November 12, 2021
By Dr. Ingrida Milkaite and dr. Pieter Cannoot
On 6 July 2021 the European Court of Human Rights rendered its highly anticipated judgment in the case of A.M. and Others v. Russia on the parental rights of a transgender person, in which the Human Rights Centre submitted a third party intervention (earlier blogpost summarising our main arguments can be accessed here). The Court unanimously found a violation of Article 8 of the Convention (ECHR), as well as a violation of Article 14 taken together with Article 8. The case concerned the restriction of the applicant’s – a trans woman’s – parental rights and deprivation of contact with her children on grounds of her gender identity. The application raised several interesting issues concerning the parental rights of parents undergoing a gender transition, the preservation of contact between children and their trans parent, the participation of children in proceedings before the ECtHR and the extent to which children’s rights are generally taken into account in such cases. In order to give due attention to both integral aspects of this case, a separate blogpost on the parental rights of transgender people has been published earlier this week while the present blogpost specifically focuses on the representation of children before the ECtHR as well as other children’s rights issues arising from this case.
The case concerns A.M., a Russian trans woman, who had originally married a cis woman, N., and had two children with her. The couple later divorced, and the applicant started her gender transition. At N.’s request, based on her insistence that A.M.’s gender transition had caused irreparable harm to the mental health and morals of the children, the national courts restricted A.M.’s parental rights and access to her children. At the time of submitting her observations to the Court (July 2020), she had not seen or communicated with her children for approximately three and a half years, and had been deprived of any opportunity to receive information about her children’s lives.
The applicant, on her own behalf – and on behalf of her children – complained under Article 8 ECHR that the restriction of her parental rights had not been necessary in a democratic society and, therefore, had violated their right to respect for family life.
The Court did find a violation of A.M.’s rights under Article 8, both on its own and taken in conjunction with Article 14. However, it limited its reasoning and findings to A.M. herself, and did not extend it to her children. It noted that, in cases arising out of disputes between parents, it is the parent entitled to custody who is entrusted with safeguarding the child’s interests. It held that, in these situations, the position as natural parent cannot be regarded as a sufficient basis to bring an application on behalf of a child. Having regard to its case-law on the matter and the specific circumstances of the present case, the Court concluded that the application insofar as it had been lodged on behalf of the children was inadmissible under Article 35 § 3 (a) and 4 of the Convention.
For a more thorough explanation of the facts and the judgment, we refer to the first blog post concerning this case.
Judges Ravarani (Luxembourg) and Elósegui (Spain) wrote a joint concurring opinion which particularly dealt with the question of how interested third parties, such as N. and the children in this case, can participate in proceedings before the ECtHR that originate from horizontal civil proceedings such as intra-family conflicts. Both judges worry that in those cases, including the case at hand, the Court lacks essential information enabling it to have a balanced view of the underlying facts of the case. While the Court criticised the domestic authorities for failing to conduct an in-depth examination of the entire family situation, the judges noted that the Court itself did not have a complete picture of the various interests at stake since it did not hear N. or the applicant’s children. Decisions by the ECtHR can lead to deprivations of rights previously acquired by third parties, or at least have very serious consequences in practice. According to the judges, the mechanism of third-party interventions must therefore be changed to limit the discretion that Chamber Presidents have in deciding to grant or decline interested individuals leave to intervene in pending cases.
Judge Elósegui wrote a second concurring opinion in which she heavily relied on the materials presented by the third parties. Beside her opinion that the Court should find a way to make sure that interested parties in civil proceedings are better represented before the ECtHR, the judge also shared what measures domestic authorities could undertake in complex custody cases that are less restrictive than a limitation of parental or contact rights. The third parties in their submissions also referred to the existence of other measures and good practices which could be used to assist the children whose parents underwent gender transition. While the Court did not find it appropriate to contemplate on the existence of less restrictive means or to endorse any of them, Judge Elósegui found that therapeutic measures such as counselling, family therapy and mediation are highly relevant and could be more efficient, especially in assisting families with a trans parent.
Despite this judgment’s positive impact on the rights of trans parents, some critical issues can be raised especially regarding the absence of any noteworthy position of the applicant’s children in the case. As noted by the concurring Judges, the issue of the representation of the children by the applicant in this case was in fact raised by the Court of its own motion. That is, the Russian government had not raised any preliminary objection to A.M.’s representation of her children in Strasbourg. Due to the Court’s rejection of the applicant’s complaint insofar as it had been lodged on behalf of the applicant’s children, the children (as well as N.) had no opportunity to present their respective standpoints (or have them represented) even though they are very much concerned by the outcome of this judgment. As aptly put by the concurring Judges, the fact that it may be impossible for children to be represented by one of their parents (both of whom may have specific interests in the outcome of the case) ‘should not amount to an absence of representation of their interests’ (§ 5, first concurring opinion). We could spend a long time discussing the question to what extent a parent (who is in conflict with another parent) can address the Court representing their common children when parents are not in agreement about their best interests. As noted by Judge Elósegui, this is a controversial issue, including among the Judges of the ECtHR. However, this is not a good enough reason to exclude children’s interests from the case completely or only address them in a superficial manner, supposedly referring to the best interests of the child but not actually addressing those interests in any kind of detail. This is exactly what happened in this case as the judgment refers to the best interests of the children numerous times, but – as mentioned by the concurring Judges – ‘the Court did not reflect further on the appropriate way to take into account the interests of the children’ (§ 5, first concurring opinion).
In this context, questions arise whether and how the Court should be trained on adopting a children’s rights perspective so that it can meaningfully consider the implementation of children’s right to be heard in their own proceedings (Article 12 UN Convention on the Rights of the Child (UNCRC)). Indeed, the implementation of children’s right to be heard (Article 12 UNCRC) contributes to the implementation of their best interests (Article 3 UNCRC) (General Comment No. 12, 2009 (CRC/C/GC/12)). The UN Committee on the Rights of the Child has expressly stated that Articles 3 and 12 UNCRC are complementary: ‘one establishes the objective of achieving the best interests of the child and the other provides the methodology for reaching the goal of hearing […] children. In fact, there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives.’ (General Comment No. 12, 2009 (CRC/C/GC/12) § 74) Therefore, in addition to the Court’s claims concerning the importance of the best interests of the child, more meaningful considerations in terms of children’s right to be heard and practical ways for the Court to involve children and hear their views and perspectives could contribute to the implementation of children’s best interests in practice.
In this regard, the concurring Judges referred to a few potential avenues for the involvement of children and other concerned parties in the Court’s proceedings. For example, all individuals defined as ‘concerned’ in a particular case (such as the initial parties to the domestic proceedings) could be systematically notified of the pending cases concerning them. This could be done in the context of Article 36 (2) ECHR, according to which the President of the Court ‘may, in the interest of the proper administration of justice, invite […] any person concerned who is not the applicant to submit written comments or take part in hearings.’ Notably, the concurring opinion of Judge Elósegui provides a number of examples when the President of the Chamber or the President of the Grand Chamber has in fact invited or informed concerned parties to participate in the proceedings and submit their own observations by means of a third-party intervention (§ 9, 10, 11, second concurring opinion). However, the drawback of this mechanism relates to potentially uncooperative concerned parties, such as perhaps the other parent in a case before the Court, especially when they cannot be found and contacted (which is the case in the situation at hand). Similarly, it could be problematic when the parent who is afforded custody over the children refuses to participate in the proceedings or to allow the children to be represented by a third party even after being invited by the Court. In any case, considering the importance of the children’s rights perspective and the fact that children are rights holders in and of themselves, it is questionable whether such judicial initiatives should only concern adults. It remains unclear whether any children have ever been invited to submit their observations, preferences and opinions to the Court. This issue is extremely pertinent since it is much more difficult for children to submit a third-party intervention on their own and they will often require help from an appropriate representative who may not be their parent. This relates to another proposed way to involve children and duly consider their interests. It concerns the establishment of a ‘mechanism whereby a representative ad litem would be appointed for children whose rights or interests are at stake in proceedings before the Court but who cannot be considered to be represented by the applicant or the respondent Government’ (§ 11, first concurring opinion).
Apart from the different perspectives and opinions of the two parents involved in the case, the situation at hand could be seen as strongly influenced by the prejudiced societal attitudes towards trans (parental) rights. Crucially, the case essentially originates from the point at which the applicant decided to inform her children about her gender transition and identity. The children were 4 and 7 years old at the time (§ 14, second concurring opinion). In relation to A.M.’s wish to inform her children, their mother, N., maintained that the applicant’s gender transition (1) had caused irreparable harm to the mental health and morals of the children, (2) could distort their perception of family, (3) could lead to an inferiority complex and bullying at school, and (4) could expose them to information on ‘non-traditional sexual relations’, such information being prohibited from distribution to minors by the so-called ‘gay propaganda law’ (§ 14). We consider these aspects of the domestic line of argumentation very important because they are also present in the domestic courts’ and the Russian government’s positions.
Indeed, the domestic courts essentially agreed with N. and considered that ‘the resulting changes to Ms A.M.’s personality and the disclosure of information on [A.M.’s] gender transition will create long-term psychotraumatic circumstances for the children and produce negative effects on their mental health and psychological development’ (§ 22, emphasis added). This position has also been repeated by the Russian Government during the proceedings before the ECtHR but the Court has provided very little input on these issues because the children were excluded from the case (§ 46 and 67). This is unfortunate as such a position could reinforce the ‘vicious circle’ that can be associated with the prejudiced opinions towards the trans community and the lack of education and information on LGBTQI+ rights in Russia. Not only are the information and education on these matters not offered through governmental initiatives in order to combat transphobia and prejudice – they are in fact banned by the Russian ‘gay propaganda law’, meaning that it is very difficult to bring the perception of the Russian society (parents, children and teachers included) more in line with the values of the Council of Europe and the ECHR. In terms of the claims associated with the harm to children’s mental and psychological health, morals and their perception of family, the third-party interveners had stated, and the Court reiterated, that – according to scientific research – younger children are arguably more accepting of their parents’ gender transition than older children (§ 47) and find it easier to adjust to their new family situation after a parent transitions. The Court also noted the third parties’ reference to ‘the existence of multiple studies concluding that fears about the negative impact of a parent’s gender transition on a child’s development are groundless’ (§ 55). However, such adjustment and the adaptation process can be much more difficult when it is accompanied by the social stigma, negative perceptions and ‘myths’ concerning transgender parents (§ 47) which can be reinforced through the lack of education and information on LGBTQI+ issues both for children and adults.
In this context, it is regrettable that the Court did not address ‘the elephant in the room’ present in this case – the impact of both the prejudiced societal environment in Russia and the influence of the ‘gay propaganda law’ which has been found in violation of Article 10, and Article 14 together with Article 10 ECHR in the case of Bayev and Others v. Russia. These circumstances lead to negative effects on children’s right to receive information as well as their right to education and, eventually, protection from bullying. Indeed, as noted by the third parties to the Bayev case, laws on ‘homosexual propaganda’ in fact ‘made it impossible for schools, educational authorities and charities to provide students with objective information on sexual orientation and gender identity, to implement measures against bullying and harassment and to provide adequate protection to LGBT students, staff and teachers’ (Bayev and Others v. Russia, § 59, emphasis added).
Thus, when considering children’s best interests, the Court had an opportunity to elaborate on children’s right to non-discrimination on behalf of their parent’s gender identity (Article 2 UNCRC), their right to maintain personal relations and direct contact with both parents on a regular basis (Article 9 (3) UNCRC), their right to freedom to receive information about LGBTIQ+ issues as well as gender identity and transition (Article 13 UNCRC), and their right to education on these important issues (Article 28 UNCRC). Notably, Article 29 UNCRC specifically states that children’s education shall be directed to, among other issues, the ‘development of respect for human rights and fundamental freedoms’ and the ‘preparation of the child for responsible life in a free society, in the spirit of understanding [and] tolerance […]’ (Article 29 (b) (d) UNCRC, emphasis added).
With regard to the potential risk of the children developing an inferiority complex and being bullied at school, the Court could have reminded the parties concerned that the UNCRC recognises children’s right to protection from all forms of violence, including physical or mental violence and bullying (Article 19 UNCRC). Some of the ways to address and potentially tackle bullying are directly linked with awareness raising and the provision of information and education to both children and adults on matters the society may be prejudiced against. In this sense, Article 19 UNCRC requires State Parties to take all appropriate legislative, administrative, social and educational measures to protect children. In its Resolution 69/158, the UN General Assembly recognised the importance of children’s environments and especially the role of their family members, caregivers, teachers, the civil society and the media should have in the prevention of bullying. The Resolution recognises that bullying can be associated with, inter alia, discrimination and stereotypes, and that action must be taken to prevent bullying on any basis. In this respect the Resolution encourages the UNCRC Member States (including the Russian Federation) to take all appropriate measures to prevent and protect children from any form of violence, including bullying. It also stresses the importance of continued promotion and investment in education, ‘including as a long-term and lifelong process by which everyone learns tolerance and respect for the dignity of others and the means and methods of ensuring such respect in all societies’ (§ 3 (b), emphasis added). Finally, it also encourages State Parties to ‘raise public awareness, involving family members, legal guardians, caregivers, youth, schools, communities, community leaders and the media as well as civil society organizations, with the participation of children, regarding the protection of children from bullying’ (3 (d), emphasis added).
Indeed, the Court could have elaborated on the issues associated with the use of negative stereotypes about transgender people as a justification for limiting contact and communication between transgender parents and their children. Moreover, in its Resolution 2239(2018) on ‘Private and family life: achieving equality regardless of sexual orientation’, the Parliamentary Assembly called on Council of Europe member States to protect the rights of parents and children in rainbow families, without discrimination based on sexual orientation or gender identity. In addition to the need to avoid reliance on negative perceptions and prejudice about transgender parenthood, States should take measures to counteract the social exclusion of trans persons from their social environment (which can lead to trans parents being deprived of their parental rights and/or contact with their children), including through educational and awareness-raising measures and respect for both transgender and children’s rights. This is not something that the Court has stressed in its judgment and it did not elaborate on the importance of educational and informational measures crucial for the broader societal context of this case.
In sum, while the Court’s judgment in A.M. and Others v. Russia means another and important step forward in the protection of the human rights of trans persons, the question arises whether a new approach regarding the representation of children and their best interests in horizontal family conflicts has become inevitable. It is regrettable that the European Court of Human Rights both excluded the children from this case and did not comment on the impact of the Russian societal context on their rights. These include children’s right to protection from discrimination on the ground of their parent’s gender identity, their right to maintain personal relations and direct contact with both parents on a regular basis, and their rights to education, information and protection from bullying. When the society is deprived of quality information and education on LGBTQI+ issues, and no awareness-raising efforts are undertaken by the government, the bullying and social stigmatisation of trans parents ánd their children can become a sort of a ‘self-fulfilling prophecy’. In the Russian case, these circumstances are not unforeseeable, unintentional or accidental as the government in fact bans the provision of information on LGBTQI+ issues to children. While it is of course very difficult to change societal perceptions and improve the situation in practice to strengthen the position of trans families in Russia, the Court could have addressed these circumstances and, specifically, their impact on children’s rights. In our view, this could have a strengthening effect on the implementation of one of the most important objectives of the Council of Europe – the protection of human rights, also including those of children.