Nazarenko v Russia: ECHR 16 Jul 2015

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Complete and automatic exclusion of applicant from child’s life after it was established he was not the biological father: violation
Facts – During their marriage, the applicant and his wife had a daughter A. The couple later divorced and the applicant enjoyed shared custody of the child. Following a challenge to the applicant’s paternity, it was established that he was not the child’s biological father. As a result, and even though the domestic authorities accepted that he had raised and cared for the child over a period of five years, he lost all parental rights in respect of the child, including the right to maintain contact with her. His name was removed from the child’s birth certificate and the child’s family name had to be changed. The domestic law did not provide for any exceptions which would have allowed the applicant, in the absence of any biological links with the child, to maintain any form of relationship with her.
Law – Article 8: A. had been born during the applicant’s marriage and had been registered as his daughter. Having no doubts about his paternity of A., the applicant had raised her and provided care for her for more than five years. As established by the childcare authority and expert psychologists, there was a close emotional bond between the applicant and A. Their relationship therefore amounted to family life within the meaning of Article 8 – 1. The absence of biological links with a child did not negate the existence of family life for the purposes of that provision (see, as regards foster parents, Kopf and Liberda v. Austria, 1598/06, 17 January 2012).
The Court was concerned with the inflexibility of the Russian legal provisions governing contact rights. The Government had not given any reasons why it should have been ‘necessary in a democratic society’ to establish an inflexible list of persons entitled to maintain contact with a child and not to make 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, like the applicant, was not related to the child but who had taken care of it for a long period and formed a close personal bond with it could not obtain contact rights in any circumstances, irrespective of the child’s best interest.
The Court was not convinced that the best interests of children in the sphere of contact rights could be truly determined by a general legal assumption. A fair balancing of the rights of all persons involved necessitated an examination of the particular circumstances of the case. Accordingly, Article 8 could be interpreted as imposing on the member States an obligation to examine on a case by case basis whether it was in the child’s best interests to maintain contact with the person, whether biologically related or not, who had taken care of him or her for a sufficiently long period of time. By denying the applicant the right to maintain contact with A. without any examination of the question of whether such contact would have been in A.’s best interest, Russia had failed to comply with that obligation.
A person who had brought up a child for some time as his own should not be completely excluded from the child’s life after it was revealed that he was not the biological father unless there were relevant reasons relating to the child’s best interests for such exclusion. No such reasons had been advanced in the instant case. It had never been suggested that contact with the applicant would be detrimental to A.’s development. On the contrary, as established by both the childcare authority and expert psychologists, there existed a strong mutual attachment between the applicant and A. and the applicant had taken good care of the child.
In sum, the authorities had failed in their obligation to provide a possibility for the family ties between the applicant and A. to be maintained. The complete and automatic exclusion of the applicant from A.’s life after the termination of his paternity due to the inflexibility of the domestic legal provisions – in particular the denial of contact rights without proper consideration of A.’s best interests – had therefore amounted to a failure to respect the applicant’s family life.
Conclusion: violation (unanimously).
Article 41: No claim made in respect of damage.

39438/13 – Legal Summary, [2015] ECHR 775
European Convention on Human Rights 8-1

Human Rights

Updated: 04 January 2022; Ref: scu.552397