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Court Rules on Possible Human Rights Violations in Child Residence Cases

April 27, 2018 Family Law

The European Court of Human Rights was recently called upon to decide whether there had been breaches of human rights in two different sets of proceedings for child residence orders, both of which originated in Russia. It has now given its judgments, and found there was a violation in one of the cases but not in the other.

In Leonov v Russia, it held by six votes to one that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights, and, by six votes to one, that there had been no violation of Article 14 (prohibition of discrimination) in conjunction with Article 8.

However, in Magomadova v. Russia it held, unanimously, that there had been a violation of Article 8 and rejected a complaint under Article 13 (right to an effective remedy).

The cases concerned the applicants’ legal efforts to have their children live with them.

Neither Sergey Leonov, the applicant in the first case, nor Elita Magomadova, the applicant in the second case, won their cases at the domestic level. They both alleged that the domestic courts had violated their rights under the Convention.

The Court found that Mr Leonov had been able to present his case fully to the domestic courts and that the courts’ reasons for their decision not to order that his child live with him had been relevant and sufficient. In particular, it was not convinced by Mr Leonov’s argument that the judge in his case had believed that small children should always be raised by their mothers. It did not find any violations of his rights under the Convention.

That had not been the case for Ms Magomadova: the courts’ examination had not been thorough enough, which had not allowed the best interests of the child to be established. Overall, there had been a violation of her rights under Article 8. She eventually obtained custody of the child after the father died in a car accident.

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