By Nadia Rusinova, attorney-at-law and lecturer in International private law at the Hague University
On 30 June 2020 the European Court of Human Rights (hereinafter: The Court) delivered its judgment on the case Ilya Lyapin v. Russia. The case addresses the divestment of parental rights from a biological father due to his inaction in exercising his parental responsibilities. This inaction led to a voluntary and prolonged separation from the child, already well integrated into mother’s new family from an early age, and subsequently served as a main reason for the domestic court to fully deprive the father from his parental rights and duties. What is striking – and will be discussed in this post – is the obvious and already acknowledged inflexibility of the Russian laws, the lack of proportionality when taking such drastic measures, and the inconsistent conclusion of the Court that the mere passive behaviour of the father appears to be enough to strip him of all his parental authority and to pose absolute restrictions in the restoration of contact with his son.
The applicant in this case is Mr. Ilya Lyapin, a Russian national. In 2003 he divorced the mother of his child when the child was two years of age. In 2005 his former wife remarried and lives with her new husband and the child, as well as another child that the new couple had together. In 2011, when the child was already 10 years old, the mother instituted civil proceedings against Mr, Lyapin, seeking to have him divested of his parental authority over their son. In her court claim, she argued that since birth, the applicant had neither participated in his upbringing, nor supported him financially; in fact, he had lived separately from her and the child. Since 2004, she and the child had been living as a family with her new husband, whom the child regarded as his father, even though he knew that it was Mr. Lyapin who was his biological father. The stepfather intended to adopt the child in the near future.
In response Mr. Lyapin lodged a counterclaim. He objected to the mother’s claim, stating that he loved his son and wished to participate in his upbringing. He stated that he had accepted the fact that after the divorce the boy would remain with his mother, as he had been persuaded that such arrangement had been in the child’s best interests. He therefore requested that the court grant him access to his son and establish his right to see him once a fortnight, and to spend his annual leave with him.
During the court proceedings, an expert assessment of the child-parent relationship had been requested by the court. In the interview the psychologists stated that the child did not remember his father and did not want to have contact with him as he had feared that the applicant might kidnap him. In addition, witnesses stated that Mr, Lyapin never showed interest in the child and the child did not regard him as a father. The District Court upheld that the boy perceived a third person, his stepfather, as his only father. According to the domestic court, these facts showed that the applicant had willfully neglected his parental duties with respect to his son and it was in the child’s best interests to deprive the applicant of his parental authority over his son and leave the boy under the full custody of his mother. It thus granted the mother’s claim against the applicant in full, and rejected the applicant’s counterclaim. The subsequent appeals endorsed this judgment and in early 2012, six month later, the child was adopted by his stepfather.
The Court found that there is no violation of Article 8 of the Convention: the domestic courts had carried out a detailed and carefully balanced assessment of the entire situation and the needs of the child, in the light of the adduced evidence. They had thoroughly considered the pertinent facts and given due consideration to the child’s best interests. Taking into account the fact that the domestic courts had had the benefit of contact with all those concerned, they had provided ‘relevant and sufficient’ reasons for their decisions.
In para 54, the Court reveals the main reason for this outcome:
‘That as it may, the Court considers that it was the applicant’s own inaction that led to the severance of ties between him and his son, and thus seemed to prompt the outcome of the case against him…It is clear that the removal of the applicant’s parental authority did no more than cancel the legal link between the applicant and his son. Given the absence of any personal relations for a period of seven years prior to that decision, it cannot be said to have adversely affected those relations’.
The separate dissenting opinions of Judge Serghides and Judge Schembri Orland, for substantially different reasons, argue that there is a violation of the right to respect for family life under Article 8 of the Convention. Judge Schembri Orland emphasises the inflexibility and harshness of the Russian family law system which does not give discretion to domestic courts to make a decision allowing one parent to participate in some aspect(s) of the upbringing of the child while leaving the other parent with a more prominent role. Whereas, Judge Serghides points to the one-sided assessment of the parent-child relationship, conducted exclusively with a 10-year old boy who had not seen his father for the past eight years.
This case is interesting as it once again raises two fundamental issues: first, the inextricable connection of parental rights with parental responsibilities, and second the fact that deprivation of parental rights is an extreme measure that must be preceded by certain intermediate steps to preserve the relationship between parents and children.
Regarding the connection of parental rights with parental responsibilities, one cannot fail to note that the communication of the child with the father in this particular situation, based on the circumstances of the case, was prevented not by the mother or her new husband and not even by the imperfect Russian law. The reason is the father’s consistent inaction. This inaction is visible by the lack of fulfillment of parental duties directly entrusted to him from the birth of the child. From this perspective, the extreme measure – removal of parental rights – applied in this case could also be considered necessary. Particularly as it was precisely this removal which made it possible to fully formalize the child’s relationship with his stepfather, who actually exercised parental rights and performed parental duties during all this time.
On the assessment that must take place prior to deprivation of parental rights, a judgment like in the case of Ilya Lyapin for Russian judicial case law is quite rare. Courts usually do not deprive parents of their rights, even when there are more serious reasons than the passive behavior of the father and his absence in the life of the child. Pursuant to the Russian Family Code and the Supreme Court of Russia case law, parents could be deprived of their parental authority if they deliberately avoided their parental obligations, and that deprivation of parents’ parental authority is a measure of last resort applicable only in a situation where it is impossible to protect a child’s rights and interests in another way.
Thus, the approach of the Court raises arguments in a few directions. Some of them are discussed as well in the dissenting opinions, which sound indeed reasonable and look at the case in much more comprehensive way than the judgment itself.
First of all, the main motive for applying such an extreme measure to Ilya Lyapin is his indirect consent to this. Obviously, the mere fact that he was not actively opposing the integration of his child into the new family of the mother and the adoption by her husband brought extremely negative consequences to him. By endorsing Russian judicial acts, the Court blamed the applicant for his passive behavior, but many issues that need careful assessment surprisingly remain beyond the bounds of the court’s assessment. Potential manipulation of the child’s opinion by the mother, the absence of a claim for child support throughout the entire period of separation, the child’s knowledge of the biological father, and the absence of any harm or danger to the child are issues that would otherwise be considered as circumstances requiring careful analysis. As Judge Schembri Orland convincingly points out, the situation required further evaluation as the outcome is reliant solely on the child’s declarations. In its previous case law, the Court held that effective respect for family life requires that future relations between parent and child be determined in the light of all relevant considerations and not by the mere passage of time. But in the case of Lyapin, these factors have been largely overlooked due to the opinion expressed by the applicant and his passive behavior.
The strong view that the parents should be proactive in seeking their rights has become a constant with the recent case law of the Court. Less than two months ago in Uzbyakov v Russia, discussed here, the efforts of the father to have his paternity in respect of all his five children established in law and to take them all into his care has been assessed as ‘demonstrable interest in and commitment to his children’. Apparently, this proactive behavior even assessed solely and not in relation with the other relevant facts, becomes decisive and unlike in Lyapin, in this case the reunification between biological father and children is seen as a priority and fundamental principle.
Second, the Court continues to uphold its much-criticized approach seen in Fröhlich v. Germany, discussed here. Similarly, no violation of Article 8 in this case was found. In Frohlich, the Court had to assess the best interest of the six-year-old child who was confronted with a paternity issue, and how domestic courts should balance competing interests of the mother, her new husband, the child and the biological father. Like in the present case, the interests of the mother and the stepfather override and the biological father is left behind, with no possibilities of any contact rights or information, which are dependent on the existence of legal paternity. In Lyapin, the lack of balance in weighing these interests strike in the same way and the preservation of the new family seems to appear more important than the strengthening of ties between a father and a child. As correctly pointed by Judge Serghidis in his dissenting opinion, the domestic courts did not take into account the child’s best interests in terms of having contact with his father or the applicant’s right to respect for his family life. What the domestic courts seem only to have taken into account was the wish of the mother and her new husband to legally alienate the child from his biological father. Furthermore, the child could have been manipulated by their mother and step-father to make certain statements damaging to the applicant in the domestic courts.
As it happened in Fröhlich, the opinion of a minor child appears decisive in the present case. Naturally, the child’s opinion should be taken into account in determining the existence, order and duration of such communication, but the additional circumstances and the irreversible consequences should also be considered.
Third, the rejection of counterclaims on the procedure for granting personal contacts between biological father and a child, before but also after the adoption, once again demonstrates the inflexibility of the Russian family law established in Nazarenko v. Russia. The respect for family life requires that biological and social reality prevail over the legal presumption of paternity. Accordingly, by analogy, the existence of legal paternity of a new husband should not be considered as diminishing the very possibility of renewing family ties between the child and the biological father in the absence of harm from such communication. Such intention, albeit belatedly, to renew communication should be welcomed. In addition, the lack of legal opportunity in the Russian law for a biological parent to restore parental rights in relation to an already adopted child, together with the absence of a legal instrument to communicate with the child, needs careful consideration. The result of this severe interference might well constitute a violation of Lyapin’s right to an effective remedy next to the violation of the right of family life.
Fourth, it must be noted that the Court did not assess the best interest of the child in this judgment at all, only referring to the well-known principle that the domestic courts are in better standing to do that assessment. However, the mere presence of such assessment during the domestic procedures seem to not always be enough. In this sense the Court should have at least expressed its opinion if it finds the best interest assessment adequate according to the facts of the case, instead of only looking for the presence of it.
Perhaps the conclusion of the Court could have been changed if the focus were shifted from satisfying basic requirements to the absolute rejection of the visitation rights counterclaim, the principle of effectiveness in assessing the child’s best interest, and the principle of proportionality when divesting parents of their parental authority. Indeed, it may be in the child’s best interests for a parent to be stripped of some of these rights and obligations, such as everyday childcare, while also being able to participate in other aspects of the child’s upbringing. In this case the Court overlooked one very important issue – the Russian law in Art. 72 of the Russian Family Code provides for a subsequent amendment according to potential further developments and for restoration of parental responsibility, but this option became unavailable for Mr. Lyapin because full adoption was granted to the step father only six months after the final decision, thus divesting him of parental authority. The adoption procedure is not subject to review by the Court, and the irreversible nature of the situation remains out of the Courts assessment.
It is too late for Ilya Lyapin to take further steps – at the time when this judgment is issued the boy is already at the age of 19, but the clearly acknowledged inflexibility of the Russian family laws may indeed call for some amendments in order to make the decision-making process fairer and to ensure due respect for the interests safeguarded by Article 8.