Monitoring of the civil proceeding in the case of the care and upbringing of a child of Araksi and Artak Asatryan (court hearing on December 15, 2021)

On December 15, 2021, in the court of general jurisdiction of the Shirak region of the Republic of Armenia, a regular court hearing was held on the claim of Araksi Asatryan against Artak Asatryan on caring for a child – Inessa Asatryan and on her upbringing.

Previously the proceedings were postponed at the request of the plaintiff’s representative due to being on unpaid leave.

After the beginning of the session, the secretary of the court session introduced the observer of the ISHR to the court. The observer asked the court for permission to take photographs. The court, having clarified the position of the parties, did not allow the observer to take photographs.

The court clarified whether the parties were familiarized with the content of the opinion of the guardianship commission on the living conditions presented at the previous court hearing and asked their opinion on the conclusion.

According to the representative of the plaintiff, the conclusion is unreliable, since it was decided to transfer the care of the child, not to one of the parents, but to the grandmother.

The representative of the defendant objected to the conclusion in the sense that it was not about the unreliability of the conclusion, but about the fact that it did not follow from the claim itself.

The court asked the opinion of the representative of the commission on the content of the conclusion. The representative of the commission stated that the commission was forced to make such a decision, since the child does not communicate with the mother, and the father is abroad and does not return to the child. The representative also noted that because of this situation, the child is a “child without parental care”, therefore the commission is taking steps to recognize the child’s grandmother as a guardian.

It should be noted that the action of the commission obviously contradicts the requirements of the RA law “On social protection of children left without parental care”, according to the 2nd article of which a child left without parental care is a child under 18 years of age, whose parents (or the only parent) died, deprived of parental rights, declared incompetent, avoid raising children or protecting their rights and interests, as well as recognized as dead, missing or unknown in the manner prescribed by law.

The law clearly regulates the cases in which it is only possible to resolve the issues of recognizing a child left without parental care and establishing guardianship over him.

Having published the content of the conclusion, the court expressed its position that the conclusion does not meet the requirements of Article 53 of the Family Code of the Republic of Armenia.

It should be noted that Article 53 of the Family Code of the Republic of Armenia, in a comparable sense, considers the burden of ensuring the interests of children as the main concern of parents, and the circumstance of living together with parents or at least one of them is considered as a necessary element of the realization of the rights of the child, which summarizes circle of interests of the child.

When asked by the court about the relationship between the child and the mother (in particular, it was not connected with the mother or had a negative attitude towards her), the representative of the commission replied that it was impossible to create a connection between the child and the mother, since the work of the psychologist was not long-term, while at the same time he said that the commission wants to resume psychological work with the child.

Considering that the parties spoke in favor of the commission’s initiative, the court asked the commission’s representative whether there was a reasonable time required to consider the result of psychological work as visible, in response to which the commission’s representative stated that by the end of January 2022, the commission’s psychologist could conduct a sufficient work with a child and provide the court with an appropriate conclusion.

The court, while attaching importance to the aspect of the child’s best interest, decided that an attempt should be made to create a bond between the child and the mother or to change the attitude towards the mother.

Observing the development of this trial, the experts of the ISHR draw attention to the important position of the ECtHR in relation to cases related to guardianship. The ECtHR has noted on several occasions that it is imperative that custody cases are dealt with as soon as possible (“Hokkanen v. Finland”, judgment of September 23, 1994, paragraph 72), especially when the period in question may be irreversible. consequences for the relationship between parents and children (“Tsikakis v. Germany”, judgment of February 10, 2011, paragraphs 64 and 68). According to the position of the Council of Presidents of the Courts of Armenia, the precedents presented by the European Court confirm that only objective reasons are taken into account when assessing the fact of violation of the requirement for a reasonable time for consideration of the case. Otherwise, the workload of the courts, the inexperience of judges, the imperfection of the judicial system or the legal system as a whole, as well as the behavior of the participants in the case cannot be considered an objective reason for the delay in the consideration of the case.

The next court hearing will take place on February 17, 2022, at 11:30 am.