Y.I. v. Russia
The European Court of Human Rights found that depriving a mother of her parental rights because of her status as a woman with drug dependence was a violation of Article 8 of the European Convention of Human Rights because the particular circumstances of her case had not been adequately contemplated and less restrictive measures were not considered.
Y.I., a mother of three children, was arrested on October 8, 2013, on suspicion of drug trafficking. She had taken opiates for six years starting in 2004, and at the time of her arrest had recently begun taking drugs again and had been allowing others to take drugs in her home. A police officer for juvenile affairs also wrote multiple reports stating that Y.I. had been neglecting her parental responsibilities. Later the same month, her oldest child was taken to live with his biological father and the other children were put into public care. An October 2013 inspection of Y.I.’s apartment found it had adequate furniture and appliances, sufficient food, and had separate sleeping places for each child, though it was stuffy and not well ventilated. Another inspection in November 2013 found repairs had been done and the space was properly ventilated. Y.I. sought help at an outpatient rehabilitation clinic on October 29, 2013, and was admitted to a specialist clinic the following day. Y.I. received a combination of inpatient and outpatient care through February 2014.
Proceedings began on November 1, 2013, to terminate Y.I.’s parental rights on the grounds that she was not providing her children with care and financial support, that she had been taking drugs for a long time, that she was unemployed, and that she had pending criminal charges. The Golovinsky District Court of Moscow entered judgment on January 17, 2014, depriving Y.I. of her parental rights, relying on Y.I.’s arrest report, the juvenile officer’s report, Y.I.’s medical examination, the October inspection of Y.I.’s apartment, the certificate showing Y.I. was admitted for drug treatment, the decisions placing her younger children in public care, and a letter from her oldest son’s teacher. The court considered Y.I.’s ongoing treatment to be irrelevant. Y.I. lodged an appeal with the Moscow City Court arguing that the District Court had not adequately examined the particular circumstances of her case and had deprived her of parental rights solely because she had a drug dependency. The City Court rejected new evidence and upheld the District Court’s judgment. Y.I. then made a cassation appeal in the Presidium of the Moscow City Court arguing, in addition to what she had argued on appeal, that the courts had violated her children’s rights under the Russian Family Code to be raised by their family, that the courts had failed to show that their forced separation was in the best interests of the children, and that there had been no grounds to conclude that she had neglected her children. The Presidium upheld the lower courts’ decisions, affirming their reasoning.
The European Court of Human Rights (ECtHR) considered the case in light of Article 8 of the European Convention on Human Rights – the right to respect for family life. Y.I. alleged that the automatic application in her case of Article 69 of the Russian Family Code, which listed a parent’s drug dependency as grounds for removal of parental authority, without regard to mitigating evidence that she presented and without consideration of a less restrictive alternative, had violated her right to respect for family life. Y.I. further argued that the proceedings could not have been considered fair since they were dominated by public officials, while her representative had no legal education and training, and that some proceedings had been conducted without her, even though her unavailability was due to her seeking treatment. Russia conceded that the decision had interfered with Y.I.’s family life, but argued it was justified under Article 8 because it had been made under domestic law, was proportionate, and considered the interests of the children. The State also argued that Y.I. had been present at two of the three hearings before the first instance court and so was not deprived of any opportunity to make her case.
The ECtHR found that the rights of parents and children to be together was fundamental to the respect for family life protected under Article 8. It further explained that all measures should be taken to maintain relationships between children and parents, except when a family is so unfit as to pose a danger to the child’s health and development. The challenged decision needed to be lawful, pursue a legitimate aim of the Convention, and be necessary in democratic society. In determining the necessity of the measures taken by the State, the ECtHR considered whether the lower courts conducted a sufficiently in-depth examination of the entire family situation and whether the decision-making process had been fair. The ECtHR found that the decisions in the domestic courts satisfied the first two prongs of the test: they were lawful since they were based on the Russian Family Code, and they were aimed at the legitimate interest of protecting the welfare of the children. The ECtHR found that although the initial urgent removal of the children may have been justified on the facts, the following proceedings were not sufficiently justified. They noted that Y.I.’s had only been monitored for under a month when the termination proceedings commenced and that no State attempt was made to provide assistance. Further, the ECtHR noted that domestic courts did not give any reasoning underlying their finding that Y.I. did not adequately care for the children, and they improperly rejected evidence of Y.I.’s ongoing rehabilitation and attempts to improve her situation. Since the decision to remove Y.I.’s parental authority was not deemed necessary, it was found to be a violation of Article 8. The ECtHR also ruled that Y.I. be paid EUR 20,000 for non-pecuniary damages from the violation.
Russia paid Ms. Y.I. compensation. However, Russian courts refused to reconsider their earlier decisions and restore Y.I.’s parental rights. A younger child is still not adopted and lives with a foster family.
The Committee of Ministers of Council of Europe in its Recommendation No. R (2000) 2 invited member States to ensure that adequate possibilities of restitutio ad integrum, and moreover, of re-examinations of cases, are achieved. The importance of reopening proceedings was highlighted in the situations where consequences of grave violations of the Convention cannot be remedied only by just satisfaction and when a respective court decision was found to have violated the Convention.
Such a legal mechanism does exist in Russia. According to p. 1 and 4 of Article 392 of the Civil Procedure Code of the Russian Federation, final judgements of national courts can be reviewed pursuant to the ECtHR ruling that there has been a violation of the Convention in regard to the proceedings of that case.
In April 2020 Y.I. filed an application to reconsider the case to Golovinsky District Court in Moscow. Golovinsky District Court refused to reconsider the case. According to the District Court, the ECtHR decision did not rebut the facts that constituted grounds for the deprivation of parental rights, thus the judgement should not be reviewed. Y.I. had filed an appeal to the Moscow City Court in October 2020. The case is still pending. In February 2021, Y.I. informed the Committee of Ministers of the Council of Europe about the decision of Golovinsky District Court.
The case is a milestone for advocates for the right to respect for private and family life of women who use drugs as well as for the rights of children of parents who use drugs but continue being good and responsible parents. Child protection services should only use such a dramatic measure as the deprivation of parental rights as the measure of the last resort. Parents who use drugs should first get social, medical, and financial support. The significance of this case extends far beyond Russian borders to many other countries where governments continue to enforce discriminatory family laws similar to Article 69 of the Russian Family Code. In light of Y.I. v Russia, such laws should be repealed not to single out drug dependence as a sole reason for the deprivation of parental rights.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.