CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 mars 2017

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AND OTHERS v. CROATIA   (Application no. 36216/13)           JUDGMENT     STRASBOURG   14 March 2017     FINAL   18/09/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of K.B. and others v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President,   Nebojša Vučinić,   Paul Lemmens,   Valeriu Griţco,   Ksenija Turković,   Stéphanie Mourou-Vikström,   Georges Ravarani, judges, and Hasan Bakırcı, Deputy Section Registrar , Having deliberated in private on 7 February 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 36216/13) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Ms K.B. (“the applicant”) on her own behalf and on behalf of her two underage sons, D.B. and P.B. (“the children”), all Croatian nationals, on 22 May 2013. The President of the Section acceded to the applicant’s request not to have her and the children’s names disclosed (Rule   47 § 4 of the Rules of Court). 2.     The applicant was represented, first by Ms L. Kušan, an advocate practising in Ivanić-Grad, and subsequently by Ms   N.   Owens from the law firm Owens and Houška, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms   Š.   Stažnik. 3.     The applicant alleged that the State had failed to fulfil its positive obligations to facilitate contact between her and her children and had thereby violated her and her sons’ right to respect for their family life. 4.     On 23 September 2013 the applicant’s complaints concerning the right to respect for family life and the lack of domestic remedies in that respect were communicated to the Government; the remainder of the application was declared inadmissible. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1968 and her two sons in 2001 (D.B.) and 2005 (P.B.), respectively. The applicant lives in I.; the children live with their father, I.B., in S. 6.     In 2002 the applicant married I.B. In the period between 2002 and March 2009 the family lived together in their home in S., a small town located on the central Dalmatian coast, north-west of the town of Split. 7.     On 24 March 2009 the applicant contacted the Split Social Welfare Centre ( Centar za socijalnu skrb Split ) and expressed fear for her life and the lives of the children. She claimed that her husband had been mentally and verbally abusing her and the children for years, and had lately become unbearable. 8.     The Split Social Welfare Centre immediately informed the police of the alleged abuse and of its intention to take child protection measures envisaged by the Family Act. On the same day the police interviewed the applicant, who stated that her husband was suffering from post-traumatic stress disorder and alcoholism. She reiterated that he had been abusing her and the children mentally and verbally but not physically. 9.     On 25 March 2009 the applicant and the children moved from S. and went to live with the applicant’s parents in I., a municipality in central Croatia near Ivanić-Grad. These two places are 426   kilometres apart. [1] 10.     In the period between 8 and 20 April 2009 the police interviewed I.B., the children’s paediatrician, and employees of the younger son’s kindergarten and the older son’s school. I.B. denied any abuse and complained that the applicant’s parents did not allow him any contact with the children. The paediatrician confirmed that I.B. had in 2002 and 2003 been treated for post-traumatic stress disorder but that she, like the other persons interviewed by the police, had not noticed any signs of abuse within the family. 11.     On 24 April 2009 the police authorities submitted a report on the alleged abuse in the applicants’ family to the relevant State Attorney’s Office, which eventually, on 22 February 2011, found that no criminal offence had been committed. 12.     On 1 July 2009 the applicant was admitted to a psychiatric hospital, where she stayed until 9 August 2009, when she was released. She was diagnosed as suffering from severe anxiety and depression caused by her current family situation. 13.     Since April 2009 several consecutive sets of proceedings have been conducted before judicial authorities concerning custody and contact arrangements regarding the applicant’s children. Ivanić-Grad or Split Social Welfare Centre participated in each of those proceedings as an independent intervener sui generis with a view to protecting the children’s interests. The facts set out below give a detailed account of those proceedings, measures undertaken by the welfare authorities, and the surrounding circumstances. A.     Divorce and custody proceedings and the concurrent proceedings concerning I.B.’s contact rights 1.     Proceedings concerning I.B.’s contact rights 14.     On 4 June 2009 I.B. instituted non-contentious proceedings ( izvanparnični postupak ) against the applicant in the Ivanić-Grad Municipal Court ( Općinski sud u Ivanić-Gradu ) in order to regulate his contact rights in respect of the children. 15.     On 30 July 2009 the Ivanić-Grad Social Welfare Centre ( Centar za socijalnu skrb Ivanić-Grad ), having interviewed the applicant and the children, submitted its report and recommendations. The report suggested that the children had expressed negative emotions towards their father and fear of corporal punishment by him. The relevant part of that report reads as follows: “By psychological evaluation of the [older son] it was established that the boy is very emotionally burdened by the family situation. [He] is anxious and upset at the mention of the father and the possible [re-establishment of] contact with him. He expresses fear of the father because he does not know how the father would behave. He stated that he likes it in I. because before he was afraid and had to listen to the parents fighting. He also states that he does not want to spend summer holidays with the father but that he is fine with telephone contact with him. The boy is very emotionally attached to the mother. The psychologist’s interview with the children of 28 July 2009 ... suggests that both children indicate that they do not want to go to their father, [and the older son] shows that he is mentally and emotionally very burdened by the family situation and his relationship with the father. The child is very anxious and upset when the issue of going to the father is mentioned, [as evidenced by his] emotional reaction. In particular, [the older son] started crying on several occasions [while] expressing negative emotions against the father, primarily a fear ... of corporal punishment. [He] says that he does not want to go to the father because he does not want the father to beat him as he used to, on the head and on the back, which [the younger son] confirms. He agrees to the father coming to I. to visit them on weekends and to have contact with him by telephone.” In view of the applicant’s hospitalisation (see paragraph 12 above), the Centre recommended that the children be temporarily placed in the care of their maternal grandparents, that the father be granted contact rights, to be exercised every second weekend in I. and that the children be referred to the Polyclinic for the Protection of Children in Zagreb for treatment in order for them to overcome their emotional difficulties. 16.     By a decision of 31 July 2009 the Ivanić-Grad Municipal Court: - decided to temporarily, until 1 December 2009, place the children in the care of their maternal grandparents; - awarded I.B. contact rights, to be exercised every Saturday between 9   a.m. and 7 p.m.; - ordered a combined psychological and psychiatric evaluation of the applicant and I.B. 17.     On 3 February 2010 the Velika Gorica County Court ( Županijski sud u Velikoj Gorici ) dismissed an appeal by I.B. and upheld that decision. 18.     In their combined expert opinion of 29 October 2009 the appointed forensic experts in psychology and psychiatry stated, inter alia , that both the applicant and I.B. had certain shortcomings, which, however, did not disqualify them as parents. The experts recommended that custody be awarded to the applicant because that would be less painful for the children. They explained that in the given circumstances separating the children from their mother and their having to adapt again to a new environment would be a traumatic experience for them. The experts also noted that the entire family, and especially the parents, needed professional assistance in overcoming their emotional difficulties 19.     By a decision of 27 November 2009 the Ivanić-Grad Municipal Court: - temporarily deprived I.B. of custody of the children until 28 June 2010 or the adoption of a final decision in the concurrent divorce and custody proceedings (see paragraphs 22-53 below); - temporarily awarded custody to the applicant; - awarded I.B. contact rights, to be exercised in I. every Saturday between 9   a.m. and 7 p.m.; 20.     On 3 March 2010 the Velika Gorica County Court ( Županijski sud u Velikoj Gorici ) allowed an appeal by I.B., quashed that decision, and remitted the case. 21.     In the resumed proceedings, on 15 April 2010 I.B. informed the Ivanić-Grad Municipal Court that he no longer wished to pursue the case, whereupon, by a decision of 16 April 2010, the Ivanić-Grad Municipal Court discontinued the proceedings. 2.     Divorce and custody proceedings 22.     Meanwhile, on 30 April 2009 the applicant brought a civil action against I.B. in the same court, seeking a divorce and custody of the children. In his response I.B. opposed a divorce and proposed that he be awarded custody of the children. 23.     By a decision of 27 May 2009 the Ivanić-Grad Municipal Court ruled that it had no territorial jurisdiction in the matter and on 7 July 2009 it transferred the case to the Split Municipal Court ( Općinski sud u Splitu ). 24.     On 3 September 2009 the Split Municipal Court referred the applicant and her husband to the Split Social Welfare Centre for the mandatory mediation procedure before divorce. 25.     On 19 October 2009 the Split Social Welfare Centre submitted its report and recommendation, stating that reconciliation between the spouses was not possible because their relationship was deeply strained. As regards the issue of custody of their children, the Centre recommended a psychiatric evaluation of the parents in order to determine their parenting capacities. 26.     At the hearing held on 24 March 2010 the court decided to order a combined expert opinion from forensic experts in psychology and psychiatry. 27.     On 10 May 2010 the experts submitted their opinion, which was based on a psychiatric and psychological evaluation of the applicant and I.B. and a psychological evaluation of the children. The experts established that: - both parents were suitable for custody; - their parenting capacities had certain shortcomings, which was why they needed the assistance of welfare authorities in the form of supervision of the exercise of parental authority, counselling and, possibly, enrolment in a parenting school; - the children were more attached to the mother, who was at that time more available to meet their needs, - the children wished to remain living with their mother. The experts recommended: - that weight be given to the children’s wishes and custody be awarded to the mother, - that the father be granted extensive contact rights, to be exercised in I., initially every second Saturday, and later over one whole weekend per month, as well as every second public holiday, half of the winter holidays and the entire summer holidays (July and August), - that the child protection measure of supervision of the exercise of parental authority be imposed ( nadzor nad izvršavanjem roditeljske skrbi ). 28.     I.B. objected to those findings in the written submission that he submitted on 8 June 2010. The applicant did not object. 29.     At a hearing held on 18 June 2010 I.B., relying on the above-mentioned expert opinion (see paragraph 27 above), asked the court to order a provisional measure allowing him to spend the upcoming summer holidays with the children at his home in S. The representative of the Split Social Welfare Centre who attended the hearing endorsed this request. 30.     By a decision of the same day the court allowed the request and issued a provisional measure whereby it ordered that the children were to stay with their father in S. from 1 July 2010 until 30 August 2010. During that period the applicant was granted contact rights, to be exercised every second Saturday from 10 a.m. until 8 p.m. at I.B.’s home, and every day by phone. 31.     On 28 June 2010 the applicant appealed against that decision. She had nothing against the children staying with their father during the summer but complained about the impracticability of the contact arrangements, in particular of having to exercise her contact rights during that period in I.B.’s home, which for her was both objectionable for psychological reasons, given the animosity between her and her husband, and costly, as it entailed her having to travel to S. 32.     The applicant’s appeal was only dismissed by the Split County Court ( Županijski sud u Splitu ) on 20 May 2011. The relevant part of that decision reads as follows: “The first-instance court adopted the provisional measure relying on [the relevant provisions of] the Enforcement Act and the Family Act after having established that the adoption of that measure was not contrary to the children’s best interests. Since those interests were not called into question by the arguments raised by the appellant in her appeal, and given that in the proceedings leading to the adoption of the decision [on the provisional measure] there were no serious breaches of procedure ... the appellant’s appeal had to be dismissed and the contested decision upheld.” 33.     Meanwhile, in a report of 30 June 2010 the Ivanić-Grad Social Welfare Centre ( Centar za socijalnu skrb Ivanić-Grad ) informed the Split Municipal Court of the measures taken to prepare the children for their stay with their father during the summer holidays, as ordered under the measure of 18 June 2010 (see paragraph 30 above). It noted that the younger son wanted to go to S. and spend time with their father whereas the older one resisted that and preferred that their father come to I.. The Centre therefore recommended that implementing the provisional measure in respect of the younger child would be in his interests whereas implementing the measure by force against the older one would not be in that child’s interests. 34.     It would appear that the older son eventually agreed to spend the summer holidays with his father in S. 35.     During the children’s stay with their father in July and August 2010 the applicant did not come to visit them. She however maintained regular telephone contact with them, which became less frequent in August because the children grew reluctant to speak with her. 36.     On 10 August 2010 I.B. asked the Municipal Court to issue a provisional measure and to temporarily award him custody of the children until the final conclusion of the divorce and custody proceedings. 37.     In support of his request, on 27 August 2010 I.B. submitted an opinion of a clinical psychiatrist, Dr J.Š., who had interviewed the children, suggesting that the circumstances had changed in that the children now wanted to continue living with their father and firmly refused to go back to their mother in I. The opinion also stated that both parents had limited parenting capacities but were equally suitable to be awarded custody and that they had both been manipulating the children, who needed psychological assistance. 38.     On 30 August 2010 I.B. did not hand the children over to the applicant, but kept them in S. 39.     In their opinions of 1 and 10 September 2010 submitted to the Split Municipal Court the Split and Ivanić-Grad Social Welfare Centres respectively suggested that the experts’ recommendations made in the opinion of 10 May 2010 (see paragraph 27 above) be followed and the children returned to the applicant in I. In view of the children’s recent resistance to returning to their mother’s home, the Split Welfare Centre also proposed that a supplementary expert opinion be obtained from the same experts. 40.     On 13 September 2010 the Split Municipal Court made an enforcement order whereby it ordered I.B. to hand over the children to the applicant. Following an appeal by I.B., that order was quashed by the Split County Court on 20 May 2011. The County Court noted that, apart from the provisional measure of 18 June 2010 regulating custody and contact rights during the summer holidays of 2010, the Municipal Court had not issued any other decision temporarily regulating those issues for the duration of the divorce and custody proceedings. That meant that until the judgment on custody became final the parents were to exercise joint custody and could not enforce their respective custody rights against each other as they both had the right to have the children living with them. 41.     At the hearing held on 17 September 2010 the Municipal Court heard the two experts who had prepared the opinion of 10 May 2010 (see   paragraph 27 above). They noted that the new circumstances (the children’s resistance to returning to I.) were indeed important but stood by their opinion. They were also against the Split Welfare Centre’s proposal to obtain a supplementary expert opinion, as another expert assessment would traumatise the children further, such an opinion would be incomplete, and it would be difficult to determine the boys’ true wishes. If the court were nevertheless to decide to obtain such an opinion they suggested that the task be assigned to an expert institution in Zagreb. 42.     After the hearing the applicant tried to meet the children at their father’s home in S. However, the children refused to meet her and were crying and hiding from her. 43.     On 28 September 2010 I.B. submitted to the court another opinion of the psychiatrist, Dr J.Š. (see paragraph 37 above), dated 23 September 2010, which stated that: - the children needed psychological assistance, to which the father agreed (he had started taking them to therapy); - the father had been advised to encourage the children to have contact with the mother; - the children were refusing contact not because they did not love their mother but because they were afraid she would take them to I.; - the supplementary expert opinion proposed by the Split Social Welfare Centre (see paragraph 39 above) should determine (a) in what way the parents had been manipulating the children, (b) what kind of impact returning to I. would have on the children’s emotional health, and (c) the long-term consequences of either potential decision on custody. 44.     The applicant did not attend the hearing on 5 November 2010 at which the court decided to hear as witnesses at the next hearing scheduled for 1 February 2011 the older son’s school teacher and school pedagogue, the younger son’s kindergarten teacher, and the psychiatrist, Dr J.Š. 45.     On 24 January 2011 I.B. submitted to the court yet another opinion of Dr J.Š., dated 11 January 2011, which stated that the proceedings should end as soon as possible because they were traumatising for the children, who lived in a constant state of fear and uncertainty regarding their potential return to I. In her view, without addressing the causes of the children’s refusal to return to their mother, returning them to I. would be impossible and contrary to their emotional well-being and their best interests. 46.     At the hearing held on 1 February 2011 the court heard evidence from Dr J.Š., who stated that: - the separation of the parents entailed a potential change of the children’s residence, which was very traumatising for the children; - for the children it was more important where they would live than with which parent; they loved their mother but refused to live in I.; - the boys had sustained serious emotional harm and it was impossible to return them to I. without consequences; - the boys were refusing to have contact with the mother and were very likely inventing stories that they had been beaten by her and their maternal grandparents (see paragraph 15 above) only because they were afraid that she would take them back to I. (the older boy was saying that he would hide, run away or kill himself). She recommended that the children continue to live with the father, have unhindered contact with the mother and undergo psychotherapy because they had suffered serious emotional harm. 47.     At the end of the hearing the court decided to obtain an opinion from a forensic expert in psychiatry, Dr N.S. from Split. During the hearing and later, in her submissions of 14 and 28 February 2011, the applicant objected to that decision because the court had: - appointed a single expert (in psychiatry), whereas a combined opinion from experts in psychology and psychiatry had been warranted; - appointed an expert from Split rather than experts from Zagreb, contrary to the recommendation of the earlier experts in the case (see   paragraph 41 above), which had also been costly for her as it had entailed her having to travel to Split; - not ordered an expert evaluation of the children. 48.     On 9 March 2011 the expert, Dr N.S., submitted his opinion. The opinion was based on a psychiatric evaluation of I.B. but not of the applicant because she had refused to come to Split to undergo a psychiatric evaluation by the expert. The expert stated that: - he could not assess which parent was more fit to be awarded custody of the children because the applicant had refused to undergo a psychiatric evaluation; and - there were no signs indicating that I.B. was unfit to be awarded custody. 49.     Before the hearing held on 7 April 2011 the applicant tried to meet the older son in his school. However, after the boys’ teacher had told him that his mother was looking for him, he left the school building. 50.     At the hearing held on 7 April 2011 the court heard the applicant and forensic expert Dr N.S., who confirmed that he had not interviewed the children, whereupon the court closed the main hearing and delivered a judgment. By that judgment the Split Municipal Court: - dissolved the marriage between the applicant and I.B.; - awarded custody of the children to I.B.; and - granted the applicant contact rights, to be exercised every second weekend in I., from Friday evening until Sunday afternoon so that the father could bring the children to her in I. and she could return them to him in S. 51.     Since the parties waived their right of appeal the judgment immediately became final. 52.     By a decision of 30 May 2011, the Split Social Welfare Centre ordered the child protection measure of supervision of the exercise of parental authority in the family (see section 110 of the Family Act, cited in paragraph 101 below). It prepared a programme of supervision and conferred regarding the supervision with a certain N.Đ. (hereafter “the supervising officer”), a psychologist and social worker. The decision stated that the measure was primarily aimed at establishing unhindered contacts between the children and the applicant. 53.     Bi-monthly reports prepared by the supervising officer (who has been visiting the children at their father’s home twice a month) and various documents prepared by the Split Social Welfare Centre since 30   May 2011 suggest that only on a few occasions was the applicant able to see the children, not in I., but in S., and then only from a distance and for a very short time. In particular, those documents suggest that the applicant saw the children in that manner on 18 August 2011, 21 May and 1   December 2012, 2   May and 29 June 2013, and on 24 March 2014 (see paragraphs 56, 66, 71, 75, 78 and 82 below). Each time the children vehemently resisted the meeting, and were angry and behaved aggressively towards her. They also resisted telephone contact with their mother. The supervising officer also noted that even with her the children categorically refused to talk about their mother. B.     Enforcement proceedings 54.     On 30 June 2011 the applicant applied to the Split Municipal Court for enforcement of that court’s judgment of 7   April 2011 (see paragraph 50 above), that is to say she sought enforcement of her contact rights to be exercised in I. 55.     At a hearing held on 18 August 2011 the enforcement court heard the parties. I.B. explained that he had several times tried to take the children to their mother to I. but had been faced with their very strong resistance. He stated that the older son had told him: “You can kick me in the head and put me in the boot [of your car] but I will escape during the trip” and “Dad, if you keep pressuring us, don’t be surprised if one day I do not return home”. In I.B.’s opinion the children had behaved in this way because they had been beaten by the applicant and their maternal grandparents while they had been living in I. (see paragraph 9 and 15 above). He also submitted that he had acted in accordance with the instructions of the supervising officer, who had advised him against forcing the children to go and visit the applicant against their will. 56.     After the hearing the applicant tried to meet the children at their father’s home. The older son refused to see her and locked himself in his room. The younger son was playing outdoors, so the applicant managed to see him but the meeting was brief and superficial. 57.     Together with his submissions of 24 August 2011 I.B. enclosed an opinion of the psychiatrist Dr J.Š., dated 22 August 2011. The opinion suggested that the children had developed strong resistance towards the mother (to which both parents had subconsciously contributed) and that forcing them to go to I. would likely cause them psychological harm. On the other hand, the therapist stated that contact with the mother should be established as soon as possible, in the presence of an employee of the Split Social Welfare Centre and in the father’s absence. 58.     At the hearing held on 11 October 2011, the enforcement court heard the supervising officer, who testified that the children were not ready to meet the applicant. They had resisted seeing her and were even refusing to talk about her. She also stated that, in her view, their behaviour was not the result of their father’s influence. When asked whether visits to Dr J.Š. could prepare the children for meetings with their mother, she replied affirmatively but added that Dr J.Š. was a psychiatrist and that it would perhaps be better to take the children to a child psychologist. 59.     By a decision of 28 December 2011 the Split Municipal Court dismissed the applicant’s application for enforcement. Relying on the supervising officer’s testimony and the opinion of psychiatrist Dr J.Š. (see   paragraphs 57-58 above), the court found that I.B. had not been obstructing the exercise of the applicant’s contact rights, which remained unenforced exclusively because of the children’s strong resistance. The applicant did not appeal against that decision. C.     Proceedings concerning new contact arrangements 1.     The first set of proceedings 60.     On 9 December 2011 the applicant instituted proceedings in the Split Municipal Court seeking a change in the contact arrangements. 61.     The court held hearings on 20 March, 21 May, 17 July and 6 August 2012. 62.     At the hearing held on 20 March 2012 the parties agreed that the contacts between the applicant and the children should in the future take place in S. on the premises of the Split Social Welfare Centre. At the same hearing the court ordered the Split Social Welfare Centre to conduct a thorough examination of both parents and the children. After the hearing the parties tried to organise contact between the applicant and the children in the manner agreed at the hearing but the children refused to come to the meeting.   63.     On 2 May 2012 I.B. informed the court that, at the suggestion of the supervising officer, he had on 27 April 2012 taken the children to the Split Polyclinic for Rehabilitation of Persons with Disabilities (Department of Child and Adolescent Psychiatry), where a psychologist had made an initial assessment and recommended that the children undergo psychotherapy. It would appear that soon afterwards I.B. started taking the children for regular treatment to Dr D.B., a psychiatrist from that polyclinic, with a view to overcoming their emotional and psychological difficulties and easing their resistance towards their mother. 64.     At the hearing held on 21 May 2012 the court heard the supervising officer. The relevant part of her statement reads: “The children refuse any cooperation and show resistance towards their mother, the strongest I have seen in my twenty-nine years of experience. At the mere mention of the mother, [the older son] starts to scream and shout and [the younger one] follows his brother’s example. ... [I]n a situation like this, one needs to work with the children, as otherwise they will turn into mentally unstable persons ... Before, there was at least some telephone contact between the mother and the children; now the children do not want to speak to her. ... [T]he mother has so far done everything she can, that is to say she has been calling, asking about the children. In my experience, there is nothing she can do in the present situation. In order to overcome this situation I have been instructing the father and advised him to encourage the children to accept the mother, to speak positively of [her]. When talking to me he cooperates and takes on board all my advice, but I do not know which [part of it he accepts], and how he implements it. In the beginning, when I commenced supervision ... I could talk to the children, but they are now firm and resolute in their stance ... In order to achieve any progress in this situation the children must be under constant treatment, and I also think that the parents need expert assistance in overcoming their [issues]. I also have to say that that I asked [the father] at the beginning of the supervision to visit the Family Centre and seek help there. I do not know if he did it.” 65.     At the same hearing the court decided to obtain an opinion and recommendation from the Split Social Welfare Centre. In so doing the court stated: “The Court would draw the attention of [the Social Welfare Centre’s] expert ... team to the need for the children to undergo therapy and treatment, and the need for the parents to be advised as to how to resolve their relationship and to have clearly defined limits as to what to do and how in this situation ...” 66.     After the hearing the applicant again tried to meet the children at their father’s home. The children refused to leave the house and closed the shutters. An employee of the Split Social Welfare Centre who was accompanying the applicant went into the house to talk to the children alone. The older son cried, refused to see the applicant and stated that he wanted her to leave. The younger son also refused to see and talk to the applicant, even for a short while. Eventually, the children came to the doorway just to tell the applicant that they did not want to see her, and then locked themselves in the house. 67.     On 12 June 2012 the Split Social Welfare Centre submitted its report and recommendation. Bearing in mind the risks involved in meetings held without expert supervision and the necessity to gradually re-establish contact between the applicant and her children, the Centre recommended contact once a month in S. under the supervision of the supervising officer. Although the Centre was ready to organise meetings on its premises, it advised against it because the children had refused such an arrangement in the past. Instead, it proposed that the meetings take place elsewhere outside the father’s home, for example in a park or a playroom. The relevant part of the report reads as follows: “Since the beginning of the implementation of the supervision measure the children have not had regular contact with the mother. Both boys have been openly resisting meeting the mother ... by complaining, refusing, crying, and expressing anger and fear of the mother. This is confirmed by all reports of the supervising officer, psychiatrists’ reports and the psychologist’s report dated 27 April 2012. The recommendations of the specialist, the expert ... team and the supervising officer are to provide the children with psychological support with a view to processing difficult emotions related to the situation in the family and their relationship with the parents. Even though in the context of the supervision measure the children are provided with counselling at which topics related to the parents and contact with the mother are discussed, this has not brought positive results in the sense of significant changes in the children[‘s behaviour]. It is therefore necessary to involve the children in psychotherapy. The father was therefore instructed to visit the Split Polyclinic for Rehabilitation of Persons with Disabilities, an expert team of the Department of Child and Adolescent Psychiatry. The father accepted this, and the treatment at the Polyclinic commenced in April 2012. Taking into account primarily the interests of the children, we are of the opinion that contact with the mother has to be regulated gradually, by following the children’s emotional capacities, the course of the psychotherapy, [etc.] ... ... It is to be noted that any involvement of children in conflict between parents ... inevitably has harmful consequences for their development. Denial of free and regular contact between a parent and a child is the most common ... way of inflicting suffering on a child. To demand from a child that it choose between the parents constitutes violence against the existentially determined loyalty to both parents. Influencing the child [in such a way that he or she] has a bad opinion of the other parent will generally worsen that child’s opinion of himself or herself. [Exercising force towards] children in any way necessarily has harmful consequences for their emotional development. Both parents have been informed of this [and] advised [accordingly] ... Through their appropriate behaviour and relationship parents have the power on their own to help their child to overcome the crisis and continue his or her development without harmful consequences. In circumstances where the parents do not have sufficient capacity [to do so] professional assistance should be sought for the children. ... Only with professional assistance and by establishing a minimal level of cooperation between the parents may one expect to establish unhindered contact between the mother and the children. In the current circumstances we are of the opinion that contact should be established gradually, by the mother visiting the children, at their place of residence, the last weekend in every month, on Saturdays from 3 a.m. to 7   p.m., and on Sundays from 11 a.m. to 3 p.m. It is suggested that contact take place in the presence of the supervising officer, N.Đ. ... who undertakes to coordinate between the parents the place [of the meetings] and the manner of collecting and returning the children. In addition, it is necessary to follow the course of the children’s psychiatric treatment and to respect the recommendations, instructions and opinions of the psychotherapist. Once contact between the mother and the children is established, the times of their contact may be extended and could include holidays.” 68.     In her opinion of 17 July 2012 the psychiatrist Dr D.B. (see   paragraph 63 above) stated that during the first two therapy sessions she could not gain the children’s trust, and that they perceived any contact with their mother as a threat to the current state of affairs and as bringing a change they could not accept. 69.     By a decision of 6 August 2012 the Split Municipal Court ordered that contact between the applicant and her children was to take place on the last weekend of every month, specifically on Saturday from 3 p.m. to 7 p.m. and on Sunday from 11 a.m. to 3 p.m., under the supervising officer’s supervision. It refused the applicant’s request to be allowed to spend two weeks in August 2012 with her sons. In so deciding, the Municipal Court relied on the opinion and recommendation of the Split Social Welfare Centre (see paragraph 67 above). 70.     In an opinion dated 10 September 2012 the psychiatrist, Dr D.B., stated that the older child was refusing to cooperate during therapy sessions and that he was crying and saying that he wanted to go home and felt that his rights were being violated. 71.     On 1 December 2012 the applicant again attempted to meet the children at their home. The children again refused to meet her and did not even approach her. The older son was crying, was verbally aggressive and told her that he did not want her and that she should go away. The younger son ran away from her and told her that he did not want to go to her. 72.     On 10 January 2013 the Split County Court dismissed an appeal by the applicant against the first-instance decision of 6 August 2012 (see   paragraph 69 above). 73.     It would appear that in March 2013 I.B. stopped (regularly) taking the children for therapy to Dr D.B. (see paragraph 63 above). 74.     On 2 May 2013 the applicant met in person with Dr D.B., who suggested discontinuing the treatment because the children cried during the therapy sessions and she could not achieve anything. 75.     On the same day the applicant again tried to meet the children at their home. The children yet again refused to meet her. 2.     The second set of proceedings 76.     On 13 June 2013 the applicant instituted another set of proceedings before the Split Municipal Court, seeking a change in the contact arrangements. 77.     On 26 June 2013 the court invited the Ivanić-Grad and Split Social Welfare Centres to make a psychological evaluation of the family and to submit a joint opinion and recommendation. The centres nevertheless submitted separate opinions on 26 July and 11 September 2013 respectively. The report of the Split Social Welfare stated that the children had refused to come to the Centre’s premises for psychological evaluation, so the Centre’s psychologist had visited their home. During the interview the children had avoided talking about the contact with their mother and had expressed their anger and discontent. Since, despite the supervision measure and psychiatric treatment, the children had continued to refuse to see their mother, the Centre recommended obtaining an opinion from an expert in psychiatry with a view to determining the causes of their behaviour. 78.     On 29 June 2013 the applicant went to visit the children, who again refused to see her. The older son was shouting and cursing at her, telling her to go home and that he did not need her. 79.     In her report of 19 September 2013 the psychiatrist Dr D.B., who was treating the children, informed the Split Social Welfare Centre that in her opinion continuing their psychiatric treatment would be counterproductive because the children had been resisting it, had not been cooperating and had engaged in strongly negative emotional outbursts during therapy sessions. It would appear that the treatment nevertheless continued upon the intervention of the supervising officer and the Split Social Welfare Centre. The therapy session of 14 January 2014 was attended by an employee of the Split Social Welfare Centre, who explained to Dr D.B. that the main goal of the therapy was to facilitate the children’s contact with their mother. However, Dr D.B.’s and the Split Social Welfare Centre’s reports of 11 March 2014 suggested that no progress had been made, despite the continuation of the treatment. The report of the supervising officer dated February 2014 suggested that the children had been refusing psychotherapy or to participate in any other activity (such as going to the Social Welfare Centre) which entailed talking about their mother. 80.     Meanwhile, at a hearing held on 11 November 2013 the Split Municipal Court heard the parties and the representative of the Split Social Welfare Centre and decided to obtain a combined opinion from forensic experts in psychology and psychiatry with a view to determining the causes of the children’s refusal to have contact with their mother. It appointed the same experts who had prepared the opinion of 10   May 2010 (see paragraph   27 above). 81.     In the period between 20 and 24 March 2014 the Split Social Welfare Centre unsuccessfully tried to organise a meeting between the applicant and the children at Dr D.B.’s office. For that purpose the Centre’s officials visited the children’s home and explained to them that their mother did not want to take them away from their father but that she just wanted to see them. The children were nevertheless very upset and angry. On the same occasion the father was advised to encourage the children to have contact with the mother and to continue their therapy, either with Dr D.B. or with a different therapist. 82.     On 24 March 2014 the applicant intercepted her younger son on his way back from school. She asked him to stop and talk to her, at which point he ran away from her, upset and in tears. 83.     On 7 April 2014 the Split Social Welfare Centre filed a criminal complaint against I.B. with the Split Municipal State Attorney’s Office ( Općinsko državno odvjetništvo u Splitu ) accusing him of – by not taking the children regularly to Dr D.B. for psychotherapy – committing the criminal offence of non-execution of a child protection measure, as defined in Article   173 of the Criminal Code (see paragraph 106 below). 84.     On 3 June 2014, having consulted the documents in the case file, the court-appointed experts (see paragraph 80 above) in a joint letter asked the court to exempt them from the role of experts in the case. They criticised the way the judicial and welfare authorities and various experts had handled the situation in the applicant’s family since they had delivered their previous expert opinion of 10 May 2010 (see paragraph 27 above). In particular, they: - stated that the children had been manipulated by their father and that their refusal to have any contact with their mother was completely irrational and resulted from the conflict of loyalties they had been drawn into; - criticised the opinions of Dr J.Š., who in their view had (a) failed to adequately explain the radical change in the children’s behaviour after they had spent the summer holidays of 2010 with their father, (b) failed to recognise that change as an obvious symptom of the children’s conflict of loyalties, and (c) recommended that the children’s wish to continue to live with their father be respected (see paragraphs 45-46 above), thus ignoring their long-term interests; - pointed out that the judicial authorities had ignored the Split Social Welfare Centre’s recommendation of 1 September 2010 that a supplementary expert opinion be obtained from them (as the experts who had on 10 May 2010 prepared the earlier opinion in the case – see   paragraphs 27 and 39 above) and, instead of ordering a combined (psychiatric and psychological) evaluation of both parents and the children by a clinic in Zagreb, had only ordered a psychiatric evaluation of the parents by an expert from Split (see paragraphs 47-48 above). The experts concluded: “... Given that [we] had already made an expert evaluation of the family and in May 2010 submitted [our] opinion to the court, which was, to the detriment of the children, not accepted, we ask the court to accept our request for exemption. ... [We] cannot disregard the fact that the children are being forced to choose for themselves whether they want to have contact with their mother or not – a developmentally inappropriate task [for them] – and that, even though the father verbally does not oppose the contact, non-verbally and by hi