THIRD SECTION

CASE OF LEONOV v. RUSSIA

(Application no. 77180/11)

JUDGMENT

STRASBOURG

10 April 2018

FINAL

10/07/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
 LEONOV v. RUSSIA JUDGMENT 1

In the case of Leonov v. Russia,

The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Helena Jäderblom, President,
Luis López Guerra,
Helen Keller,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 17 October 2017 and 13 March 2018,
Delivers the following judgment, which was adopted on the latter date:

PROCEDURE
1. The case originated in an application (no. 77180/11) against the
Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Russian national, Mr Sergey Aleksandrovich
Leonov (“the applicant”), on 9 December 2011.
2. The applicant was represented by Ms S. Krasovskaya (Kharchenko), a
lawyer practising in the Moscow Region. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, Representative of
the Russian Federation at the European Court of Human Rights, and then by
his successor in that office, Mr M. Galperin.
3. The applicant alleged, in particular, that the refusal to make a
residence order in his favour in respect of his son, and the interim measure
as regards contact rights applied while the proceedings had been pending,
had violated his right to respect for his family life and the principle of
equality of spouses, and had, moreover, amounted to discrimination on
grounds of sex.
4. On 26 May 2015 the above complaints were communicated to the
Government and the remainder of the application was declared inadmissible
pursuant to Rule 54 § 3 of the Rules of Court.
2 LEONOV v. RUSSIA JUDGMENT

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1983 and lives in Moscow.

6. On 21 August 2007 the applicant’s wife, Ch., gave birth to a son, A.
7. The family lived at the applicant’s flat, where A. had his registered
residence. He received ongoing paediatric care at the neighbourhood
children’s clinic and attended a neighbourhood nursery school.
8. In November 2009 Ch. decided to leave the applicant. She moved
back to her parents’ residence and took A. with her. A. has been living with
her ever since.
9. On 9 March 2010 the applicant applied to the Justice of the Peace of
the 339th Court Circuit of the Vostochnoe Dergunino District of Moscow
for a residence order under which A. would live with him. He was
instructed to make corrections to his claim, which he did on 8 April 2010.
On the same day the case was transferred to the Timiryazevskiy District
Court of Moscow. It registered the case on 26 April 2010 and scheduled the
first hearing for 13 May 2010.
10. On 26 April 2010 Ch. lodged a counterclaim, asking for a residence
order under which A. would live with her, and for an interim measure
pending the proceedings. She claimed, in particular, that there was a risk
that the applicant might kidnap A. and take him to Belarus, where his
stepfather had a house. She stated that he had already tried to take A. away
from her and had in particular attempted to pick him up from the boy’s
nursery school.
11. On the same day, 26 April 2010, the Timiryazevskiy District Court
allowed Ch.’s request for an interim measure and forbade the applicant from
contacting A. or picking him up from the nursery school without Ch.’s prior
permission. It held as follows:
“The subject matter of the case is the residence of a child [A.] born in 2007. The
parents have been unable to come to an agreement on this matter. The child is now
living with his mother [Ch.]. The court therefore considers that the requested interim
measure would be proportionate to the claim. Otherwise, failure to take interim
measures might complicate or make impossible the execution of the forthcoming
judgment.”
12. The applicant learned of the interim measure on 30 April 2010. On
that day he came to visit A. at the nursery school and the teachers refused to
let him see the boy, citing the interim order.
13. In April and May 2010 the Lyublino and Dergunino childcare
authorities examined the applicant’s and Ch.’s flats and found their living
conditions satisfactory and suitable for a small child.
14. The first hearing was scheduled for 20 May 2010 but it was
adjourned until 24 May 2010 at the applicant’s request. The next hearing
 LEONOV v. RUSSIA JUDGMENT 3

was scheduled for 9 June 2010 but it was also adjourned until 23 June 2010
for the purposes of “obtaining evidence”.
15. On 22 June 2010 the Lyublino childcare authority issued its report
on the case. It considered that, by reason of his very young age, A. should
reside with his mother. The childcare authority considered that it was
particularly important for a child to be raised by the mother until the age of
five or six. A lack of maternal care during that period, and in particular
during the behavioural crises that a three-year-old typically undergoes,
could result in the child developing negative character traits, such as
stubbornness, surliness, hysterical reactions and inadequate social
adaptation. The residence arrangements could be reconsidered after A. had
reached the age of five or six years.
16. On 29 June 2010 the Timiryazevskiy District Court ordered an
expert psychological examination and adjourned the proceedings. The
experts were asked their opinion on what residence arrangements would be
in A.’s best interests.
17. On 6 July 2010 the applicant lodged an appeal with the Moscow City
Court against the decision of 29 June 2010 ordering an expert examination.
The appeal hearing was scheduled for 29 July 2010 but was adjourned until
17 August 2010 because the parties did not appear. On 17 August 2010 the
Moscow City Court upheld on appeal the decision of 29 June 2010. The
case file was sent to the experts on 8 September 2010.
18. Meanwhile, as Ch. had prevented him from seeing A., the applicant
applied to the childcare authority for a contact order. On 15 July 2010 the
childcare authority rejected the application, referring to the interim measure
imposed by the Timiryazevskiy District Court.
19. On 9 August 2010 the District Court received by post the applicant’s
appeal, dated 6 May 2010, against the decision of 26 April 2010 ordering
the interim measure. The applicant submitted that there had been no
justification for the interim measure, which had been motivated solely by
the prevailing belief that a child should be raised by the mother rather than
the father. He further submitted that the interim measure was contrary to
A.’s best interests. A lack of contact with his father and the paternal family
– A.’s grandparents, uncle, aunt and cousins – to whom he was very
attached might cause A. psychological trauma. It might, moreover, result in
A.’s estrangement from his father or, given his very young age, even his
forgetting his father altogether. It also created a risk that Ch. might turn A.
against his father. It might in turn mean that the results of any future expert
examinations – and, by extension, any future judicial decision on the child’s
residence – would be biased against the applicant. Lastly, the applicant
submitted that the interim measure breached his right to maintain contact
with his son.
20. On 17 September 2010 the Justice of the Peace of the 133th Court
Circuit of the Mytichshinskiy District of the Moscow Region convicted Ch.
4 LEONOV v. RUSSIA JUDGMENT

of assault and battery, a criminal offence under Article 116 of the Criminal
Code. In particular, the court found it established that on 20 June 2010 the
applicant had approached Ch. and A. while they were playing at the local
public beach and had hugged his son. Ch. had immediately snatched the boy
away from him and had hit the applicant at least two times, causing him
bodily injuries, before carrying the boy away. A fine was imposed on her.
21. On 11 November 2010 the experts issued their report. They found
that it would be beneficial for A. to maintain contact with both parents. He
was equally attached to both of them. Both parents were equally capable of
raising the child. The serious conflict currently persisting between the
parents could negatively affect A.’s psychological development.
22. On 12 November 2010 the proceedings were resumed. Hearings
were scheduled for 24 November and 7 December 2010 but could not take
place because some of the participants did not appear.
23. On 23 December 2010 the Dergunino childcare authority issued its
report on the case. It found that A. should reside with his mother, referring
to A.’s young age and the fact that he had lived with his mother for some
time already and was attending a neighbouring nursery school.
24. During the hearing of 24 December 2010 the applicant lodged an
objection against the judge of the Timiryazevskiy District Court, submitting
that she (that is to say the judge) had stated on several occasions that she
would rule against the applicant because according to the established
practice of the Timiryazevskiy District Court a residence order was always
made in favour of the mother. The judge dismissed the applicant’s
objection.
25. On 18 January 2011 the Timiryazevskiy District Court allowed a
request lodged by the applicant for the proceedings to be stayed; it
accordingly stayed the residence order proceedings pending the criminal
proceedings against Ch.
26. On 26 January 2011 the Mytishchi City Court upheld Ch.’s criminal
conviction on appeal. The conviction acquired binding force.
27. On 8 February 2011 the Moscow City Court quashed on appeal the
decision of 26 April 2010 ordering the interim measure. It found that the
interim measure had been unconnected to the subject matter of the case and
had therefore been disproportionate. There had been no evidence that the
execution of the forthcoming judgment might be complicated or impossible.
By applying the interim measure, the judge had prejudged the case. The
City Court remitted Ch.’s request for an interim measure for fresh
examination by the Timiryazevskiy District Court, which rejected it on
1 April 2011 as unsubstantiated.
28. Meanwhile, on 16 March 2011 the childcare authority instructed Ch.
that she should stop preventing A. from seeing his paternal family.
29. On 30 March 2011 the Timiryazevskiy District Court granted the
divorce of the applicant and Ch.
 LEONOV v. RUSSIA JUDGMENT 5

30. On 7 April 2011 the Moscow City Court, acting by way of

supervisory review, quashed the judgment of 26 January 2011 upholding
Ch.’s conviction and remitted the criminal case for fresh examination by the
appellate court.
31. On 12 April 2011 the Timiryazevskiy District Court resumed the
residence order proceedings and held a hearing.
32. During the hearings the applicant stated that he possessed a
comfortable flat in a safe and ecologically clean neighbourhood, with parks
and schools in the vicinity. Before the applicant’s separation from his
former wife, A. had attended a nursery school in that neighbourhood. The
applicant also had a countryside residence. Being the owner of his own
business, he had flexible working hours and could therefore devote a lot of
time to his son. He had always paid child maintenance and his income
permitted him to give the child a good education. There was a strong
personal attachment between the applicant and his son; A. was also very
attached to his paternal family – especially his cousin, who was of the same
age. The applicant had positive character references: he was calm, polite
and affectionate towards his son. By contrast, Ch. was aggressive and
irresponsible. She had physically assaulted him in front of A. and had been
criminally convicted in connection with that incident. She had also been
convicted of the administrative offence of leaving the scene of a road
accident and had had her driving licence suspended for a year. As could be
seen from the documents submitted by the applicant to the court, she lived
in a severely polluted and criminally unsafe neighbourhood in the vicinity
of an oil refinery plant and a prison. Moreover, Ch. shared her flat with her
mother, who smoked and abused alcohol and could therefore have a bad
influence on A. Until recently, Ch. had prevented the applicant and his
relatives from seeing A., and currently she allowed occasional contact only.
33. The applicant’s mother and sister stated that Ch. prevented them
from seeing A. Ch. was often aggressive and occasionally abused alcohol.
All her family smoked, even in the child’s presence. A. was very attached to
his father and obviously suffered from their forced separation.
34. Ch. stated that the applicant would have no time to take care of the
child as he was managing a business, was following a distance-learning
course at a university and had earlier stated his intention of building a
countryside residence. Ch. had a higher education and was working. The
alleged defects in her character and behaviour to which the applicant had
referred had been confirmed by his relatives only.
35. A teacher from A.’s current nursery school stated that she had seen
the applicant once and that he had made a bad impression on her. On
30 April 2010 he had come to the nursery school and had told her that he
wanted to take A. home with him. When she had refused to let him in,
referring to the court order prohibiting any contact between them, he had
6 LEONOV v. RUSSIA JUDGMENT

become agitated and had talked about taking A. away with him when the
children went out for a walk.
36. The director of the nursery school gave a similar description of the
incident. She said that the applicant had become angry when he had learned
of the court decision ordering the interim measure, had asked for a copy of
that measure and had called his lawyer.
37. The following documents were submitted by the parties for the
court’s examination: (i) the applicant’s and Ch.’s pay statements,
(ii) documents showing that the district where Ch. lived was among the
most polluted districts of Moscow, (iii) documents from the criminal case
file against Ch., and (iv) documents relating to A.’s medical history and
A.’s pre-school education both at the applicant’s place of residence prior to
his parents’ separation and at the mother’s place of residence after the
separation.
38. On 12 April 2011 the Timiryazevskiy District Court granted Ch.’s
application for a residence order in her favour and dismissed a similar
application by the applicant. It held as follows:
“Having examined the entirety of the evidence, the court finds that there is a very
serious conflict between the parties as regards the child’s residence arrangements, ...
which has a negative impact on the child by creating a psychologically unhealthy and
tense atmosphere around him. At the same time, each parent, taken alone, possesses
moral, personal and other qualities rendering each of them capable of raising a small
child. According to the expert report, the child is equally attached to both of them. It
also follows from the expert report that the parents’ improper behaviour towards each
other may have negative psychological consequences for the child.
The court notes that [Ch.’s] criminal conviction for assaulting [the applicant] has not
yet acquired binding force. It however takes into account the criminal charges brought
against her. It is clear that the incident was prompted by the personal hostility
[between the applicant and Ch.] caused by a disagreement on the issue of their son’s
residence and education. In the court’s opinion, these charges cannot constitute a
decisive reason for making a residence order in favour of the father. There is an
accumulation of reasons on the basis of which the court considers that the child should
live with the mother.
In the present case the court is guided by the best interests of child [A.], who at the
moment of the judgment has not yet reached the age of four years old and who has an
established way of life. For a long time the child has lived with his mother at her place
of residence and has attended a nursery school there. Given his age, a change of
residence and a separation from the mother will have a negative impact on the child’s
general and psychological state.
The court considers that [the applicant’s] arguments that the district where [Ch.]
lives is polluted and that close members of her family smoke cannot serve as a basis
for making a residence order in favour of the father because, as mentioned above, a
change of residence will have a negative impact on the child. [The applicant’s]
arguments that he has better living conditions and a better financial situation than
[Ch.] are not decisive for granting a residence order to the father either.
The childcare authorities are unanimous that it is in [A.’s] interests to live with the
mother. The court agrees with that finding.
 LEONOV v. RUSSIA JUDGMENT 7

The court also finds that [the applicant’s] request for a residence order is at the
moment premature. [The applicant] is entitled to apply for a reconsideration of the
issue after A. has reached a more conscious age [по достижению сыном более
сознательного возраста].”
39. The applicant appealed, repeating the arguments he had raised before
the District Court. He relied, in particular, on the right to equality between
spouses.
40. On 30 June 2011 the Moscow City Court upheld the judgment of
12 April 2011 on appeal, finding that it had been lawful, well-reasoned and
justified.
41. On 6 December 2011 the Lyublinskiy District Court of Moscow
found it established that Ch. was preventing the applicant and his family –
namely his mother, brother and sister – from seeing A. It held that A. was
entitled to maintain contact with his father and his paternal family and
determined the contact schedule as follows. The applicant should be able to
have contact with A. (i) on the first and third weekend of each month from
10 a.m. on Saturday until 8 p.m. on Sunday at the applicant’s place of
residence, in the mother’s absence and with the right to attend outdoor
activities for children, and (ii) for two weeks during the summer and two
weeks during the winter on dates agreed with the mother, provided that the
child is in good health, with the right to leave Moscow and to go abroad.
The applicant’s mother, brother and sister should be able to have contact
sessions with A. from 11 a.m. until 1 p.m. on the first and third Saturdays of
each month at the applicant’s place of residence.
42. On an unspecified date the Moscow City Court upheld that judgment
on appeal.
43. On 2 February 2012 the Mytischy Town Court upheld Ch.’s
conviction for assault and battery on appeal.

II. RELEVANT DOMESTIC LAW

44. The Family Code provides that in the event of the parents’
separation, a child’s residence arrangements shall be determined by an
agreement between them. If no such agreement can be reached, the child’s
residence arrangements are determined by a court order, having regard to
the child’s best interests and his/her opinion on the matter. In particular, the
court must take into account the child’s attachment towards each of the
parents and siblings, the relationship between the child and each of the
parents, the child’s age, the parents’ moral and other personal qualities and
the possibilities each of them have for creating conditions for the child’s
upbringing and development (in the light of such considerations as each
parent’s occupation, employment schedule, and financial and family
situation) (Article 65).
8 LEONOV v. RUSSIA JUDGMENT

45. The parent residing separately from the child is entitled to maintain
contact with the child and to participate in his or her upbringing and
education. The parent with whom the child resides may not hinder the
child’s contact with the other parent, unless such contact undermines the
child’s physical or psychological health or moral development. The parents
may reach a written agreement about the manner of exercise of parental
authority by the parent residing separately from the child. If the parents are
unable to come to an agreement, any dispute between them shall be decided
by a court after an application by the parents (or one of the parents), with
the participation of the childcare authorities. If one of the parents does not
comply with the court decision, measures provided by the civil procedural
law may be taken against him or her. If that parent systematically refuses to
comply with the court decision, a court may, after an application by the
parent residing separately from the child, transfer the child’s residence to
that parent, taking into account the child’s interests and the child’s opinion
(Article 66, as in force at the material time).
46. A child is entitled to maintain contact with his parents, grandparents,
brothers, sisters and other relatives. The parents’ divorce or separation or
the annulment of their marriage shall have no bearing on the child’s rights.
In particular, in the event of the parents residing separately, the child is
entitled to maintain contact with both of them (Article 55 § 1).
47. A child is entitled to express his 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 (Article 57).
48. The 2002 Code of Civil Procedure (hereafter “the CCP”), as in force
at the material time, provided that a judge might apply interim measures at
the request of participants in the proceedings. Interim measures might be
applied in a case where the failure to take such measures might complicate
or make impossible the execution of the forthcoming judgment
(Article 139).
49. Possible interim measures might include a prohibition on
undertaking specific actions (Article 140 § 1). Interim measures had to be
proportionate to the claim in question (Article 140 § 3 of the CCP)
50. A request for interim measures had to be examined on the day of its
receipt by the court, without notifying the respondent or other participants
to the proceedings (Article 141 of the CCrP).
 LEONOV v. RUSSIA JUDGMENT 9

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

51. The applicant complained that the granting of a residence order in

respect of his son in favour of the boy’s mother and the interim measure
prohibiting him from contacting his son pending the residence order
proceedings had violated his right to respect for his family life. He relied on
Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
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

52. The Government submitted that the complaint about the interim
measure fell outside the Court’s competence ratione materiae. They
referred to the decision in the case of B.R. v. Poland ((dec.), no. 43316/98,
7 June 2001), in which the Court had found that interlocutory proceedings
relating to an interim measure concerning the provisional regulation of the
applicant’s contacts with his daughter pending the main divorce proceedings
did not involve the determination of the applicant’s civil rights or
obligations within the meaning of Article 6 § 1 of the Convention.
53. The Court reiterates that mutual enjoyment by parent and child of
each other’s company constitutes a fundamental element of family life, and
domestic measures hindering such enjoyment amount to an interference
with the right protected by Article 8 of the Convention (see, among many
others, S.I. v. Slovenia, no. 45082/05, § 68, 13 October 2011, and Gobec
v. Slovenia, no. 7233/04, § 128, 3 October 2013, which both concerned
interim decisions setting out provisional contact arrangements). It therefore
considers that Article 8 was applicable to the interim order proceedings
concerning contact between the applicant and his son. The respondent
Government’s objection ratione materiae is accordingly dismissed.
54. The Court further notes that it is not open to it to set aside the
application of the six-month rule solely because a Government have not
made a preliminary objection to that effect (see Blečić v. Croatia [GC],
no. 59532/00, § 68, ECHR 2006-III). Therefore, the fact that the
Government did not raise any alleged failure by the applicant to comply
with the six-month rule does not prevent the Court from ruling on the issue
(see Fábián v. Hungary [GC], no. 78117/13, § 90, ECHR 2017 (extracts).
10 LEONOV v. RUSSIA JUDGMENT

The Court will therefore examine whether the applicant’s complaint relating
to the interim measure complied with the six-month rule even though the
Government did not raise an objection as to non-compliance with the
six-month rule.
55. The Court notes that the interim measure was quashed on appeal on
8 February 2011 and that the interim measure proceedings were finally
discontinued on 1 April 2011. The applicant lodged his application with the
Court on 9 December 2011, that is to say more than six months later. The
Court considers that, with regard to the interim measure, the applicant did
not comply with the six-month time-limit. It follows that this complaint has
been introduced out of time and must be rejected, in accordance with
Article 35 §§ 1 and 4 of the Convention.
56. The Court furthermore notes that the complaint about the residence
order is not manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It also notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.

B. Merits

1. Submissions by the parties

(a) The applicant
57. The applicant submitted that the domestic courts had granted a
residence order in favour of his ex-wife despite the fact, confirmed by the
evidence examined at the hearing, that she had a lower income, lived in a
polluted and criminally unsafe district and had bad character references. In
particular, she had been convicted of a criminal offence for assaulting the
applicant; the assault had happened in front of the child. She had, moreover,
prevented the applicant from seeing his son for many months. Her mother,
who lived together with her, smoked and abused alcohol, as confirmed by
witnesses, who had been warned about criminal liability in the event of
perjury. It was also significant that, as confirmed by the documents
produced at the hearing, the applicant had flexible working hours and could
therefore devote more time to A. than the boy’s mother, who had no
flexibility in her working hours. By disregarding those factors, the domestic
courts had taken a decision which had not been based on the best interests of
the child. The applicant claimed that the sole reason for granting a residence
order in favour of the mother had been the judge’s belief, evident from her
statements at the hearings, that a small child should be raised by the mother
rather than by the father.
58. The applicant also argued that the possibility, which the domestic
courts referred to, of reconsidering the residence arrangements after the
child had reached “a more conscious age” was illusory. Given that the
child’s continuing residence with the mother had been one of the main
 LEONOV v. RUSSIA JUDGMENT 11

reasons invoked by the domestic courts for their decision to grant the
residence order in favour of the mother, that reason would only get stronger
with the passage of time.
59. Lastly, the applicant submitted that the total length of the residence
order proceedings had been excessive. The proceedings had lasted for one
year and eight months. The applicant had in no way contributed to their
length. By lodging motions and by appealing against some procedural
decisions, he had exercised his procedural rights with the aim of effectively
presenting his case and ensuring its fair and thorough examination. As
regards his request for the proceedings to be suspended pending the criminal
proceedings against A.’s mother, he considered that the outcome of the
criminal proceedings had been relevant to the issue of A.’s residence.
(b) The Government
60. The Government accepted that granting a residence order in favour
of the mother in respect of the applicant’s son had constituted an
interference with his right to respect for his family life. However, the
interference had been lawful, had pursued a legitimate aim and had been
necessary in a democratic society.
61. As regards the length of the residence order proceedings, the
Government submitted that the proceedings had lasted for about one year
and two months. There had been no periods of inactivity attributable to the
authorities. By contrast, the applicant had contributed to the length of the
proceedings by lodging his claim with the wrong court, by lodging appeals
against various procedural decisions and by requesting a suspension of the
proceedings pending the criminal proceedings against his wife. In total, the
length of the proceedings had been shorter than in the cases examined by
the Court (they referred to Ribić v. Croatia, no. 27148/12, 2 April 2015,
where the proceedings had lasted for seven years and eight months;
Mihailova v. Bulgaria, no. 35978/02, 12 January 2006, where the
proceedings had lasted for about two years and a half and where the Court
had found no violation of Article 8; Ahrens v. Germany, no. 45071/09,
22 March 2012, where the proceedings had lasted for three years and seven
months and where the Court had not found a violation of Article 8 either;
and Diamante and Pelliccioni v. San Marino, no. 32250/08, 27 September
2011, where the proceedings had lasted for three years). Moreover, the
present case was different from Ribić, where the applicant had seen his son
for three times only during the proceedings, by the end of which he had
reached the age of majority. In the applicant’s case the proceedings had
ended when the child was three years and eight months old; it could not
therefore be said that the passage of time had resulted in a de facto
determination of the matter.
62. Lastly, as regards the decision to grant the residence order in favour
of the mother, the Government submitted that it had been lawful and had
12 LEONOV v. RUSSIA JUDGMENT

been based on the best interests of the child. As the parents had been unable
to agree about the child’s residence arrangements, the domestic courts had
had no choice but to grant the residence order in favour of one or other of
them. The judge had ordered an expert psychological report and had also
taken into account the opinion of the relevant childcare authorities. The
judge had also examined the parents’ income, living conditions and working
schedule. The applicant had not proved that his financial situation had been
better than that of his ex-wife or that his working schedule had been indeed
flexible. His arguments regarding his superior living conditions (because he
lived in a less polluted district of Moscow than his ex-wife) were
unconvincing as, in the Government’s opinion, all districts in Moscow were
equally polluted. The applicant’s and his ex-wife’s flats were comparable in
size and were both suitable for a small child. The applicant’s allegations
regarding the dissolute behaviour of his ex-wife’s family had been
confirmed only by the applicant’s mother and sister, who were witnesses
with an interest in the proceedings. By contrast, the applicant’s
unsatisfactory behaviour towards the teacher at A.’s nursery school had
been confirmed by independent witnesses. The Government further
submitted that in 2014 and 2015 the applicant had been fined for traffic
offences several times. As regards his ex-wife’s criminal conviction, which
had not been final at the time, the judge had considered that it could not
constitute a decisive reason for granting a residence order in favour of the
applicant. The judge’s decision not to wait until the conviction became final
had been justified by the need to settle the child’s residence arrangements as
quickly as possible. The applicant’s allegations that the judges had been
biased against him were unfounded. The judge had found that each of the
parents had been capable of taking care of the child and that the child had
been equally attached to both of them. The main reasons for granting the
residence order in favour of the mother had been the child’s extremely
young age – three years – and the fact that he had already lived with his
mother for some time and had an established way of life. A change in that
way of life and a separation from the mother could be traumatic for him.
The applicant’s procedural rights had been respected.
63. The Government further submitted that the decision to grant the
residence order in favour of the mother had not restricted the applicant’s
parental authority or his right to participate in the child’s upbringing and
education. As mentioned by the domestic courts, he was entitled to apply
for a reconsideration of the residence arrangements after the child had
reached a “more conscious age”; in particular, the child’s opinion had to be
taken into account after the child had reached the age of ten years old. The
applicant and his family had been granted contact rights by a judicial order.
Russian law provided for a mechanism to deal with situations where a
judicial contact order had not been complied with (see paragraph 45 above).
There was, however, no evidence that the applicant’s wife had not complied
 LEONOV v. RUSSIA JUDGMENT 13

with the judicial contact order. According to the statement that she had
given in July 2015, her relationship with the applicant had improved and
contact between A. and his father and his paternal family had been even
more frequent than that ordered by the court. The domestic authorities had
therefore taken all reasonable measures to ensure that he could maintain his
relationship with his son.

2. The Court’s assessment

(a) General principles
64. In determining whether the refusal of custody or access was justified
under Article 8 § 2 of the Convention, the Court has to consider whether, in
the light of the case as a whole, the reasons adduced to justify this measure
were relevant and sufficient. Undoubtedly, consideration of what lies in the
best interests of the child is of crucial importance in every case of this kind.
Moreover, it must be borne in mind that the national authorities have the
benefit of direct contact with all the persons 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 child
custody and access issues, but rather to review, in the light of the
Convention, the decisions taken by those authorities in the exercise of their
power of appreciation (see Sahin v. Germany [GC], no. 30943/96, § 64,
ECHR 2003-VIII; Sommerfeld v. Germany [GC], no. 31871/96, § 62,
ECHR 2003-VIII (extracts); C. v. Finland, no. 18249/02, § 52, 9 May 2006;
and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014). To that end the
Court must ascertain whether the domestic courts conducted an in-depth
examination of the entire family situation and of a whole series of factors, in
particular of a factual, emotional, psychological, material and medical
nature, and made a balanced and reasonable assessment of the respective
interests of each person, with a constant concern for determining what the
best solution would be for the child (see Neulinger and Shuruk
v. Switzerland [GC], no. 41615/07, § 139, ECHR 2010, and Antonyuk
v. Russia, no. 47721/10, § 134, 1 August 2013).
65. The margin of appreciation to be accorded to the competent national
authorities will vary in accordance with the nature of the issues and the
importance of the interests at stake. Thus, the Court has recognised that the
authorities enjoy a wide margin of appreciation, in particular when deciding
on custody. However, stricter scrutiny is called for as regards any further
limitations, such as restrictions placed by those authorities on parental rights
of access, and as regards any legal safeguards designed to secure an
effective protection of the right of parents and children to respect for their
family life. Such further limitations entail the danger that the family
relations between a young child and one or both parents would be
14 LEONOV v. RUSSIA JUDGMENT

effectively curtailed (see Sahin, cited above, § 65, and Sommerfeld, cited
above, § 63).
66. Article 8 requires that the domestic authorities should strike a fair
balance between the interests of the child and those of the parents and that,
in the balancing process, particular importance should be attached to the
best interests of the child, which, depending on their nature and seriousness,
may 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 Sahin, cited above, § 66, and Sommerfeld,
cited above, § 64).
67. The Court cannot satisfactorily assess whether the reasons advanced
by the domestic courts were “sufficient” for the purposes of Article 8 § 2
without at the same time determining whether the decision-making process,
seen as a whole, was fair (see Sahin, cited above, § 68, and Sommerfeld,
cited above, § 66). While Article 8 of the Convention contains no explicit
procedural requirements, the decision-making process involved in measures
of interference must be fair and such as to ensure due respect for the
interests safeguarded by Article 8. The Court must therefore determine
whether, having regard to the circumstances of the case and notably the
importance of the decisions to be taken, the applicant has been involved in
the decision-making process to a degree sufficient to provide him with the
requisite protection of his interests (see Z.J. v. Lithuania, cited above, § 100,
with further references).
68. Lastly, the Court considers that in conducting its review in the
context of Article 8 it may also have regard to the length of the local
authority’s decision-making process and of any related judicial proceedings.
In cases of this kind there is always the danger that any procedural delay
will result in the de facto determination of the issue submitted to the court
before it has held its hearing. And an effective respect for family life
requires that future relations between parent and child be determined solely
in the light of all relevant considerations and not by the mere passage of
time (see W. v. the United Kingdom, 8 July 1987, § 65, Series A no. 121;
Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003; and
Z.J. v. Lithuania, cited above, § 100).
(b) Application to the present case
69. The Court considers that the decision to make a residence order in
favour of the mother amounted to an interference with the applicant’s right
to respect for his family life (see Antonyuk v. Russia, no. 47721/10, § 119,
1 August 2013; see also G.B. v. Lithuania, no. 36137/13, § 87, 19 January
2016). It has not been disputed between the parties that the interference had
a basis in national law and pursued the legitimate aim of protecting the
rights of others, namely of A. and Ch. It remains to be examined whether
the interference was “necessary in a democratic society”.
 LEONOV v. RUSSIA JUDGMENT 15

70. Before turning to the analysis of the reasons advanced by the

domestic courts, it is important to note that the scope of the order was
limited to determining where A. would live; it did not affect A.’s legal
relationship with the applicant, and nor did it take away the applicant’s
parental authority. It is also significant that the applicant was subsequently
granted contact rights.
71. The Court accepts that in reaching decisions on child-care measures,
national authorities and courts are often faced with a task that is extremely
difficult. It does not lose sight of the fact that the national authorities had no
other choice but to make a residence order in favour of one of the two
separated parents, as the domestic law does not provide for the possibility to
make a shared residence order (see Antonyuk, cited above, § 121).
72. Having examined the domestic courts’ decisions at issue (see
paragraphs 38 and 40 above), the Court finds nothing to doubt that they
were based on the best interests of the child. The domestic courts found that
A. had not yet reached four years of age and had lived with his mother at
her place of residence for a long time and attended a nursery school there.
They considered that, given his young age, a change of residence and a
separation from the mother would have a negative impact on his
psychological state. There is nothing to indicate that the findings reached by
the domestic courts, which had the benefit of direct contact with all the
persons concerned, were unreasonable and thus fell outside their wide
margin of appreciation. Given that the national authorities are in principle
better placed than an international judge to evaluate the evidence before
them, it is not the Court’s task to take their place in establishing and
assessing the facts and deciding what is in the best interests of the child in
the present case.
73. The Court is not convinced by the applicant’s argument that the
residence order was based on the judge’s belief that a small child was to be
always raised by the mother. It notes that the residence order was based on
an assessment of the particular circumstances of the case.
74. The Court further notes that the decision at issue was reached
following adversarial proceedings in which the applicant was placed in a
position enabling him to put forward all arguments in support of his
application for a residence order in his favour and he also had access to all
relevant information that was relied on by the courts.
75. As regards the applicant’s complaint about the allegedly excessive
length of proceedings, the Court considers the applicant’s own procedural
activity influenced the overall duration of proceedings (see, for similar
reasoning, Gobec, cited above, § 144). He lodged an appeal against the
decision ordering an expert examination, thereby delaying its
commencement. He also asked for the proceedings to be stayed pending the
criminal proceedings against his ex-wife. It is true that there were also
several delays in the proceedings attributable to the authorities (in
16 LEONOV v. RUSSIA JUDGMENT

particular, an unexplained three-month delay in obtaining an expert opinion

after the decision ordering it had been upheld on appeal and a three-month
delay in resuming the proceedings after Ch.’s criminal conviction entered
into force). However, the Court considers that overall the domestic courts
appear to have dealt with the proceedings, which lasted slightly less than
one year and four months at two levels of jurisdiction, with the requisite
diligence.
76. The Court concludes from the above that the decision-making
process was fair in so far as it allowed the applicant to present his case fully
and that the reasons advanced by the domestic courts were relevant and
sufficient. Accordingly, by making a residence order in favour of the
mother, the domestic courts did not overstep their wide margin of
appreciation.
77. There has been therefore no violation of Article 8 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,

TAKEN IN CONJUNCTION WITH ARTICLE 8

78. The applicant further complained that the decision to grant a

residence order in respect of his son in favour of the boy’s mother amounted
to discrimination on grounds of sex. He relied on Article 14 of the
Convention, taken in conjunction with Article 8. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”

A. Admissibility

79. As the Court has consistently held, Article 14 complements the other
substantive provisions of the Convention and its Protocols. It has no
independent existence since it has effect solely in relation to “the enjoyment
of the rights and freedoms” safeguarded thereby. Although the application
of Article 14 does not presuppose a breach of those provisions – and to this
extent it is autonomous – there can be no room for its application unless the
facts at issue fall within the ambit of one or more of them. The prohibition
of discrimination enshrined in Article 14 thus extends beyond the
enjoyment of the rights and freedoms which the Convention and the
Protocols thereto require each State to guarantee. It applies also to those
additional rights, falling within the general scope of any Convention Article,
for which the State has voluntarily decided to provide. This principle is well
entrenched in the Court’s case-law (see, among many other authorities, E.B.
v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008).
 LEONOV v. RUSSIA JUDGMENT 17

80. It has not been disputed between the parties that the case falls within
the ambit of Article 8 of the Convention. Indeed, the Court has found that
the contested decisions amounted to an interference with the applicant’s
right to respect for his family life (see paragraph 69 above). It follows that
Article 14 of the Convention, taken in conjunction with Article 8, is
applicable in the present case
81. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be declared
admissible.

B. Merits

1. Submissions by the parties

82. The applicant submitted that the issuance of a residence order in
respect of his son in favour of the boy’s mother – despite the fact that she
had a criminal record, bad living conditions and a dissolute close family –
had shown the inequality between men and women in the sphere of
childcare which prevailed in Russia. He claimed that there existed an
assumption in favour of mothers which was very difficult to rebut, as had
been evident from the judge’s statements at the hearings (see paragraph 24
above).
83. The Government submitted that both parents had equal rights under
Russian law; the mother had not been entitled to any preferential treatment.
In particular, both parents had had the right to apply for a residence order
and the courts had had to decide the issue on the basis of the best interests
of the child. There were many examples in domestic practice of a residence
order being granted in favour of the father (they referred, in particular, to
the case of Gruzdeva v. Russia (dec.), no. 13553/09, § 71, 8 July 2014). In
the present case the domestic courts had examined all the circumstances of
the case and decided that it was in the best interest of the child to live with
the mother. They had found that, given the child’s young age and the fact
that he had lived with his mother for some time, a separation from the
mother would have a negative impact on his psychological state.

2. The Court’s assessment

84. It is the Court’s established case-law that in order for an issue to
arise under Article 14 there must be a difference in the treatment of persons
in relevantly similar situations. Such a difference of treatment is
discriminatory if it has no objective and reasonable justification; in other
words, if it does not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the aim
sought to be realised. The Contracting State enjoys a margin of appreciation
18 LEONOV v. RUSSIA JUDGMENT

in assessing whether and to what extent differences in otherwise similar

situations justify a different treatment. The scope of the margin of
appreciation will vary according to the circumstances, the subject matter
and its background, but the final decision as to the observance of the
Convention’s requirements rests with the Court (see Burden v. the United
Kingdom [GC], no. 13378/05, § 60, and Konstantin Markin v. Russia [GC],
no. 30078/06, §§ 125 and 126, ECHR 2012 (extracts)).
85. Very weighty reasons need to be put forward before a difference in
treatment on the ground of sex can be regarded as compatible with the
Convention (see Schuler-Zgraggen v. Switzerland, 24 June 1993, § 67,
Series A no. 263; Zaunegger v. Germany, no. 22028/04, § 51, 3 December
2009; and Buchs v. Switzerland, no. 9929/12, § 67, 27 May 2014).
86. In the case at hand, the applicant complained that he had been
discriminated against on account of his sex, in breach of Articles 8 and 14
of the Convention, in that the residence order in respect of his child had
been made in favour of the child’s mother.
87. The Court observes at the outset that Russian law does not make any
distinction between the sexes, both men and women being equally eligible
to obtain a residence order in respect of their child, irrespective of the
child’s age. The domestic courts must evaluate all the relevant
circumstances and the parties’ parenting abilities in order to find the most
appropriate solution in the child’s best interests (see paragraph 44 above).
The applicant, however, argued that the decisions in his case had been based
on a general assumption prevailing in Russia that it was in the interest of
children under a certain age to reside with the mother rather than the father
(see paragraphs 24 and 82 above).
88. The Court notes that the residence order was based on an assessment
of the best interests of the child in the particular circumstances of the case,
rather than on a general assumption in favour of mothers. In particular, the
domestic courts found that the child had lived with his mother at her place
of residence for a long time. They considered that, given his young age and
the length of his residence with the mother, a change to his established way
of life would have a negative impact on his psychological state.
89. The Court is therefore satisfied that, as regards the examination of
the application for a residence order, no difference of treatment on account
of sex existed either in the law or in the decisions applying it in the
applicant’s case.
90. There has accordingly been no violation of Article 14 of the
Convention, taken together with Article 8.
 LEONOV v. RUSSIA JUDGMENT 19

III. ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL No. 7

91. The applicant further complained that the decision to grant a

residence order in respect of his son in favour of the boy’s mother had
violated his right to equality between spouses. He relied on Article 5 of
Protocol No. 7, which reads as follows:
“Spouses shall enjoy equality of rights and responsibilities of a private law character
between them, and in their relations with their children, as to marriage, during
marriage and in the event of its dissolution. This Article shall not prevent States from
taking such measures as are necessary in the interests of the children.”
92. The Government submitted that the applicant had not exhausted
domestic remedies regarding his claim under Article 5 of Protocol No. 7
because he had not invoked that Article before the domestic courts.
93. The Court observes that the applicant relied on the right to equality
between spouses in his appeal submissions (see paragraph 39 above).
Accordingly, the Court rejects the Government’s objection as to the non-
exhaustion of domestic remedies.
94. The Court reiterates that it has previously decided that Article 5 of
Protocol No. 7 essentially imposes a positive obligation on States to provide
a satisfactory legal framework under which spouses have equal rights and
obligations concerning such matters as their relations with their children. It
is not concerned with the way in which the national courts applied it (see
Iosub Caras v. Romania, no. 7198/04, §§ 56 and 57, 27 July 2006, with
further references).
95. In the present case, the applicant does not question the legislative
framework. His criticism only concerns the way in which the national courts
applied it. The Court finds no indication that the law in question violates the
equality clause provided in Article 5 of Protocol No. 7 (see paragraph 87
above).
96. It follows that this complaint is manifestly ill-founded and must be
rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares, by a majority, the complaints that the decision to grant the
residence order in respect of the applicant’s son in favour of the boy’s
mother had violated his right to respect for his family life and had,
moreover, amounted to discrimination on grounds of sex admissible and
the remainder of the application inadmissible;

2. Holds, by six votes to one, that there has been no violation of Article 8 of
the Convention;
20 LEONOV v. RUSSIA JUDGMENT

3. Holds, by six votes to one, that there has been no violation of Article 14
of the Convention taken in conjunction with Article 8.

Done in English, and notified in writing on 10 April 2018, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helena Jäderblom

Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the separate opinion of Judge Serghides is annexed to
this judgment.

H.J.
F.A.
 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION 21

DISSENTING OPINION OF JUDGE SERGHIDES

1. This case concerns a child-residence dispute. The applicant complains
about the making of a residence order in respect of his son (A.) in favour of
the boy’s mother (Ch.). He also complains about the interim order
prohibiting him from contacting his son pending the residence proceedings.
He relies on Article 8 of the Convention, Article 14 of the Convention in
conjunction with Article 8, and Article 5 of Protocol No. 7 to the
Convention. To my regret, the complaint regarding the interim order under
Article 8 and the complaint under Article 5 of Protocol No. 7 were
dismissed by the Court (by a majority) as manifestly ill-founded, and thus
inadmissible, leaving no room for an examination on their merits.
2. I agree with the majority that the decision to make a resident order in
favour of the mother amounted to an interference with the applicant’s right
to respect for his family life (see paragraph 69 of the judgment).
3. Where I respectfully disagree with them, however, is that, under the
circumstances of the case, there has been no violation of Article 8 and of
Article 14 read in conjunction with Article 8.

I. Complaint under Article 8 of the Convention

4. It is important to note that the scope of the residence order in favour

of the mother (Ch.) was limited to determining where A. would live; it did
not affect A.’s legal relationship with the applicant, nor did it take away the
applicant’s parental authority. It is also significant that the applicant was
subsequently granted contact rights.
5. According to the Court’s case-law, in reaching decisions on child-care
measures, national authorities and courts are often faced with a task that is
extremely difficult. Equally, the Court does not lose sight of the fact that the
national authorities had no other choice but to grant a residence order in
favour of one of the two separated parents, as the domestic law does not
provide for the possibility of granting a shared residence order (see
Antonyuk v. Russia, no. 47721/10, § 121, 1 August 2013).
6. It is not the Court’s task to take the place of the domestic authorities
in deciding in whose favour a residence order should be given in respect of
a child of divorced parents. However, in this sphere, the Court’s review is
not limited to ascertaining whether a respondent State exercised its
discretion reasonably, carefully and in good faith; it must determine whether
the reasons adduced by the domestic courts in child residence proceedings
were relevant and sufficient (see Gruzdeva v. Russia (dec.), no. 13553/09,
§ 71, 8 July 2014). In particular, the Court has competence to ascertain
whether the domestic courts, when taking such a decision, conducted an
in-depth examination of the entire family situation and a whole series of
relevant factors and made a balanced and reasonable assessment of the
22 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION

respective interests of each person, with a constant concern for determining

what the best solution would be for the child (see the case-law cited in the
General Principles section of the judgment). A failure to make a sufficiently
thorough examination will amount to a violation of Article 8 (see Antonyuk,
cited above, § 146). By contrast, if the domestic courts examined the
question at issue with care and in line with the principles laid down by the
Court’s case-law, the Court would require very strong reasons to substitute
its own assessment for that of the domestic courts.
7. In line with the principles and case-law outlined above, I will
therefore examine whether the domestic authorities in the present case made
an in-depth examination of the entire family situation and of all relevant
factors. The domestic authorities, while noting that both parents possessed
moral, personal and other qualities rendering them capable of raising a small
child and that the child was equally attached to both of them (see
paragraphs 21 and 38 of the judgment), gave two reasons for their decision
to grant a residence order in favour of the mother. They considered, firstly,
that by reason of his very young age, A. should live with his mother.
Secondly, they referred to the fact that A. had lived with his mother for
some time and that a change to his established way of life would have a
negative impact on his psychological state. I will examine the two reasons
in turn.
8. As regards the first argument that a child below a certain age should
live with the mother, this was most fully set out in the childcare authority’s
report of 22 June 2010 (see paragraph 15 of the judgment). The report stated
that it was particularly important for a child to be raised by the mother until
the age of five or six and that a lack of maternal care during that period
could result in the child developing “stubbornness, surliness, hysterical
reactions and inadequate social adaptation”. It is significant that the report
was formulated on the basis of general assumptions, without any reference
to the particular circumstances of the case and without any consideration of
the situation of the family in question or the needs of A., the child in
question. Although they based their decision on that report to a significant
degree, the domestic courts failed to assess it and merely endorsed its
findings. They made no meaningful attempts to verify whether the report
had been prepared after a thorough examination of the entire family
situation and of all relevant factors.
9. Nor did the domestic courts themselves (see paragraphs 38 and 40 of
the judgment), while advancing A.’s young age as the main reason for the
decision to grant the residence order to the mother, refer to any
circumstances of a factual, emotional, psychological, material or medical
nature specifically concerning A. and confirming his stronger attachment to
the mother or her better parental abilities. They limited their examination of
this issue to stating that the applicant’s request for a residence order was
premature because the child had not reached “a conscious age”. It is also
 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION 23

revealing that even before beginning its examination of the case, in its
decision on the interim measure, the district court forbade the applicant
from contacting his son, finding that such contact “might complicate or
make impossible the execution of the forthcoming judgment” (see
paragraph 11 of the judgment). I cannot but conclude that the domestic
courts simply assumed from the very outset that women were able to take
better care of small children and that it was therefore always in the interests
of small children to reside with the mother rather than the father. Such an
assumption fails to take into account the variety of family situations and
their relevance for the assessment of the best interest of the child, and
moreover indicates differing treatment on the basis of sex. Article 8 cannot,
however, be interpreted as granting a preferential right to obtain child
custody to one or other of the parents (see Donát v. the Czech Republic
(dec.), no. 43252/98, 19 October 1999), irrespective of the child’s age.
10. I will now turn to the second reason advanced by the childcare
authorities and the courts – namely that a change of residence could have a
negative impact on A.’s psychological state because he had lived with his
mother at her place of residence for some time and attended a nearby
nursery school (see paragraphs 23 and 38 of the judgment). It is to be noted
that the domestic authorities did not rely on any psychological or other
expert evidence in support of their finding that a change of residence would
be traumatic for A. It is significant that the experts found that after living
with the mother, and separately from the father, for some time A. was still
equally attached to both parents (see paragraph 21 of the judgment). Nor did
the domestic authorities refer to any evidence showing that A. was more
socially integrated at the mother’s place of residence (where he had recently
moved after his parents’ separation) than at the father’s place of residence
(where he had lived and attended a nursery school during the first years of
his life). It therefore appears that the domestic authorities judged that there
was a risk of psychological trauma solely on the basis of the mere passage
of time spent with the mother after the separation and while the residence
order proceedings were pending. As the Court has held on many occasions,
effective respect for family life requires that future relations between parent
and child should not be determined by the mere passage of time (see the
case-law cited in the General Principles section of the judgment). However
this is what happened in the present case (compare Jucius and Juciuvienė
v. Lithuania, no. 14414/03, § 32, 25 November 2008).
11. As the Court has also held in many cases concerning a person’s
relationship with his or her child, the procedural requirements implicit in
Article 8 establish a duty to exercise exceptional diligence in view of the
risk that the passage of time owing to a procedural delay may result in the
de facto determination of the matter (see, inter alia, W. v. the United
Kingdom, 8 July 1987, § 65, Series A no. 121; Hoppe v. Germany,
no. 28422/95, § 54, 5 December 2002; Süß v. Germany, no. 40324/98,
24 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION

§ 100, 10 November 2005; and Gobec v. Slovenia, no. 7233/04, § 142,

3 October 2013).
12. In my view, the present case should have been treated with particular
urgency, given the ongoing lack of contact between the applicant and his
son. Indeed, in the previous cases examined by the Court the lack of contact
weighed heavily in favour of the finding that a procedural delay – even a
relatively short one – amounted to a violation of the exceptional diligence
requirement of Article 8 (see, for example, W. v. the United Kingdom, cited
above, § 69, where the delay was about four months; Sylvester v. Austria,
nos. 36812/97 and 40104/98, § 69, 24 April 2003, where the delay was
slightly more than five months; Eberhard and M. v. Slovenia, no. 8673/05
and 9733/05, § 139, 1 December 2009; K. v. Slovenia, no. 41293/05, § 117,
7 July 2011; S.I. v. Slovenia, no. 45082/05, § 72, 13 October 2011; Ribić
v. Croatia, no. 27148/12, §§ 99 and 100, 2 April 2015; and, by contrast,
Süß, cited above, §§ 101-03; Diamante and Pelliccioni v. San Marino,
no. 32250/08, § 189, 27 September 2011; and Gobec, cited above, § 144, all
three of which concerned situations where regular contact was maintained).
13. I do not consider that complexity alone could explain the length of
the proceedings in the present case, in which only ten hearings were
scheduled. There were several delays for which the Government have not
submitted any satisfactory explanation. Thus, it took the domestic
authorities almost three months to obtain an expert opinion (compare
Sylvester, cited above, § 69). The proceedings were also stayed for three
months at the applicant’s request pending criminal proceedings against his
ex-wife. It is to be noted that the fact that the civil court was awaiting the
criminal court’s judgment before deciding on the residence order did not
release the domestic authorities, including the criminal court, from their
obligation to examine the case promptly (see K., cited above, § 117). It
should be noted, in particular, that the criminal conviction entered into force
eight days after the proceedings had been stayed. The Government did not
explain why it took the district court almost three months to resume the
proceedings. I find it noteworthy that the proceedings were ultimately
resumed five days after the conviction had been quashed on supervisory
review and the criminal proceedings had become pending again.
14. Given that the risk of psychological trauma in the event of a change
of residence was assumed by the domestic authorities in the light of the
mere passage of time, and taking into account the fact that the domestic
authorities bore at least partial responsibility for that situation through the
procedural delays attributable to them, the fact that A. had lived with his
mother while the residence order proceedings were pending, although
relevant, cannot in itself be regarded as sufficient grounds for deciding in
favour of the mother, in the absence of other valid reasons.
15. No other reasons were advanced by the domestic authorities. The
applicant submitted a number of documents to the courts concerning his
 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION 25

ex-wife’s criminal conviction and his and his ex-wife’s respective incomes,
living conditions, working schedules and character references. The domestic
courts found that the mother’s criminal conviction was not decisive and
dismissed all the other factors as irrelevant (see paragraph 38 of the
judgment).
16. As regards Ch.’s criminal conviction, the domestic courts merely
stated that the incident had been prompted by the personal hostility between
the applicant and Ch., caused by a disagreement on the issue of their son’s
residence and education. They therefore considered that Ch.’s criminal
conviction, not final at the relevant time, was not a sufficient reason for
making a residence order in favour of the applicant (see paragraph 38 of the
judgment). It is not the Court’s task to give a final ruling on the matter.
However, one must note that Ch. was convicted of a violent criminal
offence. It was established that she had physically assaulted the applicant in
front of their child and, in particular, that she had snatched the child by
force from the applicant before starting to hit the applicant (see
paragraph 20 of the judgment). It is also significant that this incident was
one of the manifestations of Ch.’s persistent refusal to allow any contact
between the applicant and his son. Given the seriousness of the situation and
the fact that it was directly relevant to the best interests of the child, the
Court considers that it required a more thorough analysis and examination
than can be found in the decisions of the domestic courts (see, for similar
reasoning, M.S. v. Ukraine, no. 2091/13, §§ 81 and 82, 11 July 2017).
17. Turning to the other factors mentioned by the applicant, it is to be
noted that the Government disputed the applicant’s assertions regarding his
superior personal qualities, income, living conditions and working schedule.
It is not the Court’s task to take the place of the national authorities and to
establish the disputed facts. I observe, however, that the applicant submitted
a number of documents to the domestic courts in support of his arguments.
Nevertheless, the domestic courts rejected them in summary fashion without
making any meaningful attempt to analyse the applicant’s and Ch.’s
respective incomes, living conditions or working schedules in the light of
the adduced evidence, finding that those factors were irrelevant for their
assessment. It is my humble view that these factors might have been
relevant for determining the best interests of the child (see Antonyuk, cited
above, § 134, and, mutatis mutandis, Neulinger and Shuruk v. Switzerland
[GC], no. 41615/07, § 139, ECHR 2010). Accordingly, the domestic courts
failed to safeguard the Convention right in question adequately, by omitting
to duly consider factors that were relevant under the Convention (see, by
contrast, Gruzdeva v. Russia (dec.), no. 13553/09, §§ 72-77, 8 July 2014,
and Malinin v. Russia, no. 70135/14, § 71, 12 December 2017, where the
domestic courts had carefully assessed those and other factors in their
decisions).
26 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION

18. I conclude from the above that the domestic courts did not conduct
an in-depth examination of the entire family situation and of all relevant
factors and that their decisions were based to a significant degree on a
general assumption in favour of mothers, and also on the mere passage of
time while the residence-order proceedings were pending, flawed as they
were with delays. It follows that the decision-making process was deficient
and did not therefore allow the best interests of the child to be established. I
accordingly propose that the domestic authorities did not adduce relevant
and sufficient reasons for their decision to grant a residence order in favour
of the child’s mother.
19. Lastly, as regards the Government’s argument that the applicant was
entitled to apply for a reconsideration of the residence arrangements after
the child had reached “a more conscious age”, my view is that decisions
taken on matters of child custody or residence may well prove to be
irreversible. Thus, where a residence order has been made in favour of one
of the parents, the child in question may in the course of time establish a
routine involving that parent and have his personal bond with the other
parent weakened. It might not be in his interests to disturb his established
way of life by reversing a previous residence order. It follows that this is a
domain in which there is an even greater call than usual for protection
against arbitrary interferences (see, mutatis mutandis, W. v. the United
Kingdom, cited above, § 62). I am not therefore convinced that a highly
uncertain possibility of a future change in residence arrangements could
absolve the domestic authorities from complying with their Convention
obligation to conduct an in-depth examination of the situation before
deciding on a child’s residence arrangements.
20. In view of the above, and notwithstanding the domestic authorities’
margin of appreciation, I find that the interference was not proportionate to
the legitimate aim pursued.
21. Consequently, I find that there has been a violation of Article 8 of
the Convention on account of the making of a residence order in respect of
the applicant’s son in favour of the boy’s mother, for the reasons explained
above.

II. Complaint under Article 14 of the Convention, taken in conjunction

with Article 8

22. The applicant also complained that the decision to grant a residence
order in respect of his son in favour of the boy’s mother amounted to
discrimination on grounds of sex. His complaint is based on Article 14 of
the Convention, taken in conjunction with Article 8.
23. The issue here is whether the enjoyment of the applicant’s right to
respect for his family life as set forth in Article 8 of the Convention was
secured without discrimination on a ground of sex, contrary to Article 14 of
 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION 27

the Convention. In assisting the Court in interpreting and applying the

provisions of these Articles, the principle of effectiveness, which is inherent
in the Convention, should be employed as a tool. According to this
principle, the interpretation and application of the Convention provisions
should be made in a practical and effective manner, based on their texts and
according to their scopes and purposes. Bearing this principle in mind, as I
also did when examining the complaint under Article 8, I will now examine
the complaint under Article 14 taken in conjunction with the former Article.
24. It is the Court’s established case-law that in order for an issue to
arise under Article 14 there must be a difference in the treatment of persons
in relevantly similar situations (see Burden v. the United Kingdom [GC],
no. 13378/05, § 60, ECHR 2008). I must therefore first examine whether the
applicant suffered a difference in treatment.
25. In the instant case it is to be noted that the domestic childcare
authorities, and then the courts, based their decision to make a residence
order in favour of the child’s mother on two main grounds.
26. Firstly, with regard to the domestic authorities’ finding that, by
reason of his very young age, A. should live with his mother, it should be
observed that the difference in treatment complained of does not arise from
the wording of the domestic provisions. Russian law does not make any
distinction between the sexes, both men and women being equally eligible
to obtain a residence order in respect of their child, irrespective of the
child’s age. The difference in treatment at issue was allegedly based on
what was described by the applicant as a well-established practice,
according to which a residence order in respect of a small child was almost
always made in favour of the mother. As the Court has already found,
difference in treatment potentially contrary to the Convention does not have
to be based on the domestic legal provisions; it may result from a de facto
situation, such as established practice (see E.B. v. France [GC], cited above,
§ 74, and Zarb Adami v. Malta, no. 17209/02, §§ 75-76, ECHR 2006-VIII).
27. It should be observed that the Government, on whom the burden of
proof lay, did not produce statistical information on the frequency of the
reliance on a child’s young age as the decisive reason for making a
residence order in favour of the mother; this alone could have provided an
accurate picture of administrative and judicial practice and established the
absence of a difference in treatment between mothers and fathers as regards
very young children (compare E.B. v. France [GC], cited above, § 74).
28. It is also significant that the domestic authorities in the present case
clearly based their decision on a general assumption that it was in the
interests of small children to reside with the mother rather than the father,
without any reference to the particular circumstances of the case in question
and without any consideration of the particular family situation (for a
detailed analysis of this ground, see §§ 8-9 of this opinion). The crucial
point is that it was prima facie considered to be in the interest of any small
28 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION

child to live with the mother (compare Zaunegger v. Germany,

no. 22028/04, § 46, 3 December 2009).
29. As regards the second ground – that the child had lived with his
mother for some time and that a change to his established way of life would
have a negative impact on his psychological state – this had nothing to do
with any consideration relating to the applicant’s sex. It referred to a de
facto situation and its anticipated consequences for the best interests of the
child (for a detailed examination of this ground, see §§ 10-14 of this
opinion).
30. Nonetheless, these two main grounds form part of an overall
assessment of the child’s situation. For this reason, I propose that they
should not be considered alternatively, but concurrently. Consequently, the
illegitimacy of one of the grounds has the effect of contaminating the entire
decision (see E.B. v. France [GC], cited above, § 80).
31. It is to be noted that the childcare authorities’ report of 22 June 2010
relied on one ground only – the child’s young age – in respect of its
recommendation that the child should live with the mother. That ground
alone was therefore considered to be sufficient for the mother to be
preferred to the father. It was not until 23 December 2010 that the second
ground was relied on for the first time by the childcare authorities, in
addition to the child’s age. In my view, the manner in which the childcare
reports, and in particular the report of 22 June 2010, were phrased was
revealing in that the child’s age was a determining factor.
32. The domestic courts in turn relied on both grounds, without it being
possible to conclude, on the basis of the texts of the judicial decisions, that
one of them was predominant or that one of them alone would have been
sufficient for them to decide in favour of the mother. It is, however, clear
that the child’s young age was at the centre of the deliberations of the
domestic courts, which reached their decisions in the light of the
recommendations made by the childcare authorities. That ground was
therefore omnipresent at every stage of the proceedings (compare E.B.
v. France [GC], cited above, §§ 82-88).
33. It should be stressed that the reference to the applicant’s sex was, if
not explicit, at least implicit. By relying on the child’s young age as one of
the reasons for making a residence order in favour of the mother, the
domestic courts assumed that women were able to take better care of small
children than men. The influence of the applicant’s sex on the assessment of
his application for a residence order has therefore been established and,
having regard to the foregoing, was a significant factor leading to the
decision to grant the residence order in favour of the mother.
34. The Court has already found that, while differences may exist
between a mother and father in their relationship with their child, as far as
the role of taking care of the child during the period corresponding to
parental leave – that is, on expiry of the period of maternity leave, which is
 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION 29

intended to enable the woman to recover from childbirth and to breastfeed

her baby if she so wishes – is concerned, men and women are “similarly
placed” (see Konstantin Markin v. Russia, no. 30078/06, § 132, 7 October
2010). This is a fortiori true for the period after the end of the parental
leave, as in the present case.
35. The applicant (the father) therefore suffered a difference in treatment
on account of his sex, as compared to a person in a relevantly similar
situation (the mother).
36. Such a difference of treatment is discriminatory if it has no objective
and reasonable justification; in other words, if it does not pursue a
legitimate aim or if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be realised. The
Contracting States enjoy a certain margin of appreciation in assessing
whether and to what extent differences in otherwise similar situations justify
a difference in treatment. The scope of the margin of appreciation will vary
according to the circumstances, the subject matter and its background, but
the final decision as to the observance of the Convention’s requirements
rests with the Court (see Burden v. the United Kingdom [GC], no. 13378/05,
§ 60, ECHR 2008, and Konstantin Markin, cited above, §§ 125 and 126).
37. The Government did not provide any justification for a difference in
treatment in the present case.
38. The Court has repeatedly held that the advancement of gender
equality is today a major goal in the member States of the Council of
Europe and very weighty reasons would have to be put forward before such
a difference in treatment could be regarded as compatible with the
Convention (see, among many other cases, Schuler-Zgraggen
v. Switzerland, 24 June 1993, § 67, Series A no. 263; Zaunegger, cited
above, § 51; and Buchs v. Switzerland, no. 9929/12, § 67, 27 May 2014). In
particular, references to traditions, general assumptions or prevailing social
attitudes in a particular country are insufficient justification for a difference
in treatment on grounds of sex. States may not impose traditional gender
roles and gender stereotypes. In particular, it is significant that
contemporary European societies have moved towards a more equal sharing
between men and women of responsibility for the upbringing of their
children and that men’s caring role has gained recognition. Gender
stereotypes, such as the perception of women as primary child-carers and
men as primary breadwinners, cannot therefore, by themselves, be
considered to amount to sufficient justification for a difference in treatment,
any more than similar stereotypes based on race, origin, colour or sexual
orientation (see Konstantin Markin, cited above, §§ 127 and 140-43).
39. In view of the foregoing, I consider that the decision to make a
residence order in favour of the mother on the grounds of the child’s young
age cannot be said to be reasonably or objectively justified. Finally, I
30 LEONOV v. RUSSIA JUDGMENT - SEPARATE OPINION

conclude that this difference in treatment, of which the applicant was a

victim, amounted to discrimination on grounds of sex.
40. Consequently, I find that there has been a violation of Article 14
taken in conjunction with Article 8.

III. General conclusion

41. I conclude that there has been a violation of Article 8 and Article 14
taken in conjunction with Article 8 of the Convention. This conclusion
would have led me to award the applicant an amount in respect of
non-pecuniary damage for the violation of the above provisions, as well as
an amount for costs and expenses; nevertheless, as I am in the minority, the
estimation of such amounts would be purely theoretical, and so I will refrain
from speculating on them.