Taking of children into care
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Russian Family Code 1. Legal provision concerning protection of children ’ s rights 61. Article 54 provides that every child, that is to say a person under the age of 18 years, has a right to live and to be brought up in a family, in so far as possible, a right to know his or her parents, a right to their care, a right to live together with them, except where it is contrary to his or her interests. 62. Article 55 entitles a child to maintain contact with his or her parents, grandparents, brothers, sisters and other relatives. 63. By virtue of Article 57, a child is entitled to express his or her opinion on all family matters concerning him or her, including in the course of any judicial proceedings. The opinion of a child over ten years old must be taken into account, except where it is contrary to his or her interests. 2. Legal provisions concerning parents ’ rights and obligations 64. Article 63 provides that the parents ’ right to bring up their children has precedence over such a right of any other person. 65. Article 6 4 establishes that children ’ s rights and interests must be protected by their parents. The parents are entitled to act as legal representatives of their children and to protect their rights and interests in the children ’ s relations with any individuals or legal entities, including before the courts. The second part of the Article provides that parents have no right to represent their children if a competent childcare authority establishes the existence of a conflict between the parents ’ interests and those of their children. If this is the case, the childcare authority has an obligation to appoint a representative for the protection of the children ’ s rights and interests. 66. By virtue of Article 67, grandparents, brothers, sisters and other relatives are entitled to maintain contact with the child. If the parents, or one of them, prevent close relatives from seeing the child, a childcare authority may order that contact be maintained between the child and the relative in question. If the parents do not comply with the childcare authority ’ s order, the relative concerned or the childcare authority may apply to a court for a contact order. The court must take a decision in the child ’ s interests and must take the child ’ s opinion into account. If the parents do not comply with the contact order issued by a court, they may be held liable in accordance with the law. 67. Article 68 vests in the parents a right to seek the return of their child from any person who retains the child not on the basis of law or not in accordance with a court decision. In the event of a dispute, the parents are entitled to lodge a court claim for protection of their rights. When examining that claim, the court, with due regard to the child ’ s opinion, is entitled to reject the claim if it finds that the child ’ s transfer to the parents is contrary to the child ’ s interests. 68. Article 69 establishes that a parent may be deprived of parental authority if he or she avoids parental obligations, such as the obligation to pay child maintenance; refuses to collect the child from the maternity hospital, any other medical, educational, social or similar institution; abuses parental authority; mistreats the child by resorting to physical or psychological violence or sexual abuse; suffers from chronic alcohol or drug abuse; or has committed a premeditated criminal offence against the life or health of his or her children or spouse. 3. Legal provisions governing guardianship 69. Article 148.1 provides, in particular, that the rights and obligations of a legal guardian are set in place by the Federal Law “On Guardianship” (see paragraph 70 below). It further provides that, unless it is provided otherwise in a federal law, the parents or persons replacing them forfeit their rights and obligations to represent and protect the child ’ s rights and lawful interests from the moment when a guardian receives such rights and obligations. It also establishes that a legal guardian is not entitled to obstruct a child ’ s contact with his or her parents and other relatives, except where it is contrary to the child ’ s interests. B. Federal Law “On Guardianship” 70. Federal Law no. 48-FZ “On Guardianship” of 24 April 2008 ( Федеральный закон от 24 апреля 2008 № 48- ФЗ « Об опеке и попечительстве » ) provides in it section 15(2) that guardians are legal representatives of the children placed in their care and are entitled to act on their behalf for the protection of their rights and lawful interests without any formal authorisation. C. Ruling of the Supreme Court of Russia 71. In its ruling no. 10 on the application by the courts of legislation when resolving disputes concerning upbringing of children, dated 27 May 1998, as amended on 6 February 2007, the Plenary of the Supreme Court of Russia stated, in particular: “ ... 6. In accordance with the law, the parents ’ right to bring up their children has precedence over such a right of any other person (Article 63 § 1 of the Russian Family Code), and they are entitled to seek the return of their child from any person who retains the child not on the basis of law nor pursuant to a court decision (Article 68 § 1 (1) of the Russian Family Code). At the same time, a court is entitled, with due regard to the child ’ s opinion, to reject a parent ’ s claim if it finds that the child ’ s transfer to the parent is contrary to the child ’ s interests ... When examining such cases, the court takes into account whether there is a realistic possibility for a parent duly to bring the child up; the nature of the relations between the parent and the child, the child ’ s attachment to the individuals with whom he or she is living at that time, and other particular circumstances relevant for securing adequate conditions of the child ’ s living and upbringing by his or her parents as well as by the individuals with whom the minor is actually living and being brought up by ... 7. When examining parents ’ claims for the return of their children from individuals with whom [the children] remain on the basis of the law or in accordance with a court decision (guardians, foster parents ... ), it is necessary to find out whether the circumstances, which were the grounds for the transfer of a child to those individuals ..., have changed by the time the case is being examined, and whether the children ’ s return to their parents would be in their interests ”. THE LAW I. PRELIMINARY ISSUE 72. The first applicant lodged the present application on behalf of R., alleging a violation of his rights under Articles 3 and 8 of the Convention, and under Article 14 taken in conjunction with Article 8 of the Convention. She argued that the conditions governing the individual applications under the Convention were not necessarily the same as the national criteria relating to locus standi ( referring to A.K. and L. v. Croatia, no. 37956/11, § 46, 8 January 2013), and that a restrictive or purely technical approach to the issue of locus standi must be avoided ( S.P., D.P. and A. T. v. the United Kingdom, no. 23715/94, Commission decision of 20 May 1996, unreported ). In that connection, the first applicant insisted that she and R. had developed emotional ties that were equivalent to those between a mother and her child. The first applicant stressed that, unlike in the case cited by the Government, she had been taking care of R. for a very prolonged period, and more specifically during the first nine years of his life; during that period she had remained the only significant adult in his life. Moreover, during that period, she had had a formal legal link to R., having been his guardian. The first applicant further insisted that there was no conflict of interest between her and R., and that R. ’ s biological parents were not in a position to protect effectively his interests in the present case, given the issues it raised. The first applicant compared the situation in the present case with cases brought on children ’ s behalf by their natural parents deprived of the parental authority over those children, and argued that there was a danger that otherwise R. ’ s interests would never be brought to the Court ’ s attention. 73. The Government contested the first applicant ’ s standing to represent R. before the Court, with reference to the cases of Moretti and Benedetti v. Italy (no. 16318/07, 27 April 2010) and Giusto and Others v. Italy (( dec. ), no. 38972/06, ECHR 2007-V). They pointed out that, once her guardianship over the child had been terminated, the first applicant had lost any entitlement under domestic law to act as his legal representative. R. ’ s biological parents had full parental authority over him and were his legal representatives. They had never authorised the first applicant to represent R. before the Court. Therefore the part of the application lodged by the first applicant on R. ’ s behalf was incompatible ratione personae with the relevant provisions of the Convention. 74. The Court reiterates that the position of children under Article 34 of the Convention calls for careful consideration, as children must generally rely on other individuals to present their claims and represent their interests, and may not be of an age or capacity to authorise any steps to be taken on their behalf in any real sense (see A.K. and L. v. Croatia, cited above, § 47, and P.C. and S. v. the United Kingdom ( dec. ), no. 56547/00, 11 November 2001). It is necessary to avoid a restrictive and purely technical approach in this area; in particular, consideration must be given to the links between the child in question and his or her “representatives”, to the subject-matter and the purpose of the application and to the possibility of a conflict of interests (see S.P ., D.P. and A. T. v. the United Kingdom ( dec. ), cited above; Giusto and Others ( dec. ), cited above; and Moretti and Benedetti, cited above, § 32). 75. In the present case, the Court observes at the outset that the first applicant is not biologically related to R. Her situation is therefore different from the cases where the Court acknowledged natural parents ’ standing to act on behalf of their children in whose respect they had been deprived of their parental authority; in the latter connection, the Court has held that it was in principle in the interest of children to preserve ties with their biological parents (see A.K. and L. v. Croatia, cited above, §§ 48-49, with further references). The Court further observes that the first applicant is no longer R. ’ s guardian, as her guardianship was definitively withdrawn by the court decision of 4 May 2010, as upheld on appeal on 23 June 2010 (see paragraphs 46 and 49 above), with the result that she no longer has legal status to act on his behalf in the context of judicial or other proceedings at the domestic level. Furthermore, R. has been transferred to, and is now living with, his parents, who have full parental authority over him, which includes, among other things, the representation of the minor ’ s interests. They have never authorised the first applicant to represent R. before the Court. Lastly, in view of R. ’ s serious medical conditions, he is clearly not in a position to express himself on the issue. 76. In such circumstances, the Court is bound to conclude that the first applicant does not have standing to act before the Court on R. ’ s behalf. This part of the application must therefore be dismissed as incompatible ratione personae with the Convention provisions, in accordance with Article 35 §§ 3 and 4 thereof. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 77. The applicants complained that the decisions of the national authorities to return R. to his biological parents, terminate her guardianship and to refuse them contact with him had amounted to a breach of Article 8 of the Convention, which, in its relevant part, reads as follows: “1. Everyone has the right to respect for his private and family life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 1. The first applicant ’ s standing to lodge the present application on behalf of the second, third and eighth applicants (a) Submissions by the parties 78. In the initial set of their observations of 22 January 2013, the Government disputed the first applicant ’ s standing to lodge the present application on the second applicant ’ s behalf. They pointed out that the second applicant, who, according to the Government, had been born on 15 April 199 4 (as indicated in the Government ’ s initial observations), or on 15 April 1995 (as indicated in the Government ’ s additional observations of 29 April 2013 ) had reached the age of majority, when, by virtue of the relevant domestic law, the first applicant had ceased to be her guardian, had lost any legal link with her and had thus no authority to act on her behalf either at the domestic or international level. In their additional observations of 29 April 2013, the Government raised the same objection in respect of the third and eighth applicants. They argued, in particular, that the first applicant was no longer authorised to act on behalf of the eighth applicant, who, in the Government ’ s submission, had been born on 29 April 1993; and as of 4 May 2013 had no longer been authorised to act on behalf of the third applicant, who had been born on 4 May 1995. 79. The applicants submitted that the second applicant ( born on 1 April 1994 ) had turned 18 years old on 1 April 2012, and had thus gained full legal capacity to participate in the proceedings before the Court. The second applicant had submitted a power of attorney authorising the first applicant to represent her interests before the Court. (b) The Court ’ s assessment 80. The Court observes that the question of the first applicant ’ s standing to lodge the present application on behalf of the second, third and eight applicants is directly linked to its competence ratione personae to examine that part of the application. It has to satisfy itself that it has jurisdiction in any case brought before it, and it is therefore obliged to examine the question of its jurisdiction at each stage of the proceedings (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III; Uslu v. Turkey (no. 2), no. 23815/04, § 18, 20 January 2009; Boucke v. Montenegro, no. 26945/06, § 63, 21 February 2012; and Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016 ). 81. It further notes that, on 6 December 2010, the date when the present application was lodged, the second, third and eighth applicants were minors and the first applicant was their guardian thus having full authority to represent their interests and to act on their behalf. 82. Furthermore, in reply to the Government ’ s initial observations of 22 January 2013, the second applicant, who had come of age on 1 April 2012, confirmed her intention to pursue the application and signed a power of attorney authorising the first applicant to represent her in the proceedings before the Court. 83. As regards the third and eighth applicants, on 29 April 201 3 – the date of the submission by the Government of their additional observations and comments on the applicants ’ claims for just satisfaction – the third applicant ( born on 4 May 1995 ) was still a minor. Moreover, whilst the Government argued, without submitting any documentary evidence, that the eighth applicant had been born on 29 April 1993, the Court observes that, the documents enclosed by the applicants with their application form reveal that his actual date of birth is 29 April 2003. It is thus clear that, on when the parties completed the exchange of their observations in the present case, the third and eighth applicants were minors, and thus were not required to confirm their interest in pursuing the present application or to authorise formally the first applicant to represent their interests before the Court, as the first applicant, as their guardian (her legal status has not been disputed by the Government on any other grounds ), had standing to act on their behalf before the Court. 84. Against that background, the Court is satisfied that the first applicant had standing to represent the second, third and eighth applicants in the present case. It concludes that, in so far as the application was lodged by the first applicant on their behalf, it is compatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention. 2. Exhaustion of domestic remedies 85. In their additional observations of 29 April 2013, the Government briefly submitted that, the court claim for access to R. had been lodged by the first applicant on her behalf only. 86. In so far as this argument may be understood as an objection as to the admissibility for failure to exhaust available domestic remedies of this part of the application in respect of the second to eighth applicants, the Court reiterates that, pursuant to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see Buzadji, cited above, § 64). It notes that the Government did not raise this objection in their initial observations of 22 January 2013 on the admissibility and merits of the application; nor did it provide any explanation for that delay, or refer to any exceptional circumstance capable of exempting them from their obligation to raise an objection to admissibility in a timely manner. 87. They are therefore unable to rely on a failure to exhaust domestic remedies at this stage of the proceedings (see Topal v. Republic of Moldova, no. 12257/06, § 27, 3 July 2018, and the authorities cited therein). 3. Existence of a “family life” between the applicants and R. (a) Submissions by the parties 88. The Government argued that the “family life”, within the meaning of Article 8 of the Convention, between the applicants and R. had only existed as long as the first applicant had officially remained R. ’ s guardian. They furthermore stressed that during that period R. had not lost ties with his natural parents, who, as the domestic courts had established, had not failed in their parental duties, and had provided financial support to him. In such circumstances, in the Government ’ s opinion, the applicant ’ s complaints in respect of any infringement of their “family life” were incompatible ratione materiae with Article 8 of the Convention. 89. According to the applicants, the ties between them and R. had amounted to “family life”, within the meaning of Article 8 of the Convention, which, in the applicants ’ view, had expressly been acknowledged by the Government. (b) The Court ’ s assessment 90. The Court reiterates that the notion of “family life” under Article 8 of the Convention is not confined to marriage-based relationships and may encompass other de facto “family” ties where the parties are living together outside marriage or where other factors demonstrated that the relationship had sufficient constancy (see Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 140, 24 January 2017 ). The existence or non-existence of “family life” for the purposes of Article 8 is essentially a question of fact depending on the real existence in practice of close personal ties (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII ). 91. The Court has found in previous cases that the relationship between a foster family and a fostered child who had lived together for many months had amounted to family life within the meaning of Article 8 § 1, despite the lack of a biological relationship between them. The Court took into account the fact that a close emotional bond had developed between the foster family and the child, similar to the one between parents and children, and that the foster family had behaved in every respect like the child ’ s parents (see Moretti and Benedetti, cited above, §§ 49-50, and Kopf and Liberda v. Austria, no. 1598/06, § 37, 17 January 2012). 92. In the present case, the existence of family ties between the applicants and R. prior to his transfer to his natural parents was not in dispute between the parties. Indeed, although there was no biological link between the applicants and R., the latter remained in the first applicant ’ s constant care from the age of eight months for the first nine years of his life. It has never been disputed, either before the domestic authorities or before the Court, that during that period the first applicant fully assumed the role of a parent vis-à-vis that child. The other applicants, when still minors, were taken by the first applicant into her care at various times, and lived as family with R. for periods ranging from one to seven years (see paragraph 11 above) before R. was eventually transferred to his biological parents. Close personal ties between the applicants and the fact that the first applicant had assumed the role of R. ’ s parent were acknowledged by domestic courts in various sets of proceedings (see paragraphs 22 and 40 above). 93. In such circumstances, the Court is satisfied that the relationship between the applicants and R. constituted “ family life ” within the meaning of Article 8 § 1 of the Convention (compare Antkowiak v. Poland ( dec. ), no. 27025/17, 22 May 2018 ). It follows that Article 8 of the Convention is applicable. 4. Conclusion 94. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Termination of the first applicant ’ s guardianship over R. and his transfer into his natural parents ’ care (a) Submissions by the parties i. The applicants 95. The applicants argued that the termination of the first applicant ’ s guardianship over R. and his transfer into his biological parents ’ care had constituted a disproportionate interference with their right to respect for their family life secured by Article 8 of the Convention. 96. They admitted that life in a family environment was a basic need of every child; however, they disagreed with the respondent Government that R. could realise that right only when living with his natural parents. They pointed out that, as the Government had acknowledged, their life with R. had constituted a “family life”, and argued that a question as to what form of family life would better serve a child ’ s interest should be resolved on the facts of a particular case, with due regard to the particular history of that child ’ s relations with his or her biological parents as well as to the ties between that child and his or her de facto family. 97. They insisted that continuing living with them would have been in R. ’ s best interests, given, in particular, the circumstances of his life prior to the courts ’ decision to terminate the first applicant ’ s guardianship and to transfer him to his natural parents ’ care. By taking that decision, the domestic courts, in the applicants ’ view, had failed to assess adequately all relevant circumstances and factors, and to base their decision on “relevant and sufficient” reasons. 98. In the above connection, the applicants argued, in particular, that, shortly after his birth, R. ’ s parents had actually abandoned him at the children ’ s hospital and had never come to see him there. Moreover, the very fact that a guardian had had to be appointed had been indicative that R. had been abandoned by his parents, as under national law guardianship had been possible only in respect of children left without parental care. 99. The applicants further disputed the Government ’ s arguments that R. ’ s parents had consented to the first applicant ’ s guardianship over their son and to his transfer into her care, as they had been unable to attend to his needs; and that the guardianship had been intended as a temporary measure until his condition had improved. In the latter connection, they submitted that in the administrative decision of 23 November 2001 (see paragraph 10 above) there had been no indication that the guardianship had been of a temporary nature; nor had time-limits or conditions in which the guardianship should be terminated been mentioned. The applicants also contended that R. ’ s parents could have remained living with R. and tried to organise necessary specialist care for him at home, with the assistance of healthcare professionals or by acquiring the necessary skills themselves, but instead they had chosen to live separately from the boy. In its judgment of 11 November 2008 – albeit at first instance – the District Court had found no grounds to deprive R. ’ s parents of their parental authority over R., it had pointed out to the necessity for them to change their attitude to R. ’ s upbringing (see paragraph 19 above), thereby implicitly acknowledging that R. ’ s parents had not fulfilled their parental obligations in a satisfactory manner. 100. The applicants went on to argue that R. ’ s parents had not maintained personal contact with him and had not expressed interest in regard to him during the first eight years of his life, this fact having been acknowledged in a judgment of 26 February 2009 (see paragraph 23 above). 101. They insisted that, in any event, when the decision to terminate the guardianship had been taken, the ties between R. and the applicants had been much stronger than his relations with his natural parents. Indeed, by that point in time, the boy had never lived with his parents, whereas it had been the first applicant who for the first nine years of his life had taken care of him on a daily basis, and had thus been the only significant adult for him. In the applicants ’ view, the domestic courts had failed to have regard to R. ’ s best interests and, in particular, to the specific needs he had because of his medical conditions. 102. The applicants also expressed doubts that the measures taken with a view to ensuring R. ’ s adaptation to his biological parents and his integration into his family prior to his transfer into their care had been adequate, as they had been limited to several dozen short meetings with the parents. The applicants referred to the opinion of the childcare authority, who had considered those measures insufficient and had recommended to increase R. ’ s contact with the parents gradually instead of transferring him immediately into their care (see paragraphs 34 and 36 above). 103. In such circumstances, termination of R. ’ s family life with the applicants and his transfer to the biological parents had, in the applicants ’ view, mainly served their interests rather than those of the child. ii. The Government 104. According to the Government, termination of the first applicant ’ s guardianship over R. and his transfer to his natural parents ’ care had met the requirements of Article 8 of the Convention. They argued, in particular, that the impugned measure had had a basis in national law, and more specifically in several Articles of the Russian Family Code, which had enshrined the right of each child to know, maintain contact with, live and be in the care of his or her parents; as well as the precedence of the parents ’ right to bring up their children (see paragraphs 61, 64 and 67 above). 105. They further stressed that the impugned measure had been taken in the child ’ s best interests and had been necessary to ensure the respect for his parents ’ rights secured by Article 8 of the Convention. In this connection, they pointed out, in particular, that R. ’ s biological parents had never formally renounced their parental authority over him; and that their parental authority had never been restricted, or withdrawn, by the competent authorities. The Government pointed out that, in various sets of proceedings, the domestic courts had established that R. ’ s parents had never abandoned their child; they had enquired about his life and health, supported him financially, and brought him necessary medicine and food for a special diet and clothes; and they had also responded to the first applicant ’ s requests regarding R. (see paragraphs 18 and 39 above). The Government thus argued that the family life between R. and his parents and other close relatives had never ceased to exist; his parents and other close relatives had always shown their deep attachment to him and had always considered him to be a member of their family. 106. The Government further submitted that it had been at a very difficult period of their life that R. ’ s parents had consented to their son ’ s transfer into the first applicant ’ s care; they had done so in view of his very serious medical condition, which at that moment had been critical. They, themselves, had been incapable at that period of providing the professional care that their child had needed, whereas the first applicant – a paediatrician – had been able to attend to his needs. The Government stressed that the guardianship had had to remain in place until R. ’ s condition had improved. In fact, in 2007, when R. ’ s state of health had stabilised, his parents had expressed their intention to take him home. They argued, more generally, that by its very nature, guardianship was a temporary measure which was to be ended as soon as the circumstances allowed it. 107. The Government also insisted that the domestic courts had carefully examined the circumstances of the instant case, had assessed the adduced written evidence and witness statements, and had based their relevant decision to terminate the first applicant ’ s guardianship over R. and to surrender him to his parents ’ care on “relevant and sufficient” reasons. In particular, they had examined R. ’ s family situation, had taken into account various factors, had balanced the interests of various parties to the conflict and had taken a decision in the best interests of the child. 108. More specifically, the domestic courts had been mindful of the fact that the applicants and R. had lived together for a very lengthy period, and had assessed, with reference to witness statements and written evidence, including the report of 4 May 2010 (see paragraph 35 above), the question of whether the boy ’ s removal from the applicants ’ family could negatively affect his physical or psychological state. Moreover, R. ’ s transfer to his parents had only been ordered after a one-year period of adaptation during which R. ’ s parents and brother had re-stablished their family bonds with R. The domestic courts had satisfied themselves that R. ’ s parents had acquired the necessary skills to take care of R., that they had been able to understand his psychological and emotional state, his aptitudes and needs. 109. The Government thus argued that the impugned measure had not breached the applicants ’ right to respect for their family life, as in the present case reunification with his natural parents had served the best interests of the child. (b) The Court ’ s assessment 110. The Court has found in paragraph 93 above that the relationship that existed between the applicants and R. when the authorities intervened constituted “family life”, within the meaning of Article 8 of the Convention. The annulment of the first applicant ’ s guardianship over R. and his transfer to his biological parents resulted in severance of that relationship and thus constituted an interference with the applicants ’ right to respect for their family life, as guaranteed by Article 8 of the Convention ( compare Ageyevy v. Russia, no. 7075/10, §§ 120 and 137, 18 April 2013, and Antkowiak ( dec. ), cited above, § 63 ). Such interference constitutes a violation of that provision unless it is “in accordance with the law”, pursues one of the legitimate aims under Article 8 § 2 and can be regarded as necessary in democratic society (see, among other authorities, Jovanovic v. Sweden, no. 10592/12, § 74, 22 October 2015 ). 111. The Court accepts the Government ’ s argument that the impugned measures had a basis in national law, and more specifically, in Articles 54, 63 and 68 of the Russian Family Code (see paragraphs 61, 64 and 67 above). It is furthermore satisfied that those measures were intended to protect “the rights and freedoms of the others”, and specifically those of R. and his biological parents. It remains to be determined whether the interference at issue was necessary in a democratic society. 112. In addressing this question, the Court has to consider whether, in the light of the case as a whole, the reasons given to justify the impugned measure were “ relevant and sufficient ” for the purposes of Article 8 § 2 of the Convention. It cannot satisfactorily assess this latter element without at the same time determining whether the decision-making process, seen as a whole, was fair and provided the applicant with the requisite protection of her interests safeguarded by Article 8 (see, for instance, Schneider v. Germany, no. 17080/07, § 93, 15 September 2011). 113. It must further be borne in mind that the national authorities have the benefit of direct contact with all the individuals concerned. It follows from these considerations that the Court ’ s task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and contact issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their discretionary powers (see, among other authorities, Görgülü v. Germany, no. 74969/01, § 41, 26 February 2004 ). 114. There is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, 6 July 2010, and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). The child ’ s best interests may, depending on their nature and seriousness, override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the child ’ s health and development (see, for instance, Kocherov and Sergeyeva v. Russia, no. 16899/13, § 95, 29 March 2016 ). The parents ’ interests nevertheless remain a factor when balancing the various interests at stake. Child interests dictate that the child ’ s ties with his or her family be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family (see, as a recent authority, Kacper Nowakowski v. Poland, no. 32407/13, § 75, 10 January 2017 ). Article 8 of the Convention thus imposes on every State the obligation to aim at reuniting natural parents with his or her child (see Görgülü, cited above, § 45). 115. In the present case, the domestic authorities were faced with a difficult choice between allowing the applicants, who at that time were R. ’ s de facto family, to continue their relationship with him or taking measures to bring about the boy ’ s reunion with his biological family (compare Antkowiak ( dec. ), cited above, § 70 ). To that end, they were called upon to assess and fairly balance the competing interests of R. ’ s parents and those of the applicants. They also had to bear in mind that, in view of his special physical and psychological conditions, R. was a particularly vulnerable child. The domestic authorities were therefore required to show particular vigilance in assessing his interests and to afford him increased protection with due regard to his state of health. 116. In the above connection, the following considerations appear to be relevant. The Court notes, firstly, that, as pointed out by the applicants (see paragraph 101 above), R. spent the first nine years of his life in the first applicant ’ s care, a period during which she remained the boy ’ s primary carer, having fully assumed the role of his parent. The Court considers that, albeit undoubtedly a considerable period of time, this factor alone could not have ruled out the possibility of R. ’ s reunification with his biological family. Indeed, effective respect for family life requires that future relations between parent and child be determined in the light of all the relevant considerations and not by the mere passage of time (see Ribić v. Croatia, no. 27148/12, § 92, 2 April 2015 ). 117. It further notes that it is true that R. ’ s parents acquiesced to the appointment of the first applicant as R. ’ s guardian. At the same time, as pointed out by the Government, they never formally renounced their parental authority over their son; neither were they restricted in, nor deprived of that authority (see paragraphs 16 and 39 above). Moreover, the domestic courts established that, although during the first eight years of R. ’ s life his parents had not maintained contact with him, they had nevertheless supported him financially and had accommodated the first applicant ’ s requests regarding medicine, food for a special diet for the boy, and the like ( see paragraph 18 above). Moreover, in 2009, they re-established their relationship with R. when the District Court determined their contact rights regarding him (see paragraphs 28 - 30 above). They therefore remained present in their son ’ s life, with the result that, even in the absence of any explicit time-limits or conditions for ending the first applicant ’ s guardianship in the text of the administrative decision of 23 November 2001, she could not have realistically assumed that R. would have remained in her care permanently. It thus rejects the first applicant ’ s argument to that end (see paragraph 99 above). The Court reiterates in that connection that care orders are by their very nature meant to be temporary measures, to be discontinued as soon as circumstances permit, and any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child (see Ageyevy, cited above, § 143, and S.S. v. Slovenia, no. 40938/16, § § 85 and 101, 30 October 2018). 118. Furthermore, the case file reveals that the domestic courts carefully assessed R. ’ s best interests, with due regard to his state of health and his needs. In various sets of court proceedings, they noted, in particular, the first applicant ’ s attachment and genuinely caring attitude towards the child; her proactive approach in taking care of him and addressing his health issues, which had ensured progress in his physical and psychological development and overall improvement of his conditions (see paragraphs 22 and 40 above). As regards the biological parents, initially the authorities had doubts about whether they were fit and capable of securing R. ’ s needs. In particular, the authorities pointed to the lack of personal contact between them and R. and urged them to take a more responsible attitude regarding their parental obligations (see paragraphs 15, 19 and 23 above). In that connection, the courts rejected R. ’ s parents first claim for the boy ’ s transfer to their care, noting that such an immediate transfer could traumatise him and compromise his health, and that an adaptation period was necessary for R. to get used to his natural parents (see paragraph 24 above). In the proceedings concerning R. ’ s parents ’ second claim for his transfer, however, the courts found that R. ’ s parents were fit to raise him. It is noteworthy that by that time the contact arrangements between R. and his parents had been in place for a year. When taking that decision, the domestic courts satisfied themselves, with due regard to written evidence, including psychological reports, and witness statements, that R. ’ s parents had re-established their relations with the child; that they could adequately understand his psychological particularities, emotional state, needs and capabilities; that they had appropriate living conditions for the child; and that the latter felt calm and comfortable with them (see paragraphs 35, 42 and 43 above). 119. Against that background, and with due regard to the fact that the domestic authorities had the benefit of contact with all those concerned, the Court considers that, when ordering R. ’ s transfer to his biological parents and the termination of the first applicant ’ s guardianship over him, the domestic authorities acted within their margin appreciation and in compliance with their obligation under Article 8 of the Convention to aim for the reunification of the child with his parents. It further considers that they provided “relevant and sufficient” reasons for the measure complained of. Whilst the Court acknowledges the emotional hardship that the said decision must have caused the applicants, their rights could not override the best interests of the child (compare Antkowiak ( dec. ), cited above, § 72). 120. Lastly, in so far as the decision-making process was concerned, the Court observes that the first applicant, acting on behalf of herself and on the other applicants ’ behalf, was fully involved in the relevant proceedings and legally represented at both levels of jurisdiction (see paragraphs 32 and 48 above). She was able to state her case, to present her arguments and submit evidence; numerous witnesses on her behalf were called and examined at the first-instance court (see paragraphs 40 above). The relevant court decisions reveal that her arguments were addressed and received reasoned replies. In such circumstances, the Court is satisfied that the decision ‑ making process was fair and provided the applicants with sufficient safeguards of their rights under Article 8 of the Convention. 121. In the light of the foregoing, the Court concludes that the decision to terminate the first applicant ’ s guardianship over R. and to transfer him to his biological family corresponded to his best interests, was taken within the authorities ’ margin of appreciation and was based on “relevant and sufficient” reasons. The interference with the applicants ’ family life was thus “necessary in a democratic society”. 122. There has accordingly been no violation of Article 8 of the Convention. 2. The applicants ’ access to R. (a) Submissions by the parties 123. The applicants complained that the refusal of any access and any contact with R. had led to a total severance of their family ties with him and had been grossly disproportionate to any legitimate aims the authorities might have pursued. In their submission, the decision of the domestic courts to refuse them any contact rights with R. had been the result of a formalistic approach of those courts to the concept of family and of their failure to take into account the emotional ties between the applicants and R. It had also been rooted in the inadequacy of the domestic legislation which had afforded no protection to de facto family ties existing in the absence of biological kinship or and legal arrangements, such as guardianship. The applicants also argued that the domestic courts ’ refusal to order a comprehensive medical examination with a view to obtaining R. ’ s opinion on the matter, and their failure to adduce any evidence regarding R. ’ s best interests in the question of contact rights with the applicants had rendered their relevant decisions arbitrary. 124. The Government argued that the domestic courts had been justified in their decision not to grant the applicants access to R. They pointed out that Article 67 of the Russian Family Code had established an exhaustive list of individuals entitled to have access to a child (see paragraph 66 above). Since the applicants had had neither blood ties with R., nor – after the first applicant ’ s guardianship had been cancelled – legal ties with him, there had been no grounds in national law to grant them access to R. The Government also pointed out that – as had been established by the domestic courts – R. ’ s medical condition had made it impossible to ascertain whether he had had any attachment to the applicants, and that therefore their argument to that end had been without foundation. They insisted therefore that, by refusing the applicants contact with R., the domestic authorities had not breached their right to respect for their family life under Article 8 of the Convention. (b) The Court ’ s assessment 125. The Court reiterates that where the existence of a family tie has been established, the State must in principle act in a manner calculated to enable that tie to be maintained (see Kocherov and Sergeyeva, cited above, § 98, and the authorities cited therein ). Moreover, even though the essential object of Article 8 is to protect the individuals against arbitrary interference by public authorities, there may be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family life even in the sphere of relations between individuals, including both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals ’ rights and the implementation, where appropriate, of specific steps (see, for instance, Kacper Nowakowski, cited above, § 71, 10 January 2017). 126. The Court has also held that, in view of the great variety of family situations possibly concerned, a fair balancing of the rights of all individuals involved necessitates an examination of the particular circumstances of each case (see Schneider, cited above, § 100). Accordingly, Article 8 of the Convention can be interpreted as imposing on member States an obligation to examine on a case-by-case basis whether it is in the child ’ s best interests to maintain contact with a person, whether biologically related or not, who has taken care of him or her for a sufficiently long period of time (see Nazarenko v. Russia, no. 39438/13, § 66, ECHR 2015 (extracts)). 127. In the present case, the domestic courts rejected the first applicant ’ s claims in respect of access to R., with reference to the absence of any legal link between her and the child after her guardianship had been terminated; they also pointed out to the lack of biological kinship between them, which pursuant to Article 67 of the Russian Family Code ruled out any possibility for the first applicant to seek access to the child (see paragraphs 55, 57 and 58 above). 128. In the Nazarenko case, cited above, which concerned a situation where the applicant lost all his parental rights, including contact rights, in respect of a child whom he had brought up as his own for several years, after it had been established that he was not her biological father, the Court has already expressed its concern regarding the inflexibility of the Russian legal provisions governing contact rights. Those provisions set out an exhaustive list of individuals who are entitled to maintain contact with a child, without providing for any exceptions to take account of the variety of family situations and of the best interests of the child. As a result, a person, who is not related to the child but who has taken care of him or her for a long period of time and has formed a close personal bond with him or her, is entirely and automatically excluded from the child ’ s life and cannot obtain contact rights in any circumstances, irrespective of the child ’ s best interests (see Nazarenko, cited above, §§ 65 and 67). The Court has found that the complete and automatic exclusion of the applicant from the child ’ s life after his parental status in respect of her was terminated as a result of the inflexibility of the domestic legal provisions – in particular the denial of contact rights without giving proper consideration to the child ’ s best interests – amounted to a failure to respect the applicant ’ s family life (ibid., § 68). 129. The Court discerns nothing in the reasoning of the domestic courts regarding the applicants ’ claim for access to R. which would enable it to reach a different conclusion in the present case. The texts of the court decisions reveal that the courts made no attempt to assess the particular circumstances of the present case, and, in particular, to take into consideration the relationship that existed between the applicants and R. prior to the termination of the first applicant ’ s guardianship over him; to give any consideration to the question of whether, and why contact between the applicants and R. might or might not be in R. ’ s best interests; to give any consideration to the question of whether and why the interests of R. ’ s natural parents might or might not override those of the applicants. In fact, in its final and binding decision, the appellate court limited itself to holding that the right to seek access to a child could in no circumstances be guaranteed to any individuals other than those listed in Article 6 7 of the Russian Family Code (see paragraphs 57 and 58 above). The Court cannot accept such reasoning as “relevant and sufficient” to deny the applicants access to R. Whilst it is not for the Court to speculate whether granting the applicants access to R. was in the child ’ s best interests, it cannot accept that the relevant court decisions were not based on the assessment of the individual circumstances of the present case and automatically rules out any possibility for the family ties between the applicants and R. to be maintained. 130. In the light of the foregoing considerations, the Court is bound to conclude that the domestic authorities failed in their obligation to fairly balance the rights of all individuals involved with due regard to particular circumstances of the present case, which amounted to a failure to respect the applicants ’ family life (compare Nazarenko, cited above, §§ 66 and 68). 131. There has accordingly been a violation of Article 8 of the Convention on that account. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 132. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 133. The applicants submitted that they had been deeply attached to R. and that they had suffered distress and anxiety since his transfer to his parents in view of their inability to maintain any contact with him. They claimed non-pecuniary damage in that connection, and in particular, 20,000 euros (EUR) to be awarded to the first applicant, EUR 10,000 to be awarded to each of the second and third applicants and EUR 5,000 to be awarded to each of the fourth to eighth applicants. 134. The Government contested that claim as excessive and unreasonable. 135. The Court notes that it has found a violation of the applicants ’ right to respect for their family life on account of the authorities ’ failure to provide a possibility for the family ties between the applicants and R. to be maintained. It considers that the applicants suffered non-pecuniary damage in that connection, which cannot be compensated by a mere finding of a violation. Accordingly, the Court awards the applicants jointly EUR 16, 00 0 in respect of non-pecuniary damage. B. Costs and expenses 136. The applicants also claimed 5,000 Russian roubles (RUB – approximately EUR 200 ) for the costs and expenses incurred before the domestic courts in the proceedings for contact rights. 137. The Government did not contest the indicated amount of the costs, or the fact that those had actually been paid; however, they argued that the applicants had been ordered to pay that amount in accordance with the relevant provisions of law on civil procedure, given the fact that they had lost the civil dispute. The Government therefore insisted that the applicants ’ claim for reimbursement should be rejected. 138. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly sum of EUR 200 for costs and expenses in the relevant domestic proceedings. C. Default interest 139. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 140. With reference to Article 46 of the Convention, the applicants requested that, without prejudice to any other measures that the respondent Government, subject to the supervision of the Committee of Ministers, may deem appropriate, individual measures be applied which would ensure restitutio in integrum in their case. In particular, they referred to the case of M.D. and Others v. Malta (no. 64791/10, 17 July 2012, §§ 85-90, with further references) and requested that the Court order the respondent Government to undertake all necessary and appropriate measures in order to restore and protect personal contact between R. and the applicants. 141. The Government argued that, by requesting individual measures, the applicants were encroaching on the competence of the Committee of Ministers. 142. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a breach imposes on the respondent State a legal obligation under that provision to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach ( restitutio in integrum ). However, its judgments are essentially declaratory in nature and, in general, it is primarily for the State concerned to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (see, among other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; Akdivar and Others v. Turkey (Article 50), judgment of 1 April 1998, Reports 1998-II, pp. 723-24, § 47; and Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, p. 25, § 58). This discretion as to the manner of execution of a judgment reflects the freedom of choice attached to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1) (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 ‑ B ). 143. Having regard to the established principles cited above and to the particular circumstances of the case, the Court finds it most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order in order to discharge their legal obligation under Article 46 of the Convention.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention owing to the order by the domestic courts to remove the child from his foster mother and return him to his biological parents and a violation of Article 8 of the Convention because of the decision to deny the foster family any subsequent contact with the child. It found in particular that the domestic courts had weighed up all the necessary factors when deciding to return the child to his parents, such as whether the measure had been in his best interests. However, the courts had denied the foster family any subsequent contact with the child, who had formed close ties with the first applicant and her remaining children. In this regard, the Court noted that the courts’ decision had been based solely on an application of Russia’s legislation on contact rights, which was inflexible and did not take account of varying family situations. The courts had therefore not carried out the required assessment of the individual circumstances of the case.