At the end of March 2016 the European Court of Human Rights issued an important ruling in Kocherov and Sergeyeva v Russia (Application no. 16899/13 judgment of 29 March 2016) firmly rejecting blanket assumptions that a person with a diagnosis of learning disability is incapable of caring for their children. Indeed, to make such an assumption may well result in a violation of that person’s Article 8 ECHR right (the right to respect for private and family life).
A reading of the full judgment is highly recommended – and the author intends to return in more detail to this ruling in the future – but a summary of the judgment follows.
The applicants were a father (first applicant) and daughter (second applicant). The father has a mild learning disability and lived in a care home between 1983 and 2012. In 2007 he married Ms NS, who was resident in the same care home, and who had been deprived of her legal capacity because of her mental disability. In the same year, she gave birth to their daughter who was placed in a children’s home. The first applicant subsequently consented to their daughter remaining there until it became possible for him to take care of her. Meanwhile he maintained regular contact with her, visiting her at the children’s home, spending time with her and buying her books, toys and clothes.
In 2008 the marriage between the first applicant and Ms NS was declared void at the request of a public prosecutor because of Ms N.S.’s legal incapacity. However, her legal capacity was subsequently restored and they have since remarried.
In 2012 the first applicant moved out of the home into social housing and wanted his daughter to live with him there. It appears that he had set up an environment conducive to caring for his daughter and had proactively made enquiries about schooling for her. Ms NS also had regular contact with her daughter and visited the first applicant’s flat. However, the authorities resisted, and this was upheld by the courts, until May 2013 when the second applicant was at last permitted to join her father.
The first applicant argued that the refusal to allow his daughter to live with him was a violation of his right under Article 8(1) ECHR. The state argued that their actions were justified under Article 8(2) ECHR as lawful and in pursuit of a legitimate aim (protecting the child from harm). International Disability Alliance, the European Disability Forum, Inclusion International and Inclusion Europe intervened in the proceedings as third parties and submitted that the first applicant’s right under Article 8 in conjunction with Article 14 (non-discrimination) ECHR had been violated. The Court, by a majority, agreed that there had been a violation of Article 8 ECHR and as such felt that there was no need to also consider Article 14.
The authorities essentially asserted that the first applicant’s diagnosis of learning disability meant that he was unable to care for his daughter. Much turned on the conflicting evidence provided by the state and by the first applicant. Whilst there is no suggestion in the judgment that the first applicant lacked capacity at the material times the national courts also appear to have been much influenced by the fact that Ms NS, who was not a party to the proceedings, had been deprived of her legal capacity and concerns about her involvement with her daughter and the risk this posed. Restoration of her legal capacity seemed to be a pivotal factor in them finally relenting and allowing the daughter to live with her father.
The Court 6, whilst it acknowledged the paramountcy of the child’s best interests7 and need to have regard to any actual and potential risks involved, found that the evidence produced suggested that the first applicant was capable of adequately and appropriately caring for his daughter8. Significantly, it also made it clear that to align the refusal to allow the child to live with her father primarily on the basis of his diagnosis was not a “sufficient” reason to justify a restriction of his parental authority9. Nor was it convinced that the national courts’ reference to Ms NS’s legal status was a sufficient ground for restricting the first applicant’s parental authority10.
What is, however, interesting about the ruling is that whilst Articles 5 (equality and non-discrimination) and 23 (respect for home and family) of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) are referred to as relevant international law there is no mention of Article 12 (equal recognition before the law). This is surprising given the apparent relevance of this particular right to this case and its interpretation by the UN Committee on the Rights of Persons with Disabilities in its General Comment No 111 and now considerable literature surrounding it. It is difficult to know whether this illustrates a lack of appreciation of the requirements of the UNCRPD, especially the foundational right identified in Article 12, or whether it simply did not want to address the complicated issues raised in the general comment.