Mother wins case after Chechen court grants father residence
By:1 commentApril 17, 2018
Following a European Court of Justice case yesterday, a European Court of Human Rights (ECHR) case today. And this is one that I think demonstrates well the usefulness of the ECHR, when the domestic courts get it all wrong.
The facts in Magomadova v Russia were both dramatic and tragic.
The case concerns a boy, ‘I’, who was born in Moscow in November 2009. His father was ‘E’, his mother’s partner. The family lived in the Russian capital.
I’s parents separated in November 2010. They agreed that I should remain with his mother in Moscow, and that E should visit him regularly.
On 22 October 2013 E took I to Grozny, in Chechnya. I’s mother followed them to Grozny, where she attempted to visit I, but was prevented from doing so by E.
On 18 February 2014 I’s mother applied to the court in Grozny for a residence order, under which I would live with her.
In April 2014 the court dismissed the application and, of its own motion, made a residence order in favour of E. The court made various findings, including that the mother’s ability to look after I was hindered by the fact that she also had a daughter by a previous marriage to care for; that because of her work the mother did not have enough time to devote to her children (E lived with his mother, who could look after I when E was at work); that I was more attached to his father than his mother; and that E had not hindered the mother’s contact with I.
The mother appealed. She submitted that she was perfectly capable of looking after I, her daughter actually being of great help to her; that the finding that she did not have enough time to take care of her children was not based on any evidence; that the court had not explained how, within such a short period of time, I could have become more attached to his father than his mother, with whom he had lived from birth until his recent abduction; and that E was preventing her from seeing I, a fact that had been confirmed by the childcare authorities’ representative at the hearing.
In July 2014 the Supreme Court of the Chechen Republic upheld the judgment on appeal, finding that it was “lawful, well-reasoned and justified.”
We then reach the crucial point in the case. By a letter of 12 September 2014, the head of the childcare authority of Grozny informed the mother that the childcare official who had reported to the Grozny court had been disciplined. An internal inquiry had established that the report was based on incorrect and incomplete information. For example, a finding that the mother had not participated in I’s upbringing was not based on any evidence; the length of time I had lived with each of the parents had not been established; and the fact that I had a half-sister living with his mother had not been taken into account. The report had therefore “violated the mother’s rights and legitimate interests.”
The mother lodged another appeal to the Supreme Court of the Chechen Republic, but this was also rejected.
On 5 December 2014 E died in a car accident. I continued to live with his paternal grandmother.
In January 2015 the mother applied to a court in Chechnya for an order that I be returned to her. The court granted the application in July 2015. I was not returned to the mother, and enforcement proceedings were taken. However, the bailiffs were not able to find I, as he and the grandmother had left home.
Finally, in April 2016 I was returned to the mother by the Police.
The mother made an application to the ECHR alleging, in particular, that the refusal of the Chechen courts to issue a residence order in her favour in respect of I had violated her right to respect for her family life, under Article 8 of the European Convention on Human Rights.
It will probably come as no surprise that the ECHR upheld the mother’s complaint. It found that the Chechen courts had failed to examine all of the factors that might have been relevant for determining the best interests of the child; that they had not assessed how long I had lived with each of the parents; that they had not examined in any detail the mother’s allegation that E had prevented her from having contact with I; and that they had “made no meaningful attempts to verify whether the report had been prepared after a thorough examination of the entire family situation and all relevant factors”.
Accordingly, there was a violation of Article 8, and the Russian state was required to pay damages of 12,500 Euros to the mother.
You can read the full report of the case here.
Photo of Grozny in Chechnya by Alexxx Malev under a Creative Commons licence
April 17, 2018
Categories: Children and divorce