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Постановление Европейского суда по правам человека от 08.01.2009 "Дело "XXXXX (XXXXX) против Российской Федерации" [рус., англ.]





"... In its judgment the trial court stressed that the defendants had created a life-threatening situation by obstructing medical treatment of the child.
As is clear from the materials of the case..., A. has not had contact with her adoptive parents since being removed on 11 December 2003. A year has passed since that date and obstruction of the child's medical treatment by the parents is no longer a relevant factor for consideration.
Furthermore, according to the trial court judgment - which referred to the explanations given by the hospitals' head physician - treatment of the minor has now been terminated.
The court has been unable to establish that there is evidence of deliberate conduct by the adoptive parents either before 23 October 2003 or after 11 December 2003 which would be contrary to the child's interests.
Taking this into account, the court finds that the revocation of the adoption order is premature, since it lacks sufficient justification.
Under paragraph 12 of the Ruling of the Supreme Court of 27 May 1998 N 10 "Application of the legislation by the courts in disputes concerning the upbringing of children"... in circumstances where, on examining a case, the court is unable to establish sufficient grounds for revocation of the adoption order but considers that it is dangerous for the child to remain with his or her parents, it may order that the child be removed from the parents and that custody be transferred to a local custody and guardianship agency.
In accordance with Article 141 of the Family Code, an adoption order may be revoked for failure by the adoptive parents to fulfil their parental obligations, for abuse of parental rights, abusive treatment of the adopted child or if the parents suffer from chronic drug or alcohol addiction.
In the present case no sufficient grounds for revocation of the adoption order can be established, but there are grounds for restricting [the applicants'] parental rights."
57. The applicant, the Kirov administration's education department and the Kirov Prosecutor's Office applied for supervisory review of the appeal decision.
58. On 1 March 2005 a judge of the Kirov Regional Court, acting by way of supervisory review, ordered that the case be examined on the merits by the Presidium of the Kirov Regional Court.
59. By a decision (постановление) of 16 March 2005 the Presidium of the Kirov Regional Court upheld the appeal judgment of 28 December 2004.

F. Subsequent proceedings concerning access to A.

60. Following the judgment of 18 November 2004 concerning the revocation of adoption, the Pervomayskiy District Court of the Kirov Region resumed the proceedings concerning access to A. (see paragraph 46 above). On 23 November 2004 the District Court held in the parents' favour. The court's reasoning was as follows:
"... Under Article 63 of the Family Code of the Russian Federation, parents have a right and an obligation to raise their children.
Under Article 66 § 1 of the Family Code, a parent living separately from a child has the right to communicate with him or her and to participate in his or her upbringing and in meeting her or his educational needs. A parent living with a child cannot obstruct the child's communication with the other parent so long as such communication does not harm [the child's] physical, psychological and moral health.
The court has established that on 11 December 2003 A. was removed from her parents because of an imminent danger to her life and health and was placed in the custody of the Kirov Custody and Guardianship Agency.
At present the applicants are denied any access to their daughter, participation in her upbringing or information about her...
... The court takes cognisance of the fact that on 18 November 2004



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