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Family Law

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Court of Protection Practice and Procedure Conference 2016

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30 OCT 2013

ENFORCEMENT OF CUSTODY JUDGMENT: Pakhomova v Russia (Application no 22935/11)

(European Court of Human Rights, 24 October 2013)

When the parents of the, now 12-year-old, child separated the child remained with the mother but both parents applied for custody. During proceedings the father picked up the child from school and he had not been seen since 2009. Shortly afterwards the Russian court granted custody to the mother on the basis of the warm and trusting relationship between them. The father's relationship with the child was said to be ambiguous. A child psychiatrist had diagnosed the child with anxiety, phobic disorder and stammering.

The police conducted a local and federal search for the child, the media were alerted and a photograph of the child issued. The father avoided contact with the police but on several occasions he was taken into custody and interviewed but while he admitted the child was in his care, he would refuse to divulge his whereabouts.

After attempting to coerce the father into complying with the custody order voluntarily, the mother applied for enforcement through the court. The Bailiff's Service refused to open enforcement proceedings but was forced to do so on appeal. The father was given 5-days' notice to comply with the order. When it became clear that the father no longer lived at his stated address the enforcement proceedings were stayed. The mother attempted to bring criminal proceedings against the father but was unsuccessful. In the district court the father was found to have abused his parental rights and they were, therefore, terminated. The mother applied to the European Court of Human Rights claiming a breach of Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

In total it had taken the Russian authorities 4 years to bring criminal proceedings and to terminate the father's parental rights when it had been clear at an early stage that the father would not comply with the court order. The 4-year delay in enforcing the custody judgment would have serious consequences for the child's physical and mental well being. The court concluded that the Russian authorities had failed to take, without undue delay, all the measures that they could reasonably been expected to take to enforce the custody judgment. That constituted a breach of Art 8. 


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