June 11, 2020
By Alice Margaria (Research Fellow, Department of ‘Law & Anthropology’, Max Planck Institute for Social Anthropology)
Fathers who want to be or remain involved in their children’s lives have become frequent applicants before the ECtHR. Underlying many of their complaints are national measures reflecting a ‘conventional’ understanding of fatherhood, where paternal care is attached scant or no relevance. Such understanding lay also at the roots of the decisions of Russian courts to reject Mr Uzbyakov’s attempts to be reunited with his youngest daughter who had been adopted by third parties, after her mother’s death. In dealing with the resulting application under Article 8, the ECtHR brings its contribution to ongoing conversations on what makes someone a (legal) father. Next to biology and the nature of the father-mother relationship, ‘new’ elements are attached weight in the Court’s reasoning: in particular, Mr Uzbyakov’s actual behaviour towards his children and his promptness in bringing legal actions in view of having his daughter returned. This judgment (4 May 2020) offers therefore a clear illustration of the (re)construction of fatherhood that is quietly taking place within the Court’s jurisprudence under Article 8 (alone or in conjunction with Article 14).
Mr Uzbyakov, originally from Uzbekistan, had five children with her partner Ms O.M. The youngest, D., whose fate is at stake in this case, was born in 2009. They all lived together but, as the applicant had no valid residence permit at the material time, he was not registered as the father on the birth certificates of his children. In January 2011, the applicant was arrested on suspicion of having committed theft, and placed in pre-trial detention until 20 April 2020. During that period, Ms O.M. died, and the children were taken into public care. Whilst the four elder ones eventually started living with their aunt, D. was placed with prospective adoptive parents (Ms N.S. and Mr S.S.). Whilst still in detention, the applicant had learnt about his partner’s death and had taken legal steps to have his paternity recognised before the Morshanskiy District Court. However, his claim was returned because of lack of territorial jurisdiction and other missing formal requirements. Few months after, the same court granted Ms N.S. and Mr S.S. a full adoption order in respect of D.
In the meantime, the father had resubmitted his paternity claim before the territorially competent Kamenka Town Court which, in April 2012, declared him the father of his four elder children, who returned to live with him. Only at that moment, in separate proceedings concerning D., the applicant discovered that she had been adopted. He therefore supplemented his paternity claim with the request to revoke the adoption order. In spite of acknowledging that the applicant was D.’s biological father, the Penza Regional Court held that recognising his paternity would make no sense in the absence of formal grounds to revoke the adoption order. The adoption was confirmed to be in D.’s best interests. It was noted that inter alia D. had been living with her adoptive parents for over a year and a half and had established close emotional links with them. Moreover, the couple had permanent jobs and proper living conditions and could therefore ensure the child’s development, compared to the applicant who was not officially employed. The Supreme Court of Russia dismissed the applicant’s further appeals in April and June 2013.
Before the ECtHR, Mr Uzbyakov complained that D.’s adoption without his consent, and the subsequent refusal to recognise his paternity and to revoke the adoption order constituted a violation of his right to respect for private and family life. The Court examined the complaint following its usual two-stage review. First, it established the applicability of Article 8. To this purpose, several circumstances were considered relevant (§ 80): first, the seventeen-year-long cohabitation between the applicant and Ms O.M., from which five children were born; second, the existence of a biological connection between him and his five children, including D.; third, their cohabitation and the applicant’s support and involvement in their care. In relation to D. more specifically, the Court also noted that the applicant had picked her and her mother up from the maternity ward and participated in her upbringing up until the moment he was arrested. It was therefore concluded that there existed a bond amounting to family life between the applicant and his daughter D., since her birth.
Having declared Article 8 applicable, the Court moved on to the second stage of review and approached the case from the perspective of positive obligations. Indeed, it clarified that the ‘decisive question’ to be settled is whether domestic authorities had taken all necessary and adequate steps to enable D. to lead a normal family life with her biological father and siblings (§ 107). Going through the national proceedings chronologically, the Court started by observing that, considering the lack of any father’s details on the birth certificates, it was not unreasonable for the authorities to consider the children abandoned. Hence, the initial taking into care was necessary to protect the children’s interests (§ 109).
The Strasbourg judges are, however, of a different view when it comes to the subsequent domestic rulings. As to the adoption proceedings, it was held that the Morshanskiy District Court had granted full adoption to third parties by relying on a ‘overly formalistic reasoning’ (§ 118). Rather than verifying that no viable alternative to adoption existed (§ 110), the Russian court had merely observed that no other parent was mentioned on D.’s birth certificate and that the prospective adopters satisfied the statutory requirements. This was considered particularly problematic because the childcare authorities had informed the Morshanskiy District Court that D. had four siblings who were living with their aunt. Moreover – so the Court continues – the applicant had shown his interest in and commitment to his children, including D. (§ 115) by taking legal steps to have his paternity legally recognised already while in detention. The Court also noted that the applicant was never informed about the adoption proceedings and, as a result, he was denied protection of his procedural rights and interests (§§ 177-118). Finally, given D.’s very young age and the resulting separation from her only surviving parent and siblings, the Court expressed strong doubts as to whether adoption by third parties was in D.’s best interests (§ 119). National authorities were therefore considered responsible for the adoption of D. by third parties, situation that the applicant then sought to remedy (§ 124).
The Court then turned its attention to the applicant’s paternity proceedings and request to revoke adoption, and identified further deficiencies on the part of domestic authorities. It was noted that, although relevant, the fact that D. had lived with the adoptive parents for a period of 18 months was not per se sufficient to exclude the possibility to reunite her with her biological family (§ 127). Connected to this, it was (once more) underlined that the applicant had started taking legal actions as promptly as possible (§ 128). According to the Court, domestic courts had also failed to explore solutions that – different from a sudden separation from the adoptive parents – would have gradually led to reuniting D. with her biological family (§ 129). Finally, it was held that the applicant’s allegedly insufficient income to support the child could not in itself be regarded as a sufficient ground for rejecting his claims. It was therefore concluded that national authorities had failed to carry out an in-depth examination of all relevant factors, thus breaching their Article 8’s positive obligation to aim to reunite ‘natural parents’ with their children (§ 131).
The legal issue at stake in Uzbyakov v Russia is far from new. Adoption without the biological father’s knowledge and consent has given rise to many previous applications before the Court (eg, Keegan v Ireland, Görgülü v Germany, K.A.B. v Spain). In such situations and, more broadly, when children are taken into care (see for instance Haddad v Spain previously commented on Strasbourg Observers), the Court has consistently held that measures which entail severing children’s ties with their families must only be applied in exceptional circumstances, and can only be justifed by the child’s best interests. States have accordingly been held responsible for taking all possible measures to facilitate the reunification of a child with natural parents. Another common feature of this jurisprudential strand is Article 8’s procedural dimension according to which parents must be able to participate in the proceedings related to the placement of their children. Against this backdrop, Uzbyakov cannot therefore be considered a landmark case since it does not solve a new legal issue nor establishes new legal principles. Nonetheless, this judgment is worthy of reflection because it provides a clear illustration of the Court’s participation in (re)defining who is a father.
As the above section ‘Judgment’ makes it clear, the Court’s reasoning is mostly concerned with emphasising the lack of diligence on the part of national authorities. This is – of course – the consequence of the Court’s task being that of reviewing the compatibility of domestic measures with Article 8, rather than identifying the best solution for D. itself. Nonetheless, the Court does enter substance at various points of the judgment and it does so by taking into consideration the applicant’s profile as a father. Some traits of Mr Ubzyakov are indeed relied on by the Court to further substantiate its findings as to the failure of Russian courts to undertake an in-depth investigation of all relevant factors and interests at stake. In so doing, the Court tells us something about its own understanding of fatherhood – i.e. what are fathers’ desirable features and attitudes towards their children.
Two elements of what I have previously termed ‘conventional fatherhood’ feature in the Court’s judgment. The first is the length and nature of the father’s relationship with the child’s mother which evokes an understanding of fatherhood as a mediated relationship. The Court reiterates the well-established notion that ‘family life’ includes also non-marriage-based relationships (§ 79). Nonetheless, when assessing whether the father-child tie at stake qualifies as ‘family life’, the Court seems to adopt parameters, such as stability and durability, that – although alternative to marriage – de facto pursue the (same) purpose of acting as child-father connectors. The second ‘conventional’ feature which appears quite often in Uzbyakov is biology. Apart from being another relevant factor in ascertaining the existence of family life (§ 80), the biological connection between the applicant and D. is also raised as a circumstance which national courts should have borne in mind when considering the father’s attempts to be reunited with his daughter (§ 129).
However, biology and the nature of the mother-father relationship are not all that matters for the Court. The reasoning does also place emphasis on Mr Uzbyakov’s genuine interest in D.’s life. Apart from noting that they had lived together and he had been involved in her upbringing until when he was arrested, the Court underlines that the applicant had not waited ‘unreasonably long’ before taking legal actions (§ 128). According to the Court, these circumstances were to be considered evidence of the applicant’s ability and continuing willingness to take care of his daughter. This goes hand in hand with another point made by the Court: the insufficiency of the applicant’s alleged financial difficulties to justify the refusal his claims. Far from new, the reiteration of such principle in a case concerning a father, like the case at hand, is particularly welcome because of the important message it sends: (the lack of) economic provision alone is not sufficient to (not) make someone a legal father.
Just like fathering practices are reported to be in transition by sociologists, the image of the father emerging from this judgment displays a mix of change and continuity. The existence of a biological link and the nature of the father-mother relationship retain some weight. Yet, fatherhood is also increasingly understood as a direct tie which develops around care and caring intentions – features which have been traditionally associated with maternal and/or female figures. This is a first, promising step towards de-gendering caring roles with benefits that go well beyond the rights of fathers.