The dispute about a child - contact order in a court

DECISION
In the name of the Russian Federation

March 21, 2017
Butyrskiy District Court of Moscow
composed of the presiding judge Shatilova V.V.,
in the presence of the secretary Sapelkina A.E.,
with the participation of the lawyer Yarmoosh M.M.
examined in a closed court hearing a civil case No. 2-810/17 on the claim of D. to S.I. on determining the procedure for communication with the child and on the counter-claim of S.I. to D.G. on deprivation of parental rights,

FOUND

D.G. appealed to the court with the claim to S.I. on determining the procedure for communication with the child and, after clarifying his claims, requested to oblige S.I. not to obstruct him in communicating with the minor daughter E. according to the schedule indicated in the specified claim (v. 2 l.d. 159).

The claimant indicated that he had civil marriage relations with the defendant in support of the stated requirements. The family lived in the UK. On February 6, 2004 a daughter E. was born. A few years after the birth of his daughter, the family broke up but he participated in the upbringing and maintenance of the child. S.I. began to put obstacles in communication with his daughter after the collapse of the family and due to revenge. She did not allow him to see the child. He (the claimant) was forced to go to the UK court for a court decision on the procedure for his communication with his daughter. S.I., as an objection, began to defame him in committing a grave offence against a child - sexual abuse. In 2009, The Criminal Prosecution Authority of the London Police and Social Services of London conducted a thorough investigation against him upon the application of S.I. The competent authorities of Great Britain established that S.I. falsely accused him of committing criminal acts. Having assessed these circumstances, the High Court of Justice confirmed his (the claimant) right to communicate with the child and determined the procedure for such communication. On July 19, 2009, the defendant together with her minor daughter E. left for the Russian Federation on a tourist visa. From that moment until April 2011, his daughter’s whereabouts were unknown, since S.I. started to hide in the territory of the Russian Federation and did not return back to the UK. The reason for the departure of the defendant with the child from the UK is her unwillingness to execute the judgment of the Main Office of the Family Affairs Division of the High Court of Justice dd. March 23, 2009 on the determination of the procedure for communication of the father with the child. The claimant also explained that the defendant has prevented him from communicating with his daughter from the moment of the departure to the Russian Federation to the present day. He believes that the actions of the defendant grossly violate the rights and interests of their daughter, who has the right to communicate with both parents.

The defendant filed a counter-claim to D.G. on deprivation of his parental rights in respect of the minor daughter E.; S.I. indicated that D.G. avoided fulfilling his parental duties in relation to a minor child, did not allocate funds for his maintenance, did not care about his health, physical, mental and moral development in support of the claims. Also, the claimant (on a counter-claim) indicated that after meetings with the defendant (on a counter-claim) her daughter returned with scratches and bruises on her knees and legs, behaved very nervously, scared. The child complained of severe pain in intimate places and she was forced to seek medical help from a doctor. S.I. indicated that (the defendant in the counter-claim) abused his daughter and attempted to violate her sexual integrity. She also explained that she had addressed the UK police and the Department for Work with Children and the Public of the Municipal Council of Westminister with this problem but she did not receive any protection for her child. Also, the defendant indicated that there was no psychological contact between the father and the daughter, the girl had not related feelings to her father, she became nervous and irritable while mentioning him. Under such circumstances, the father’s communication with the daughter does not meet the interests of the child and may damage the daughter’s physical and mental health in her opinion.

By the decision of the Butyrskiy District Court of Moscow dated October 18, 2011, the civil proceedings were discontinued.

By the decision of the Moscow City Court dated December 23, 2011, the decision of the Butyrskiy District Court of Moscow dated October 18, 2011 was cancelled, the case was returned for a new consideration (v. 2 l.d. 72-73).

By the decision of the Butyrskiy District Court of Moscow dated March 16, 2012, the proceedings in a civil case on a counter-claim of S.I. to D.G. on deprivation of parental rights in respect of a minor E. terminated due to the claimant’s refusal of the claim (v. 2 l.d. 221).

At the court session, the claimant D.G. was represented by the lawyer Yarmoosh M.M. acting by the power of attorney and warrant of attorney. The representative of the claimant insisted on the stated requirements on the grounds specified in the claim.

The defendant S.I. and her representatives - the lawyer Slobodin B.Z. and lawyer Pankov S.V. asked to satisfy claims to refuse the arguments set forth in written objections to the claims.

A representative of the guardianship and custodianship body of the Municipality of the inner-city municipality Presnenskoe in the city of Moscow asked to refuse the satisfaction of the claim of D.G., arguing that communication between a minor E. and her father is not advisable and does not meet the interests of the child.

Upon hearing the representative of the claimant, the defendant, his representatives, the representative of the guardianship and custodianship body, the conclusion of the guardianship and custodianship body, after examining the case file, the court finds the claim of D.G. on determining the procedure for communication with the child reasonable and to be partially satisfied.

By virtue of the article 55 of the Family Code of the RF, a child has the right to communicate with both parents, grandfather, grandmother, brothers, sisters and other relatives. Dissolution of marriage of parents, invalidation or separation of parents does not affect the rights of the child. In case of separation of parents the child has the right to interact with each of them. The child has the right to communicate with the parents also in case if parents live in different states.

In accordance with article 61 of the Family Code of the RF, parents have equal rights and bear equal responsibilities with respect to their children.
By virtue of article 63 of the Family Code of the RF, parents have the right and obligation to raise their children. Parents are responsible for the upbringing and development of their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children.
In accordance with article 65 of the Family Code of the RF, parental rights cannot be exercised in contradiction with the interests of children. Ensuring the interests of children should be the primary concern of their parents. When exercising parental rights, parents are not entitled to harm the physical and mental health of children, their moral development.
By virtue of the article 66 of the Family Code of the RF, a parent living apart from the child has rights for communication with the child, participation in his upbringing and decisions on matters of education of the child. The parent with whom the child resides should not interfere with the communication of the child with the other parent, if such communication does not harm the physical and mental health of the child, his moral development. If parents can not reach an agreement the dispute shall be resolved by the court with the participation of the guardianship and custodianship body at the request of the parents (one of them).

The court found that claimant D.G., defendant S.I. and their daughter are British citizens. The parties were not in a registered marriage but lived together and led a joint household. The parties have a common minor daughter E. The joint life of the parties did not work out and the couple broke up in 2005 when the child was 18 months old. E. stayed with her mother.

The above circumstances are not disputed by the parties.

As we see from the materials of the case and as established by the court, the parties could hardly agree on the schedule of visits to the child from the moment of separation. The court and the Advisory Service for the Family and the Juvenile Court were involved in the case (v. 2 l.d. 138). The claimant filed a claim to the court in the UK to determine the schedule of communication with the child. The court determined the communication schedule: D.G. has the right to see his daughter for 72 hours every second weekend (v. 2 l.d. 147).

The Main Office of the Family Affairs Division of the High Court of Justice reaffirmed the schedule of claimant's communication with his daughter by its decision dated March 23, 2009 on determining the procedure for the communication of the claimant with the child (v. 1 l.d. 85-88).

The arguments of the claimant that the defendant had hampered him in communication with the child and falsely accused him of violence and sexual abuse of his daughter are confirmed by the Basic Assessment Protocol of the Council of Westminster County (v. 2 l.d. 89-148) made by the Social Service on the application of Dr. Jack Jergian dated September 10, 2008 who examined E.

According to the basic assessment protocol from August 26, 2008 to September 10, 2008, S.I. was at the doctor's office and expressed concern that the claimant's girlfriend (Christine) had hurt her daughter in the genital area while bathing. The doctor reported this concern to the Westminster County Children's Service for further assessment. The assessment is based on information collected during visits and conversations with family members, during conversations with Dr. J. Jergian from Marven Medical Practice, interviews with a class teacher of E. at Mill Bank school, information is also collected from kindergarten, which E. visited earlier and through the reports of the Advisory Service (v. 2 l.d. 128).

According to the analysis of the information collected during the basic assessment, E. is a happy and healthy child without any complaints about health, education or emotional or behavioral development. There are no problems regarding the care of any of the parents over E. and there is also no question of physical/sexual abuse of E. on the part of Christine. The precedent seems to be that E. was washed with a sponge or she rubbed herself with a sponge and got hurt around her bottom and this happened when Christine washed her/looked after her. According to the plan of the Social Service, E. must have a regular and permanent schedule of communication with her father in accordance with the court decision (v. 2 l.d. 147-148).

These conclusions conform to the letter of the senior lawyer of the Guardianship and custodianship body dated March 13, 2009 to the High Court of Justice, according to which S.I. stated that these perversions occurred for a long time because E. always returned home upset after meeting with her father. The division reviewed the above information and the explanation provided by Ms. S.I. We do not believe that the information provided by E. itself supports the accusation of sexual abuse. Moreover, we believe that the actions of Ms. S.I., as for the interrogation of the child and the recording of the conversation, raise doubts about the reliability of this information. The school did not report on the sexual behaviour of E. Thus, with regard to accusations of sexual abuse against E. on the part of the father, we believe that this information does not substantiate accusations. Based on the information in the division, we do not believe that Mr. D.G. is a danger to her daughter. Earlier E. stated that she liked to meet with her father. E. looks now sad and unsocial in school. E. believes that she is sad because she does not see her father. We respect the decision of the court but would like to support the claim of Mr. D.G. on visiting the child (v. 1 l.d. 96-97).

According to the letter dated March 18, 2009 from the Criminal Prosecution Authority of the London Police to the senior lawyer of the Guardianship and custodianship body, the police no longer intend to consider the further accusations of Irina Sidelnikova against her husband D.G. in relation to their daughter E. The fact is that E. was questioned on January 16, 2009 and March 10, 2009, but no evidence of sexual abuse was identified. In the event of the discovery of new facts, this investigation can be resumed (v.1 l.d. 102-103).

According to the resolution of the investigator of the Presnenskiy interdistrict investigation division of the Investigation Department of the Central Administrative District of the Main Investigation Department of the Investigative Committee of the Russian Federation in Moscow lieutenant of justice Kalimullin R.R. on the refusal to initiate a criminal case dated November 30, 2011, it's established that taking into account the possibility of the consequences of personal hostility towards her former civil husband D.G., arising from domestic conflicts, as well as family relationships, the mother of a minor E. - S.I. could involuntarily distort the facts she set out about sexual abuse against her minor daughter by the father, and also taking into account the impact on sanity and mentality of E. during a long period of time, the investigation concludes that during the verification of objective and sufficient data, confirming the arguments set forth in S.I.’s application that sexual abuse was committing during a long period of time on the territory of the United Kingdom of Great Britain by the father in respect of her minor daughter E., it has not been established (v. 2 l.d. 215-216).

The arguments of the claimant that the defendant prevents him from communicating with his daughter from the moment of her departure to the Russian Federation with the child till the present day are confirmed by the case materials. The claimant applied to various competent authorities of the Russian Federation in early 2011 with applications on the search for his daughter. From the response of the FMS of the Moscow Region, the claimant became aware of obtaining refugee status in the Russian Federation by his daughter and found out the place of registration of the child in Moscow. Also, the defendant categorically objects to the claimant's communication with his daughter in court sessions.

The court finds unjustified the arguments of the defendant that the claimant does not fulfil his parental duties in relation to the minor child, does not allocate funds for his maintenance, does not care about his health, physical, mental, spiritual and moral development because before the defendant’s departure with the daughter from Great Britain to the Russian Federation, the claimant properly fulfilled his parental duties in relation to his daughter, as evidenced by the basis assessment protocol (v. 2 l.d. 89-148). Following the breakup of the family, the claimant paid the defendant by an amicable settlement approved by the court the amount of 170 000 pounds sterling as compensation for the defendant’s property rights and their common daughter E. (v. 2 l.d. 80).

This conforms to the letter from the class teacher of E. - Ms. Russen dated June 7, 2011. During her studies, when E. attended the Millbank School, we regularly saw her mother S.I. and her father D.G. E. was happy and accustomed to the Millbank School, she had friends among classmates and studied well.

The arguments of the defendant that there was no psychological contact between the father and the daughter, the girl had not related feelings to her father, she became nervous and irritable while mentioning him were rejected by the court on the following grounds. The basic assessment was conducted by Westminster County Social Service from September 24, 2008 to November 28, 2008 during the period when the parties and the child lived in the UK and when the claimant had a regular schedule of communication with his daughter. The social worker noted in the protocol that the child had a close relationship with both parents. The school also did not express concern about the emotional and behavioural development of E. and stated that, in general, she looked like a calm and happy child who spoke positively of both parents.

According to the response of the State Educational Institution of Moscow the Center for diagnostics and counselling "Uchastie" at the request of the court dated June 30, 2011 in photographs submitted by both parents. E. is with the mother, father, grandmother from the mother's side. It can be noted that in almost all photographs the mood of the child is good, the girl smiles in many photographs. She is in close bodily contact with her relatives (her mom and dad are holding her on hands), dressed neatly, adequately to the season. The photographs show that both parents and grandmother were actively involved in the upbringing and development of E. (v.1 l.d. 219). As a result of a psychological study of the child’s relationship with parents, the specialists of the SEI CDC "Uchastie" concluded that E. was anxious and fearful of her father’s figure, expressing the unwillingness to meet her father (v. l.d. 223).

The court considers the arguments of the claimant deserving of attention that the daughter was tied to him with her mother, liked to spend time with him, was happy when he took her out of school. According to the claimant, the strange reaction of the child in the center “Uchastie” with respect to him proves that the defendant formed a negative attitude towards the claimant during the period of the intentional long separation of the daughter from the father, causing the child's unreasonable fear.

These arguments are confirmed by the observations of specialists from the center "Uchastie" reflected in the psychological study. The girl included herself, the mother and grandmother Lyuda (from the mother’s side) into the family. Then, after a psychologist's request to recall other people significant to her, she named two school friends and kindergarten teachers. In response to a request to choose a button for the dad, the girl, after a long pause, looked at her mother and only after the mother nodded to her, she immediately chose the biggest brown button in the form of a fang and placed it vertically apart from other family members, far enough from her button. To the question of the psychologist to E.: “Why don't you want to meet with the dad?” - E. in a low voice answered: "He is bad".

Thus, when comparing E.'s attitude to her father before leaving Britain and after a forced two-year separation from her father, the court finds that the defendant intentionally formed a negative image of the father in his daughter.

The arguments of the defendant that the claimant may adversely affect the physical, moral and psychological health of the child were not found to be confirmed by the materials of the case during the trial as well.

The court finds the arguments of the representative of the guardianship and custodianship body set out in the conclusion dated March 13, 2012 as unproven, biased, contradictory to the materials of the case. The decision is based on the conclusions of the SEI Center for psychological, medical and social support “OZON” and the conclusions of the SEI Center for diagnostic and counselling “Uchastie”. Other materials of the case, which reliably confirm that the claimant’s daughter was healthy and happy before her departure from the UK, spoke positively about both parents and wanted to meet her father were ignored by the representative of the guardianship and custodianship body. The materials of the case, which prove with certainty that the accusations of the mother of the child against the father were not supported by the law enforcement agencies of Great Britain and the Russian Federation, were not reflected in the decision on the claim. Also, on September 2, 2011 the claimant was present at the court session but the representative of the guardianship and custodianship body did not use his right to ask questions to the persons participating in the case and did not ask the claimant any questions, which is reflected in the court record.

The court finds the arguments from the letter of the SEI Center of psychological, medical and social support “OZON” dated August 29, 2011 addressed to the Head of the Municipality of the inner-city municipality Presnenskoe in Moscow as incomplete, contradictory to other evidence collected in the case. The opinion of the psychologist neither in form, nor in content meets the requirements for expert opinions. In the opinion the issues are resolved that can be resolved only by a complex judicial psychological and psychiatric examination.

In preparing the opinion, the psychologist took up a wide range of issues that were beyond the competence of the educational psychologist. In addition, there are no conclusions about the ability (inability) of a young child to give reliable testimony in the opinion, which contradicts the rules of conducting a complex of studies within the framework of an examination of juvenile victims to determine their ability to correctly perceive circumstances relevant to the case and give evidence about them. There is the conclusion about the presence of psychological trauma in the child in the opinion. However, the diagnosis of post-traumatic stress disorder of a child should be carried out by specialists in the field of child psychiatry but not by educational psychologists as the CPMSS “OZON” did. A significant violation of this opinion is the conclusion about the reliability of the testimony of a minor child about the circumstances, the establishment of which belongs exclusively to the competence of the investigator and the court. In the opinion, only on the basis of the testimony of the child, the psychologist groundlessly concludes that there has been sexual abuse of the child and also indicates the specific perpetrator of these actions. This is not only an obvious excess of the psychologist’s competence limits but also unacceptable from the point of view of the methodology of psychological science and professional ethics. The court takes into account that in the letter of the Center for psychological, medical and social support "OZON" and the opinions of the SEI Center for diagnostics and counselling “Uchastie” there are significant differences regarding the psychological state of E. The psychologist of the "OZON" Center found that the psychological state of E. is defined by a complex of disorders that are typical for children who have suffered psychological trauma (increased anxiety, fear of the father repeating sexually colored actions and physical aggression from his side, sleep disturbance). Psychologists of the “Uchastie” Center recorded in their opinion that Emily had no fear towards male psychologists who were present at the examination. The background of the mood is even, no neurotic reactions were observed (vol. 1 l.d. 221).

Thus, the court is critical to the conclusions made by the specialist of the Center for psychological, medical and social support “OZON” that the meetings of the girl with her father will currently have a negative impact on her condition.

After analyzing and evaluating all the evidence collected in the case in their entirety, the court concludes that the defendant creates difficulties for the claimant in communicating with their common daughter E. During the trial the evidence that the communication of the claimant with the child will cause harm to the physical and mental health of the child, her moral development was not established. However, the court takes into account that E. currently fears the father’s figure, expresses an unwillingness to meet with the father, therefore considers it necessary to partially satisfy the claims and decide to hold meetings with the child at the SEI the Center for diagnostics and counselling "Uchastie" in the presence of a psychologist for professional assistance to the child to overcome the artificially formed negative image of the father.

In connection with the foregoing, guided by Art. 194-199 of CPC of the RF, the court

DECIDED:

To determine the order of communication of D.G. with her minor daughter E. for two consecutive days from 5 pm To 7 pm, monthly, during the arrival of D.G. to the Russian Federation in coordination with the Center for diagnostics and counselling "Uchastie" and S.I. in the presence of a specialist of the Center for diagnostics and counselling "Uchastie" at the address: Moscow, Lenskaya st., b. 4 without the presence of mother Sidelnikova I.A., D.G. has to inform the Center "Uchastie" and S.I. about his trips one month in advance. I.A., as well as by phone every day for at least 15 minutes if the child desires.

To oblige S.I. not to obstruct the communication of D.G. with his daughter E.

The rest of the requirements - to refuse.

Federal judge: Shatilova V.V.
(The judgment has entered into force)