issued by the Registrar of the Court

ECHR 122 (2013)

18.04.2013

Decision to revoke adoption based on unproven suspicion of

child abuse was unjustified

In today’s Chamber judgment in the case of Ageyevy v. Russia (application

no. 7075/10), which is not final¹, the European Court of Human Rights held,

unanimously, that there had been:

Five violations of Article 8 (right to respect for private and family life) of the

European Convention on Human Rights, on account of:

the decision to revoke the adoption of the applicants’ children; the applicants’ inability to

review the authorities’ position concerning access to their children between 31 March

2009 and 3 June 2010; the actions of the officials of the hospital where their adoptive

son was treated; the Russian authorities’ failure to investigate the unauthorised

disclosure of confidential information on the adopted status of the applicants’ son; and,

the Russian courts’ failure to protect Ms Ageyeva’s right to reputation in the defamation

proceedings against a publishing house;

and no violation of Article 8 on account of the initial removal of the applicants’

adoptive children.

The case concerned a married couple’s complaint about the removal of their two adopted

children and the revocation of the adoption following an incident when their son was

burnt at home and had to go to hospital for treatment.

Principal facts

The applicants, Anton Ageyev and Larisa Ageyeva, husband and wife, are Russian

nationals who were born in 1962 and 1963 respectively and live in the village of

Korobovo in the Leninskiy District of the Moscow Region. Having lost their biological son,

who had died a few years earlier from a severe illness, the couple adopted two small

children (a boy and girl, born in 2005 and 2006 respectively) in March 2008.

Following an incident on 20 March 2009, when the boy was badly burnt at home and had

to go to hospital for treatment, the authorities suspected abuse and the children were

removed from their parents on 29 March 2009, eventually being placed in a foster home.

According to the applicants, their son had been scalded when he had knocked over an

electric kettle and then hurt himself when falling down some stairs. They challenged the

removal order before the courts, but it was eventually upheld in April 2009. From 31

March 2009 to 3 June 2010, the applicants did not have any access to the children. After

that, they were given permission to visit, but the children have remained in the foster

home to date.

In June 2009, the couple’s adoption of the children was revoked by the district court,

which based its decision in particular on the finding that the parents had failed to look

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

after the children’s health - relying on a medical report from the hospital indicating that

both children had a number of untreated illnesses - and on the fact that a criminal

investigation had been lodged against the applicants in respect of the injuries the boy

had sustained. The decision to revoke the adoption was eventually upheld in August

2009.

According to the applicants, during their son’s stay in hospital in March 2009, the

hospital administration allowed a number of people, including journalists and an

assistant to a member of the Russian State Duma, to gain access to the boy, to

interview him and to take pictures of him. In March and April 2009, a number of articles

were published in several national media about the case, displaying photos of the boy,

indicating his and his parents’ full names and suggesting that the boy’s injuries had been

caused by ill-treatment at the hands of his parents. Some articles alleged in particular

that the boy had been repeatedly ill-treated by his mother, that she had been drunk

during the incident in March 2009 and that she was a cruel and sick person.

In November 2009, the applicants requested the authorities to open criminal

proceedings in respect of a breach of secrecy concerning the adopted status of their

children. After the complaint had initially been joined to the criminal proceedings in

connection with the alleged ill-treatment of the boy, a separate investigation was opened

in December 2010. Subsequently suspended and reopened, the investigation remains

pending. Ms Ageyeva also unsuccessfully brought defamation proceedings against the

publishing house of one of the newspapers.

In November 2010 Mr Ageyev was acquitted of certain charges against him and the

prosecution dropped the other charges; Ms Ageyeva was convicted of non-fulfilment of

duties relating to the care of minors as well as intentional infliction of mild harm to

health and sentenced to one year and eight months’ correctional work.

Complaints, procedure and composition of the Court

The applicants complained about the sudden removal of their adopted children, about

the revocation of the adoption and their being refused access to the children from 31

March 2009 to 3 June 2010. Furthermore, they alleged a breach of their privacy on

account of: the conduct of hospital officials who provided journalists with access to their

son and with photographs and medical information about him; the unauthorised

disclosure of confidential information concerning their son’s adopted status in the media;

and, the failure of the Russian courts to protect their reputation against the factually

incorrect and defamatory media reports. The applicants relied in particular on Article 8.

The application was lodged with the European Court of Human Rights on 21 January

2010.

Judgment was given by a Chamber of seven judges, composed as follows:

Isabelle Berro-Lefèvre (Monaco), President,

Mirjana Lazarova Trajkovska (“The former Yugoslav Republic of Macedonia”),

Julia Laffranque (Estonia),

Linos-Alexandre Sicilianos (Greece),

Erik Møse (Norway),

Ksenija Turković (Croatia),

Dmitry Dedov (Russia),

and also Søren Nielsen, Section Registrar.

Decision of the Court

It was undisputed between the parties that the removal of the applicants’ children in

March 2009 had constituted an interference with their right to respect for their family

life. The Court found that that interference had been in accordance with the law, namely

the relevant provisions of the Russian Family Code, and that it had pursued a legitimate

aim, as it had aimed to protect the children’s “health and morals” for the purpose of

Article 8. Given that the boy had been injured in his parents’ house and that criminal

proceedings had been brought against them, the Court could accept that the authorities

had reasonably considered that placing the children in public care for some time was in

their best interest. Furthermore, the Russian courts, ruling at two levels of jurisdiction,

had reviewed the removal orders and had given consideration to all relevant

circumstances. The applicants had been represented by counsel and had been able to

contest any evidence against them. The Court therefore found that there had been no

violation of Article 8 on account of the initial removal of the children from their

parents.

The decision to revoke the adoption had been in accordance with Russian family law and,

as the initial removal of the children, had pursued a legitimate aim for the purpose of

Article 8. However, the Court observed that the Russian courts had made a superficial

assessment of the allegation that the applicants had failed to look after the children’s

health. The courts had simply enumerated the diseases with which the children had been

diagnosed after their removal, without giving explanations as to their origin or examining

the extent to which the parents were responsible for each health problem.

Furthermore, the Russian courts had not sufficiently taken into consideration that all

post-adoption reports from the relevant authorities had unanimously praised the

conditions in which the children lived with the family and had not mentioned any medical

supervision issues. The Russian courts had only mentioned the boy’s injuries and the fact

that a criminal investigation was pending without examining any evidence. While the

Court could accept that the suspicion of child abuse had justified the temporary removal

of the children, it could not find that that suspicion alone was sufficient for the far-

reaching and irreversible decision to revoke the adoption. There had been no assessment

of already established family bonds between the applicants and the children and the

potential emotional damage to them that might result from breaking those bonds.

Eventually, the criminal proceedings had ended with the acquittal of Mr Ageyev and a

conviction of Ms Ageyeva of non-fulfilment of duties only in respect of the incident of

March 2009, while all other charges had been dropped. In the light of those

considerations, the Court concluded that the court decisions revoking the adoption had

not been sufficiently justified for the purpose of Article 8. There had accordingly been a

violation of Article 8 on account of the revocation of the adoption.

The Court moreover found a violation of Article 8 on account of the applicants’

lack of access to the children for one year and two months. That situation had been

an automatic consequence of the decision to revoke the adoption, for which the

authorities had failed to advance sufficient reasons.

The Court found it established, based on the parties submissions and the evidence given

by the hospital’s doctors in the criminal proceedings against the applicants before the

Russian courts, that: doctors and officials of the hospital had taken photographs of the

applicants’ son for non-medical purposes; they had passed them on to the assistant of a

member of the Duma; they had informed several media crews about the boy’s identity;

and, they had given them direct access to him and to medical information concerning his

condition. All those actions had been taken without seeking the authorisation of, or

informing, the applicants. The relevant authorisations had been made by the head of the

hospital, who had acted in his capacity as an official under the authority of the

Department of Healthcare of the City of Moscow. The Court therefore found that the

Russian State was responsible for that conduct. However, in their submissions before the

Court, the Government had not demonstrated that those actions had any basis in

Russian law. There had accordingly been a violation of Article 8 on account of the

conduct of the hospital officials.

The alleged unauthorised communication of confidential information about the adopted

status of the applicants’ son concerned an action which was criminal under Russian law.

Nevertheless it had taken the authorities more than a year to react to the applicants’

complaint. They had suspended the investigation without having questioned the most

obvious witnesses, namely the journalists involved, officials of the district authorities and

of the hospital. According to the information available to the Court, the investigation had

not advanced any further since having been reopened. The Court therefore concluded

that the authorities had failed to effectively investigate the unauthorised

disclosure of confidential information regarding the adopted status of the

applicants’ son, in violation of Article 8.

Finally, the Court found a violation of Article 8 on account of the Russian courts’

failure to protect Ms Ageyeva’s right to reputation in the defamation proceedings

against the publishing house concerning the articles describing her alleged ill-treatment

of her son. Ms Ageyeva’s complaints about the media reports, in which she could be

identified, fell within the scope of her “private life” for the purpose of Article 8. The Court

was prepared to accept that the subject matter – involving a suspicion of domestic

violence of an adopted child – could be considered important to the public. However, any

reporting about the incident should have taken into account Ms Ageyeva’s right to the

presumption of innocence, in view of the pending criminal proceedings at the time.

Instead, the articles had made premature, factually incorrect and defamatory

assessments and the material had been presented in a sensational manner. It was not

evident that the Russian courts in the defamation proceedings had attached any

importance to her right to the presumption of innocence. Nor had they examined closely

whether the journalists had acted in good faith and had provided reliable and precise

information in accordance with the ethics of journalism.

Just satisfaction (Article 41)

The court held that Russia was to pay Mr Ageyev 25,000 euros (EUR) and Ms Ageyeva

EUR 30,000 in respect of non-pecuniary damage and both applicants jointly EUR 12,100

in respect of costs and expenses.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of

Europe Member States in 1959 to deal with alleged violations of the 1950 European

Convention on Human Rights.