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Validity Foundation - Mental Disability Advocacy Centre

Russia: landmark judgment on parenting rights for persons with disabilities

By Barbara Mehes 29th March 2016

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Today, the European Court of Human Rights ruled against the Russian Government in a Validity (formerly MDAC) case  Kocherov and Sergeyeva v. Russia. It is the first time in European legal history that stripping parental rights from a person with an intellectual disability has been found to breach international human rights law. The Kocherov family gave an interview on Sky News following their legal victory – read more here.

In 2007, Vitaliy Kocherov had a child with his wife who was also a resident of the social care institution where he was living in St. Petersburg, Russia. The couple were excited when they found out that they would become parents, but immediately after the birth of their daughter the authorities removed her and placed her in a children’s home. They did so only because Mr. Kocherov’s wife was under guardianship so Mr. Kocherov was not considered in law as the parent of his child and had no right to raise his daughter, which he wanted to do.

Mother and father did their best to keep in regular contact with their daughter visiting her at the children’s home, taking her for walks, and buying her books, toys and clothes. The children’s home was a four-hour journey from theirs, and given that the father had a full time job too, visiting was often a struggle. The children’s home often objected to visits on account of the mother’s disability. Mr Kocherov then began a legal battle to exit the institution and be reunited with his daughter. In November 2011, Validity Lawyer Dmitri Bartenev took legal action to secure housing for the family. Mr Kocherov arranged everything for the arrival of his daughter – who was then 4-years-old – including toys, books, clothes and furniture.

Everything appeared to be in place until the children’s home rejected his request for his daughter to live with him, and asked a local court in St. Petersburg to intervene. The children’s home said because of Mr. Kocherov’s mental disability and his time previously spent in a social care institution, and becuase of the mother was under guardianship, it was unsafe for the child to live with them. A court endorsed the position of the children’s home, prohibiting the father from raising his daughter.

After six years battling the Russian justice system, the family were finally reunited with their daughter. With Validity and lawyer Dmitri Bartenev’s help, Mr Kocherov sought justice at the European Court of Human Rights. Today, the Court unanimously found a violation of Article 8 of the European Convention on Human Rights, which sets out the right to respect for family life. The Court found that the Government took a “formalistic approach, simply endorsing the position of the representative of the children’s home.” The Court criticised the Government for, “silently ignoring all evidence and arguments” made by Mr Kocherov resulting in a child being unnecessarily and unlawfully separated from her parents.

On hearing the Court’s judgment today, Mr Kocherov said:

“Anna is a great kid and we were so happy to be finally able to live as a family in our flat. We saw stories of other residents of the social care institution who could not save their families. Thanks for supporting us in these years!”

Dmitri Bartenev, who represented the Kocherov family before the European Court of Human Rights said:

“Today’s decision of the Court is yet another milestone in recognition of equality of people with mental disabilities. The Court emphasised the paramountcy of state obligation to aim at reuniting a natural parent with his or her child. I am happy that Mr Kocherov’s long battle for the reunification of his family was successful and hope it will serve as guidance for the Government in implementing the standards of the UN Convention on the Rights of Persons with Disabilities, which Russia ratified in 2012.”

Ann Campbell, Validity Litigation Director said:

“Russia’s draconian laws on legal capacity meant that Mr Kocherov was prevented from being a father. Validity is delighted that the Court has recognised this as a violation of the Kocherov family’s right to family life and ordered redress. The judgment makes clear that a formalistic approach to determining parental rights is not sufficient. A full determination must be done to ensure the best interests of the child while not violating the rights of parents.”

Validity now urges the Russian Government to stop separating parents from their children on the basis of stereotypes and prejudice against people with mental disabilities. To this end, the Government should amend Article 73(2) of the Family Code to remove references to “mental illness” and “dangerousness” which perpetuate stereotypes against parents with disabilities, in breach of the UN Convention on the Rights of Persons with Disabilities, which Russia ratified in 2012.

Read Validity’s press release: Englishрусский.

 

This article was originally published here.