There had been no periods of inactivity attributable to the authorities. By contrast, the applicant had contributed to the length of the proceedings by lodging his claim with the wrong court, by lodging appeals against various procedural decisions and by requesting a suspension of the proceedings pending the criminal proceedings against his wife. In total, the length of the proceedings had been shorter than in the cases examined by the Court (they referred to Ribić v. Croatia, no. 27148/12, 2 April 2015, where the proceedings had lasted for seven years and eight months; Mihailova v. Bulgaria, no.  35978/02, 12 January 2006, where the proceedings had lasted for about two years and a half and where the Court had found no violation of Article 8; Ahrens v. Germany, no. 45071/09, 22 March 2012, where the proceedings had lasted for three years and seven months and where the Court had not found a violation of Article 8 either; and Diamante and Pelliccioni v. San Marino, no. 32250/08, 27 September 2011, where the proceedings had lasted for three years). Moreover, the present case was different from Ribić, where the applicant had seen his son for three times only during the proceedings, by the end of which he had reached the age of majority. In the applicant’s case the proceedings had ended when the child was three years and eight months old; it could not therefore be said that the passage of time had resulted in a de facto determination of the matter. 62. Lastly, as regards the decision to grant the residence order in favour of the mother, the Government submitted that it had been lawful and had been based on the best interests of the child. As the parents had been unable to agree about the child’s residence arrangements, the domestic courts had had no choice but to grant the residence order in favour of one or other of them. The judge had ordered an expert psychological report and had also taken into account the opinion of the relevant childcare authorities. The judge had also examined the parents’ income, living conditions and working schedule. The applicant had not proved that his financial situation had been better than that of his ex-wife or that his working schedule had been indeed flexible. His arguments regarding his superior living conditions (because he lived in a less polluted district of Moscow than his ex-wife) were unconvincing as, in the Government’s opinion, all districts in Moscow were equally polluted. The applicant’s and his ex-wife’s flats were comparable in size and were both suitable for a small child. The applicant’s allegations regarding the dissolute behaviour of his ex-wife’s family had been confirmed only by the applicant’s mother and sister, who were witnesses with an interest in the proceedings. By contrast, the applicant’s unsatisfactory behaviour towards the teacher at A.’s nursery school had been confirmed by independent witnesses. The Government further submitted that in 2014 and 2015 the applicant had been fined for traffic offences several times. As regards his ex-wife’s criminal conviction, which had not been final at the time, the judge had considered that it could not constitute a decisive reason for granting a residence order in favour of the applicant. The judge’s decision not to wait until the conviction became final had been justified by the need to settle the child’s residence arrangements as quickly as possible. The applicant’s allegations that the judges had been biased against him were unfounded. The judge had found that each of the parents had been capable of taking care of the child and that the child had been equally attached to both of them. The main reasons for granting the residence order in favour of the mother had been the child’s extremely young age – three years – and the fact that he had already lived with his mother for some time and had an established way of life. A change in that way of life and a separation from the mother could be traumatic for him. The applicant’s procedural rights had been respected. 63. The Government further submitted that the decision to grant the residence order in favour of the mother had not restricted the applicant’s parental authority or his right to participate in the child’s upbringing and education. As mentioned by the domestic courts, he was entitled to apply for a reconsideration of the residence arrangements after the child had reached a “more conscious age”; in particular, the child’s opinion had to be taken into account after the child had reached the age of ten years old. The applicant and his family had been granted contact rights by a judicial order. Russian law provided for a mechanism to deal with situations where a judicial contact order had not been complied with (see paragraph 45 above). There was, however, no evidence that the applicant’s wife had not complied with the judicial contact order. According to the statement that she had given in July 2015, her relationship with the applicant had improved and contact between A. and his father and his paternal family had been even more frequent than that ordered by the court. The domestic authorities had therefore taken all reasonable measures to ensure that he could maintain his relationship with his son. 2. The Court’s assessment
(a)  General principles
64. In determining whether the refusal of custody or access was justified under Article 8 § 2 of the Convention, the Court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient. Undoubtedly, consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the Court’s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding child custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003‑VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62, ECHR 2003‑VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006; and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the child (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk v. Russia, no. 47721/10, § 134, 1 August 2013). 65. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. Thus, the Court has recognised that the authorities enjoy a wide margin of appreciation, in particular when deciding on custody. However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Sahin, cited above, § 65, and Sommerfeld, cited above, § 63). 66. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child’s health and development (see Sahin, cited above, § 66, and Sommerfeld, cited above, § 64). 67. The Court cannot satisfactorily assess whether the reasons advanced by the domestic courts were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision-making process, seen as a whole, was fair (see Sahin, cited above, § 68, and Sommerfeld, cited above, § 66). While Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8.

Article of the Convention at issue: Article 8
Outcome: no_violation