By Corina Heri, PhD candidate at the University of Zürich / Visiting Scholar at Ghent University
In Kocherov and Sergeyeva v. Russia, a Chamber judgment issued on 29 March 2016, the ECtHR held that the restriction of a mentally disabled father’s parental authority had violated his rights under Article 8 ECHR (the right to respect for private and family life). In the past, the ECtHR has found violations of Article 8 ECHR where the domestic authorities failed to provide sufficient reasons for measures withdrawing parental care or contact rights from disabled parents (compare Olsson v. Sweden (No. 1), Kutzner v. Germany, and Saviny v. Ukraine). One of the most interesting aspects of the Kocherov and Sergeyeva case, however, concerns another provision, namely the prohibition of discrimination in Article 14 ECHR. The complaint made in this regard concerned the fact that Mr. Kocherov was considered an unfit parent based on stereotyped assumptions about parents with mental disabilities, contrary to the evidence about his actual ability to care for a child. The fact that the majority did not find it necessary to examine this complaint represents a missed opportunity to confront stereotyping head-on.
The Facts of the Case
The first applicant in Kocherov and Sergeyeva suffers from a mild mental disability and lived in a care home until 2012. In 2007 he had a daughter, the second applicant, with another resident of the home. The child was placed in a children’s care home shortly after her birth. In 2011, after the first applicant obtained an apartment for himself and his daughter, the children’s home applied for a restriction of his parental authority, arguing that living with her father would be both dangerous and stressful for the second applicant.
During the resulting domestic proceedings, the first applicant submitted an expert report concerning his psychiatric condition that described him as a “fully focused, sociable person with reduced intelligence” and declared him able to fully exercise his parental authority. A second report concluded that the living conditions in his apartment were appropriate for a child. Nonetheless, the domestic court of first instance considered it “undesirable” to allow the first applicant to take his daughter into his care, as this would not be in the child’s best interests. Living with her parents after such a long separation, the court held, would be stressful for the girl; her father had no skills and experience in child-rearing, suffered a mental disability, and had not proven that it would be safe for her to live with him. As a result, the domestic court restricted the first applicant’s parental authority. The appellate court rejected his appeal, arguing that it had not been proven that there would be no risk to the second applicant in his care.
The Court’s Judgment in Short
The ECtHR acknowledged that there had been an interference with the applicants’ family life falling under the ambit of Article 8 ECHR. To determine the necessity of the interference, the Court examined each of the domestic instances’ arguments individually. The Court held that the domestic authorities had ignored evidence in the applicants’ favor and simply relied on the first applicant’s institutionalization and the view of the children’s home despite the absence of any evidence of a risk to the child. Rejecting each of the arguments of the domestic authorities as non-decisive or incomplete, the Court found a violation of Article 8 ECHR.
The applicants also alleged a violation of the prohibition of discrimination in Article 14 taken together with Article 8 ECHR. They argued that the first applicant’s parental rights had been restricted because of prejudice against people with mental disabilities. The Court found that, given the finding of a violation of Article 8 and the fact that a “clear inequality of treatment” was not a “fundamental aspect of the case” (§ 124), it was not necessary to examine this submission.
The Dissenting Opinion by Judge Keller
In her separate opinion, Judge Keller disagreed with the majority’s finding that it was not necessary to examine the Article 14 complaint. She argued that the discrimination element was in fact a “fundamental aspect of the case” given that the domestic authorities’ reasoning was based on a stereotyped view of mentally disabled persons as parents (§ 3 of the separate opinion). She argued that “the authorities based their conclusions on generalised ideas about disabled parents, rather than on the first applicant’s actual ability to care for his child or the concrete facts of the case” (§ 7) and that the domestic rulings revealed a stereotyped, essentialized view of vulnerable disabled parents (§ 9). The fact that the first applicant’s complaints about the loss of his parental rights had been heard under Article 8, Judge Keller argued, did not adequately address the discriminatory nature of that measure – namely, the fact that it had been imposed because of his disability (§§ 11 and 13).
Comment: Vulnerability and the Need to Confront Stereotyping
The first applicant provided uncontested evidence of his ability to care and provide for his daughter, his affection for her and the safety of his home for receiving a child. Nonetheless, the very fact of his disability was apparently the deciding factor for the domestic authorities. While it is certainly not out of the question that parents with intellectual disabilities, or any parents for that matter, may neglect or abuse a child, the idea that intellectually disabled people make poor parents as a rule contains a blanket generalization about this group as such, and needs further examination. In this context, and in agreement with Judge Keller, it becomes difficult to understand why a “clear inequality of treatment” was not a “fundamental aspect of the case” (§ 124 of the judgment), and why the Court consequently failed to examine the Article 14 complaint.
To begin with, it must be noted that persons living with disabilities are, according to the Court’s case-law, a vulnerable group that has suffered severe stigmatization and discrimination in the course of history (compare Alajos Kiss v. Hungary, §§ 42 and 44, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania, § 108). These individuals do not fit the liberal archetype of the invulnerable, rational legal subject, and therefore easily become “other”. As a result, the reproductive and parental rights of persons with cognitive disabilities have frequently been curtailed in the past, be it for eugenic reasons, because such measures were considered to be in their own best interests or in the best interests of their children, or perhaps simply because of a “yuck-factor”.
Reliance on vulnerability before and by the Court has proliferated in recent years, and the concept certainly has its problems. Nonetheless, vulnerability reasoning provides an avenue for engaging with the susceptibility of disabled persons to discrimination and stigmatization. Such engagement makes plain that, to avoid stereotyped reasoning, parental adequacy must be judged not by the fact that a parent belongs to the class of persons with a mental disability, but by the actual performance of individual disabled parents on a case-by-case basis. In the Court’s own words, “the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny” (Alajos Kiss v. Hungary, §§ 42 and 44). In this regard, States have a narrow margin of appreciation not only because, as the Court held here, parental rights are concerned, but also because the rights of vulnerable individuals are at stake (Alajos Kiss v. Hungary, § 42; Novruk and Others v. Russia, § 100).
While the law, on some level, depends on the use of generalizations, stereotypes and discrimination are locked in a self-sustaining cycle. For one, reliance on stereotypes makes the authorities less likely to “see” evidence in an applicant’s favor. It is thus important to address incorrect assumptions such as the idea that a cognitive disability is per se incompatible with successful parenting, which reduces disabled persons to their disability and emphasizes their perceived otherness. Tackling such assumptions and dismantling ableist stereotyping requires, first and foremost, that stereotypes be identified as such, and the Court can have an important guiding function in this regard. For these reasons, it is most unfortunate that the majority chose not to examine the applicants’ Article 14 complaint in this case.
 On othering, see mutatis mutandis Todres Jonathan, ‘Law, Otherness and Human Trafficking’, 49 Santa Clara Law Review (2009), 605-672. On the vulnerable subject, see, instead of many, Martha Albertson Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’, 20 Yale Journal of Law and Feminism (2008), 1-23; Lourdes Peroni and Alexandra Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’, 11 International Journal of Constitutional Law (2013), 1056-1085.
 On why repugnance is not a tenable basis for moral or legal judgment, see Nussbaum Martha Craven, Hiding from Humanity: Disgust, Shame, and the Law (Princeton University Press 2004), 92-93; 305-318.
 Peroni Lourdes and Timmer Alexandra, cited above, 1073-1074.
 Timmer Alexandra, ‘Judging Stereotypes: What the European Court of Human Rights Can Borrow from American and Canadian Equal Protection Law’, 63 American Journal of Comparative Law (2015), 239-284, 284.
 McConnell David and Llewellyn Gwynnyth, ‘Stereotypes, parents with intellectual disability and child protection’, 24(3) Journal of Social Welfare and Family Law (2002), 297-317, at 303-308.
 See Timmer Alexandra, cited above, on the Court’s role in this regard.