CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 29 octobre 2019

.s800EAC49 { font-size:12pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sC6BCF4B7 { margin-top:0pt; margin-bottom:0pt; border:0.75pt solid #000000; padding:1pt 4pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s7A18460C { margin-top:18pt; margin-left:11.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5830ECD9 { width:0.2pt; display:inline-block } .s53CD6AF4 { width:186.77pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FOURTH SECTION               CASE OF STANKŪNAITĖ v. LITHUANIA   (Application no. 67068/11)         JUDGMENT     Art 8 • Respect for family life • Proceedings regarding parental rights • Requisite diligence of the national authorities • Involvement in decision-making process • Positive obligations     STRASBOURG   29 October 2019       FINAL   29/01/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stankūnaitė v. Lithuania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Faris Vehabović,   Branko Lubarda,   Carlo Ranzoni,   Jolien Schukking,   Péter Paczolay, judges,   Danute Jočienė, ad hoc judge, and Andrea Tamietti, Deputy Section Registrar, Having deliberated in private on 8 October 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   67068/11) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Ms Laimutė Stankūnaitė (“the applicant”), on 2   September 2011. 2.     The applicant was represented by Mr   G.   Černiauskas, a lawyer practising in Kaunas. The Lithuanian Government (“the Government”) were represented by their former Agent, Ms E.   Baltutytė. 3.     The applicant alleged that proceedings regarding her daughter’s temporary guardianship and return to her had been in breach of Article 8 of the Convention. 4 .     On 3   February 2012 the Government were given notice of the application. 5.     Mr Egidijus Kūris, the judge elected in respect of Lithuania, withdrew from sitting in the case (Rule 28 § 3 of the Rules of Court). Accordingly, the President of the Section appointed Ms Danutė Jočienė to sit as an ad hoc judge (Article   26 §   4 of the Convention and Rule 29 § 1 (a) of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the case 6.     The applicant was born in 1986. Her current address is unknown to the Court (see paragraphs 14 and 105 in fine below). 7.     The applicant lived with D.K. On 19   February 2004 a daughter was born to the couple, who were not married. 8 .     On 19 March 2008 the Vilnius City First District Court approved a settlement agreement between the applicant and D.K., who by that time had been living separately, in which it was agreed that the daughter would live with D.K. The first-instance court’s decision was upheld by the Vilnius Regional Court on 29   May 2008, which dismissed the applicant’s appeal. The applicant retained the right to see her daughter and would periodically take her to her home. 9 .     On 30   November 2008, on the basis of an application by D.K., the authorities started a pre-trial investigation on suspicion that the girl had been sexually molested (Article 153 of the Criminal Code, see paragraph 85 below) by a certain A.Ū. (also see paragraphs 26-28 below). D.K. alleged that the crime had taken place in the applicant’s rented apartment in Kaunas, and in her presence. B.     D.K.’s application to restrict the applicant’s parental rights and the applicant’s contact with her daughter until December 2009 10 .     On 22   December 2008 D.K. lodged an application with the Kaunas City District Court to restrict the applicant’s parental rights. He argued that, pursuant to the settlement agreement, the applicant had been communicating with their daughter and taking her to her home. According to D.K., when the girl had returned to him having visited her mother between 21 and 23   November 2008, she had started telling him about how her mother and some men who had come to her mother’s home had been behaving with her. D.K. noted having already lodged an application with the police regarding his daughter’s molestation, and that a criminal investigation had been opened (see paragraph   9 above). D.K. then asked the court to apply temporary protective measures in order to restrict the applicant’s ability to see her daughter until the civil case for the restriction of her parental rights had been resolved. 11 .     By a ruling of 23   December 2008 the Kaunas City District Court granted D.K.’s request for temporary protective measures, prohibiting the applicant from seeing her daughter until the civil case for the temporary restriction of her parental rights had been terminated. The court noted that a pre-trial investigation had been opened concerning the alleged sexual molestation. Accordingly, there was sufficient basis to apply temporary protective measures. The court also cited Article 3.65 § 2 (7) of the Civil Code as the legal basis for the measures (see paragraph 79 below). 12 .     However, following an appeal by the applicant, by a ruling of 27   April 2009 made in written proceedings the Vilnius Regional Court varied the temporary protective measure by allowing the applicant to see her daughter in the presence of a representative from the Kaunas city childcare authorities. The Regional Court pointed out that any suspicions against the applicant had not yet been proven, therefore to completely forbid the child from seeing her mother could be detrimental to the child’s best interests. 13 .     On 8   July 2009 the Kaunas City District Court amended the contact order between the applicant and her daughter: they were to meet twice a week between 9 and 11 a.m. at the premises of the Kaunas city childcare authorities, in the presence of their representative. D.K. was responsible for taking his daughter to those meetings. The court also suspended the examination of the civil case concerning the restriction of the applicant’s parental rights until the pre-trial investigation in the criminal case about the girl’s sexual molestation had been terminated. The applicant and her lawyer took part in that hearing. 14 .     By a final ruling of 15   December 2009 the Vilnius Regional Court examined an appeal lodged by the applicant and essentially left the District Court’s decision of 8   July 2009 unchanged, with the exception that D.K.’s sister N.V. had become responsible for taking the girl to the meetings, which were to take place in a secure location designated by the Lithuanian witness protection authorities, and in the presence of a representative from the childcare authorities. The reason for that was a change in circumstances – there had been an incident on 5   October 2009 in which two people had been shot (see paragraphs   16 and 17 below), and State protection had been instituted in respect of both the applicant and her daughter. When upholding the temporary protective measure as set out earlier, the Regional Court highlighted the principle that priority had to be given to the interests of the child. It relied on Article 3.3 §   1 of the Civil Code and Article 4 § 1 (1) of the Law on the Fundamentals of Protection of Children’s Rights (see paragraphs   77 and 79 below). The Regional Court also considered that the District Court had properly assessed the situation, having taken into account the opinion of the Kaunas childcare authorities, which had been the institution providing a conclusion in the case. Lastly, it pointed out that the applicant had herself limited contact with her daughter in the past period, although it did not elaborate further. 15 .     According to the Government, who have not been contradicted on these points by the applicant, from 5 October 2009 onwards the meetings between the girl and the applicant did not take place based on reasons that lay with the latter. Specifically, on 27   October 2009 the applicant asked the childcare authorities to postpone her meetings with her daughter. She resumed the meetings on 17   December 2009. Despite being informed in writing, the applicant also failed to appear at a review meeting concerning the drafting of a temporary guardianship plan for her daughter, which had been organised by the childcare authorities to take place on 21   October 2009. C.     Events leading to the decision to establish temporary guardianship for the applicant’s daughter 16 .     On 5   October 2009 two people were gunned down in Kaunas. One of them was a judge of the Kaunas Regional Court, J.F., the other was the applicant’s sister, V.N. It was suspected that D.K. had committed that crime. He fled from the law enforcement authorities and, in rather unclear circumstances, was found dead on 17   April 2010, the day which the court later pronounced as his date of death. On the basis of expert reports, including from the Swedish National Forensic Service ( Rättsmedicinalverket ), the Lithuanian authorities found that D.K. had actually died from alcohol and drug poisoning, and that he had choked on the contents of his own stomach. 17 .     On 8   October 2009 the director of the Kaunas Municipal Administration, on the basis of Articles 3.261 and 3.265 of the Civil Code (see paragraph 79 below), issued a temporary guardianship in respect of the applicant’s daughter, effective as of 5   October 2009. She was supposed to reside at the child development centre at the Vilnius University Hospital. Afterwards, on 12   October 2009 the director of the Kaunas Municipal Administration, on the basis of Article   3.264 of the Civil Code (see paragraph 79 below), appointed N.V., who was D.K.’s sister and a judge at the Kaunas Regional Court, as the temporary guardian of the child who should live with N.V. at her home in the township of Garliava, in Kaunas district. The decision stipulated that it could be appealed against under the rules set out in the Law on Administrative Proceedings (see paragraph 86 below). No such appeal was lodged. D.     Criminal proceedings 1.     Termination of the criminal proceedings against the applicant 18.     During the pre-trial investigation regarding the sexual molestation of the applicant’s daughter (see paragraph   9 above), the prosecutor questioned a number of individuals, including the applicant, D.K., A.Ū. (the main suspect) and J.F. At a certain point additional charges of sexual assault under Article 150 § 4 of the Criminal Code were brought in respect of the applicant, her sister V.N., as well as A.Ū. and J.F. 19 .     In the course of the pre-trial investigation the authorities questioned the applicant’s daughter as a victim on four occasions: on 17 and 30   December 2008, and on 9   June and 23   October 2009. Her testimony varied: during the first two interviews she said that acts of molestation had been performed on her by the suspect A.Ū., and also testified that her mother had been present. Later, however, her account of what had happened became more and more detailed. According to the submissions of D.K. and his relatives, and, partly, the interviews with the applicant’s daughter, she started remembering more and more details of her sexual abuse: that besides the main suspect, A.Ū., there were two other men who had molested and sexually assaulted her on a number of occasions and in the presence of the applicant and the applicant’s sister V.N.; this had taken place at the applicant’s home, V.N.’s home and a hotel. 20 .     In the course of the criminal proceedings the girl was assessed by the psychologist I.Č., whose conclusion of 12   August 2009 stated that the girl had been capable of talking about events that had happened in the past. That said, it was not possible to ascertain whether the girl’s experience had been direct, that is, whether the acts of sexual molestation had been performed on her, or whether that experience had been indirect, that is, whether she had watched the sexual acts of others, seen pornographic films, or heard adult conversations and questions on the topic. It was also not possible to ascertain whether those actions actually had been performed with the girl because later on she had been too often and improperly questioned about the alleged sexual abuse. The psychologist also addressed, as a separate matter, the video material provided by D.K. with the girl’s accounts of sexual abuse. The psychologist pointed out that the very clear and specific description of A.Ū. provided by the girl in the video-recordings, that her father had given to the authorities, had differed from how she had described him in her interview with the authorities of 17   December 2008. The psychologist concluded that the father had influenced the girl’s real experience by constantly talking with his daughter about that topic and giving her leading questions. 21 .     The State Forensic Psychiatry Service’s specialist report no.   92TPK ‑ 1 of 25 November 2009, based on the psychological assessment of the girl, also supported the conclusions of psychologist I.Č. According to this report, the girl’s age and individual experience, as well as the fact that from the start of the talks about sexual violence she had been living with her father, could have had an impact on her testimony. In general, the information which the girl had obtained from the adults, and the adult conversations and opinions expressed in her presence, had influenced the child’s understanding about those events and the way she had described them. For children of her age, recognition and positive evaluation by adults, especially those who were important to them and had authority, was important. Accordingly, in order to please, children would adjust their statements and answer as asked. 22 .     On 26   January 2010 a prosecutor at the Vilnius Regional Prosecutor’s Office discontinued the criminal investigation in respect of the applicant and the two people who had been shot, V.N., and J.F. (see paragraph 16 above), holding that they had not committed the crimes of sexual assault and sexual molestation (Articles   150 §   4 and 153 of the Criminal Code). Among other evidence, the prosecutor relied on the conclusion by the forensic psychiatrists, which had evaluated the applicant’s daughter’s testimony as not entirely credible, given that she had been questioned while she had already been living with her father and his family members, who could have indirectly influenced her perceptions (see paragraphs 20 and   21 above). Moreover, in none of her interviews or occasions when her behaviour had been observed had the specialists noticed any behaviour to show that she had experienced long-term sexual abuse. The girl’s testimony had not been sufficiently precise and consistent. In so far as the suspect A.Ū. was concerned, the suspicions against him were changed to sexual molestation, and he was charged with that crime on 23 February 2010. The prosecutor informed the girl’s representative N.V. about the right to challenge this decision via a higher prosecutor. 23 .     N.V. then challenged the prosecutor’s decision. Having examined the material in the pre-trial investigation file, on 23   February 2010 a higher prosecutor dismissed the appeal, upholding the decision of 26   January 2010 as reasonable and sound. 24 .     By a final and unappealable ruling of 3   November 2010 the Panevėžys Regional Court upheld the prosecutors’ conclusions as well ‑ founded. The court observed that when considering the girl’s testimony, the circumstances in which the testimony about sustained sexual abuse had been given had been particularly important. The same importance should have been attributed to the specialists’ conclusions. Those circumstances had been examined in this case – the girls’ family members had been questioned and the prosecutors had stated their opinions about the credibility of that testimony. The Regional Court also stressed that, as established by the prosecutors, the dispute between the applicant and D.K. over their daughter had started in 2006, and their relationship had become hostile. Moreover, as pointed out by the prosecutor in the decision of 23   February 2010, the video recordings which D.K. had made of the girl clearly showed that on more than one occasion it had been talked at length with the girl about sexual actions and sexual violence, and in this way her understanding of sexual experience and her subsequent statements had been influenced (see also paragraphs 20 and 23 above). The Regional Court noted that the prosecutor’s assessment had been based on the experts’ opinion and specialists’ conclusions, as well as D.K.’s own admission that the video-recordings had started to be made in December 2008, that is, from the very beginning of the pre-trial investigation (see paragraph   9 above). It also pointed to the conclusions by the psychologist I.Č. and the report no.   92TPK-1 (see paragraphs   20 and   21 above). 25 .     As to the applicant, the Regional Court noted that the prosecutor’s decision to discontinue the pre-trial investigation had been based on the gathered material, which had been carefully and thoroughly examined.     Although N.V. and her family members had claimed that the applicant’s involvement in her daughter’s sexual abuse and molestation had been proven by the girl’s testimony, the Regional Court considered that testimony to be inconclusive. It upheld the prosecutor’s conclusions that the vague and inconsistent data could not form a basis for holding that the applicant had been involved in the girl’s molestation. 2.     A.Ū.’s death and posthumous acquittal 26 .     As to the main suspect in the case, A.Ū., on 23 February 2010 a bill of indictment on charges of sexual molestation of a minor (Article 153 of the Criminal Code) was drawn up and the criminal case was transferred to the court for examination. 27.     However, on 13   June 2010 A.Ū. was found dead. By a decision of 17   November 2010 the District Court discontinued the criminal case against A.Ū. on the grounds that the accused had died. It was later reopened at the request of A.Ū.’s relatives, who sought to clear his name. 28 .     By a judgment of 30   November 2012 the Vilnius City Second District Court acquitted A.Ū. in respect of the charges of sexual molestation, under Article   153 of the Criminal Code. That judgment was upheld by the Vilnius Regional Court on 10   April 2013, which held that the charges had not been proven. In its reasoning the Regional Court also extensively relied on the psychologists’ conclusions (see paragraphs 20 and   21 above). 3.     Pre-trial investigation against D.K. on account of the disclosure of information about his daughter’s private life to the public 29 .     On an unspecified date in 2009 the authorities started a pre-trial investigation in respect of D.K. on the grounds that he, by sending to the media and other individuals filmed recordings of his daughter recounting the sexual acts possibly performed against her, had not only made public the material of a criminal investigation, but had also made public information about his minor daughter’s private life, it being degrading to her honour and dignity. The criminal investigation against D.K. was based on allegations of abuse of parental rights and duties (Article 163 of the Criminal Code, see paragraph   85 below). It was discontinued on 3   May 2010, upon D.K.’s death (see paragraph 16 above). E.     Civil proceedings for the child’s return to the applicant 1.     The applicant’s request that her daughter be returned to her care, and the applicant’s contact with her daughter until December 2011 30 .     On 23   December 2009 the applicant applied to the Kėdainiai District Court for a permanent residence order in respect of her daughter. She submitted that she could take care of her daughter and that there had been no reason to prevent her and her daughter communicating. She also pointed out that her parental rights had not been restricted. 31.     Within those proceedings N.V. lodged a counterclaim, applying for residence in respect of the child and asking that the applicant’s parental rights in respect of her daughter be permanently restricted. 32 .     In the spring of 2010 the applicant asked the courts to lift the temporary protective measure, on the grounds that by a decision of 26   January 2010 the prosecutor had dropped the criminal charges against her (see paragraph   22 above). However, by a ruling of 4   June 2010 the Panevėžys Regional Court dismissed her request, noting that the contact schedule for the applicant and her daughter, as set out by the Vilnius Regional Court on 15   December 2009 (see paragraph   14 above), was sufficient for them to maintain contact and implement her parental rights.   The court also noted that in order to annul or change the temporary protective measure a factual basis was necessary. In the present case, such a basis could be the child’s suffering when living with the guardian or her interest in communicating with her mother. However, according to the court, the applicant had not provided any factual proof that her and her daughter’s relationship could break up because of the contact schedule set by the court on 15   December 2009, or that the existing contact order would be detrimental to the child’s interests, such as her not having proper conditions to grow and develop. The court also relied on the fact that an appeal against the prosecutor’s decision to discontinue the criminal proceedings against the applicant and her co-accused had been pending (see paragraphs 23 and 24 above). 33 .     According to the report of 14   December 2009 of the Psychological Support and Counselling Centre (a public institution), the temporary guardian N.V. and the girl had attended the centre on 16   November 2009 and psychological support had been provided to the girl once a week. The employees of the centre noted that the girl and N.V. had established a relationship of trust. They proposed that psychological support be continued. In the report of the centre of 17   February 2010 it was noted that N.V. had taken part in a training programme for guardians. 34 .     In January and February 2011, both the applicant and N.V. had asked the Kėdainiai District Court to order a number of examinations. In particular, the applicant asked if the experts could ascertain whether her daughter could objectively understand her surroundings and objectively express her wishes as regards her place of living, whether she could be influenced by the fact that she lived with her temporary guardian and in her home, and whether she could objectively answer the question whether she wished to live with her mother. For her part, N.V. asked if the experts could ascertain how the child’s psychological state would be affected should she have to change her place of residence, leave N.V.’s home and be transferred to the applicant’s care. 35 .     By a ruling of 8   February 2011 the Kėdainiai District Court approved those questions and ordered the experts at the State Forensic Psychiatry Centre to conduct the examination. 36 .     In the meantime, on 18   August 2011 the Kėdainiai District Court granted a request by the applicant regarding the times when she could see her daughter. As per the applicant’s wishes, the court changed the time for the meetings to 3 to 5 p.m. on Mondays and Thursdays, to adapt to the girl’s school attendance times. 37 .     Having assessed the girl, in October 2011 the psychiatrists issued report no.   103MS-143.   They found that because of her age, emotional development and state of mind the girl could not fully grasp her situation and could not form an independent opinion as to where she preferred to live. As a result, they recommended that the girl should not be questioned in court. Even though the girl had stated that she wished to live with her temporary guardian N.V., she could not explain why. Furthermore, the child’s view was predetermined by objective facts, namely that she could not remember the time when she had lived with her mother and that she was currently residing with N.V.’s family, who had a negative attitude towards the applicant. The psychologists also pointed out that both her mother and the temporary guardian were emotionally important persons for the child; she therefore avoided talking not only about them but also about the matter of where she should reside. The psychologists observed  having noticed no difference in the child’s communication with her mother and N.V. – that she felt a strong connection and had a sense of security with both of them, who could both properly take care of the girl. Lastly, the psychologists noted that the natural and essential need of every child was to live with their parents   –the mother in this case  and that the child’s transfer to her mother would not have negative impact on her psychological state. Mutual goodwill between the applicant and N.V. and the latter’s family members could ease the girl’s adaptation to a new place of residence. 2.     The Kėdainiai District Court’s decision of 16 December 2011 38 .     On 16   December 2011, at a closed hearing in the presence of the applicant, her lawyer, N.V. and the childcare authorities, the Kėdainiai District Court held that the applicant could exercise her parental rights unrestrictedly. It ruled that the girl should reside with her mother. A counterclaim by N.V. that the girl should stay with her was dismissed. The court ruled out that there would be any danger for the girl if she was returned to her mother. Relying on the Court’s judgment in Schaal v.   Luxembourg (no.   51773/99, §§   48 and 49, 18   February 2003), the District Court emphasised that any criminal charges against the applicant had been dropped as unfounded by a final court ruling of 3   November 2010 (see paragraphs   24 and 25 above). It followed that it was necessary to reunite the applicant with her daughter as soon as possible. In that context the District Court also held that accusations which N.V. had flaunted against the applicant – that she had assisted in her daughter’s molestation – had been nothing more than a continuation of D.K.’s earlier efforts to have residence and to completely prohibit the mother from seeing her daughter. 39 .     The District Court relied on the Court’s case-law in Olsson v.   Sweden (no. 1) (24 March 1988, §   72, Series A no. 130) and Eriksson v.   Sweden (22 June 1989, §   58, Series A no. 156), to the effect that taking a child into care meant a very serious interference with the right to respect for family life. Separation of a biological family had to be supported by sufficiently sound and weighty considerations in the interests of the child. For the Lithuanian court, no such circumstances existed as concerned the continued separation of the girl and her mother. Firstly, there was no proof that the applicant had failed to properly take care of her daughter while they had lived together in 2006, or after their separation in 2008, when they had had supervised contact. Similarly, although N.V. had relied on the settlement agreement of 19   March 2008 in which the applicant had agreed that her daughter would reside with D.K. (see paragraph 8 above), the District Court considered that such a settlement agreement could not be treated as the applicant’s refusal of the child. The court considered that the applicant had convincingly explained that she had signed that agreement envisaging that her daughter would only be living temporarily with the father, also because at that time she had been studying and could only see her daughter on weekends. It was only after concluding the agreement that she had realised that she had been deceived, and had therefore immediately appealed against it. The court also pointed to the fact that the applicant had consistently fought for her right to live with her daughter. There were no circumstances in the case allowing for the conclusion that the applicant had ever failed to use her parental powers in respect of her daughter or that she had acted against the interests of her child. 40 .     Similarly, after J.F.’s and V.N.’s murder a search had been announced for D.K., the applicant had been placed under State protection and her right to communicate with her daughter had been restricted (see paragraphs 16 and 17 above). Separating them obviously affected their relationship, which became weaker. However, this fact could not be held against the applicant. In this connection the court relied on childcare specialists’ explanations and reports, according to which a negative attitude was being formed about the applicant at N.V.’s home, what had as a consequence that the applicant’s daughter had become introverted and had refrained from talking about her mother not only at home, but also with the kindergarten teachers or childcare authorities. The court also took notice of the forensic experts’ explanations in report no.   103MS-143 that although the girl had stated that she wanted to live with N.V., she could not explain that choice (see paragraph   37 above). For the court, one could only conclude that, not having been able to freely communicate with her mother as of May 2008, when D.K. had taken her (see paragraph 8 above), and having been transferred to N.V.’s care in October 2009 (see paragraph 17 above), the girl had become attached to N.V. because the latter had been the only familiar and close person whom she could trust. It was also probable that the girl, having no other choice and not understanding her mother’s situation (where and how she had lived), had hidden her feelings towards her mother (as confirmed by the testimony of the psychologists and kindergarten teachers). Accordingly, when assessing the girl’s emotional connection with her guardian, as explained by the experts, it was of paramount importance to understand that such feelings were not entirely natural, but based on a sense of “security”. Furthermore, the girl’s contact with her mother, in the present circumstances – twice a week and in the presence of others – could not be seen as free and uninterrupted. Such a lack of uninterrupted and regular communication could only lead to a further weakening of their relationship. That being so, the District Court also took note that since January 2010 the applicant had received regular assistance from a psychologist before her meetings with her daughter, so that they would run easier, which had had a positive effect on their communication. The psychological experts confirmed (report No.   103MS-143, see paragraph   37 above) that the girl’s relationship with her mother was strong, emotionally adequate and a “safe haven”. 41 .     The court acknowledged N.V.’s arguments that a close connection had been established between her and the applicant’s daughter, and that she loved the child and had the complete ability to take care of her. Even so, that was not sufficient to limit the applicant’s parental rights towards the child. On this point the District Court relied on the Court’s case-law to the effect that in such cases the child’s best interests were of paramount concern. This had two aspects: on the one hand, it was necessary to ensure that the child grew in a safe environment, and that in no circumstances could a mother have recourse to measures which could harm the child’s health and development (the court relied on Johansen v. Norway , 7   August 1996, §   78, Reports of Judgments and Decisions 1996 ‑ III). On the other hand, it was also obvious that the best interests of the child were to grow with his family, unless it was proven that the family was inappropriate, because to do otherwise would mean separating the child from his roots. Moreover, even though the national authorities had wide discretion when deciding whether to give the child to his or her biological parents, the family connection could be restricted only in “particularly special circumstances” and everything had to be done in order to safeguard the personal connection and, if and when possible, “restore the family” (the court cited Amanalachioai v. Romania , no.   4023/04, §   81, 26   May 2009). 42 .     The District Court also highlighted that the instant case did not concern a dispute between persons who were competing for the right to have the child in their care, where the main principle was the best interests of the child. In contrast, this was a dispute between the child’s mother and a temporary guardian, in which completely different criteria, defining the relationship between the child and the mother, applied. Given that no grounds to limit the mother’s rights had been established, priority had to be given to the right, acquired by the child at birth, to live in a family with her mother. In that context it was also noteworthy that N.V. had possibly failed to properly execute her duties as a guardian. In this respect, the Ombudsperson for the Protection of Children’s Rights’ report of 10   December 2010 criticised the actions of N.V., such as providing the media with information about the girl’s inner emotional state, thereby breaching the child’s interests. The Ombudsperson then recommended that the Kaunas childcare authorities guarantee the girl’s rights and pointed N.V.’s attention to the fact that information of a private nature should not be disseminated. The fact that N.V.’s negative attitude towards the applicant had affected the girl, as well as her failure to ensure that information related to the child would not be made public, had been noted also by the psychologists. For the court, such circumstances had to be evaluated as being counter to the aims of temporary guardianship, which, as a concept, in any case had the purpose of returning the child to the family, whenever the circumstances allowed. The need to reunite natural parents and a child had also been emphasised by the Court (the District Court relied on Scozzari and Giunta v.   Italy [GC], nos.   39221/98 and 41963/98, §   169, ECHR 2000 ‑ VIII). For the District Court, the conclusions of the forensic experts and childcare services had completely ruled out the need to limit the applicant’s rights as a mother, as demanded by N.V. 43 .     The District Court further emphasised that the girl would suffer irreparable harm if she was left to reside with N.V.: “The court considers that the girl’s interests would be seriously harmed if she stayed in the family of N.V., because that would mean that the girl’s inherent rights to family ties, to be brought up and live with her biological family, would be restricted without any lawful grounds. As it has been established by forensic experts, even without any particular influence, the girl has picked up the negative attitude of N.V. and her family towards [the applicant]. Therefore, if the girl continued living with N.V., and taking into account N.V.’s particularly negative attitude towards [the applicant], there is a big risk that [the applicant] and her daughter’s relationship will become weaker or will be completely disrupted. The court considers that N.V.’s negative influence would obstruct [the applicant] in preserving a relationship with her daughter, which would clearly and seriously breach the interests of the child.” 44 .     The District Court also referred to the Court’s case-law on the issue of prolonged access restriction. It quoted Dolhamre v. Sweden (no.   67/04, §   120, 8   June 2010) to the effect that following any removal into care, stricter scrutiny was called for in respect of any further limitations by the authorities, for example on parental rights or access, as such further restrictions entailed the danger that the family relations between the parents and a young child were effectively curtailed. The District Court emphasised that the applicant and her daughter had been separated for almost three years. During that time they could communicate only minimally, which had undoubtedly negatively affected their relationship. It was unlikely that continuous separation of the mother from her child would make their relationship stronger. For the District Court, it was of paramount importance that decisions determining family relations were not adopted merely because of a lapse of time or by simply upholding de facto situations. Accordingly, considering that the passage of time in the instant case was unacceptable because it could have irreparable consequences for the relationship between the child and her mother, with whom the former did not live, the court considered that its decision to return the girl to her mother had to be executed swiftly (Article   283 §   1   (4) of the Code of Civil Procedure, see paragraph   83 below). Given that the two had lived apart for a long time, the court set a term of fourteen days for the child to be returned to the applicant. During those fourteen days the applicant was to meet with her daughter daily, in the presence of child psychologists, and the duration of those meetings was to be increased by one hour until the meetings lasted six hours. If the childcare authorities decided that the girl was ready to move in with her mother earlier, she was to be returned in advance of the set deadline. 45 .     The District Court ordered N.V. to transfer the girl to the applicant within fourteen days, that is, by 30   December 2011. It quashed the temporary protective measures (see paragraphs   12, 14 and 36 above). The part of the court decision regarding the girl’s place of residence, the obligation on N.V. to transfer the girl and the lifting of the temporary protective measures were to be executed immediately, in accordance with Article 283 §§ 1 (4) of the Code of Civil Procedure (see paragraph   83 below). 46 .     As later established by another court, on the date the decision of 16   December 2011 was adopted N.V. took the girl out of school and started home schooling (see also paragraph 58 below). From that time onwards, crowds dissatisfied with the Kėdainiai District Court’s decision of 16   December 2011 would maintain a constant vigil around N.V.’s home in Garliava to “protect” the girl from being taken away. 47.     Afterwards, N.V. lodged an appeal challenging the part of the Kėdainiai District Court’s decision ordering the girl to be returned to her mother within fourteen   days.   By a ruling of 28   December 2011 the Panevėžys Regional Court refused to accept the appeal for examination on the merits, on the grounds that N.V. had failed to follow the rules of civil procedure. 48 .     By rulings of 28   December 2011 and 3 and 6   January 2012 the Panevėžys Regional Court again refused, on procedural grounds, to accept N.V.’s appeals in respect of the decision ordering the applicant’s daughter to be returned to the applicant by 30   December 2011. 49 .     By a ruling of 18 April 2012 the Klaipėda Regional Court dismissed N.V.’s appeal against the Kėdainiai District Court’s decision of 16   December 2011 and left it unchanged. 3.     The course of the girl’s transfer to the applicant after the Kėdainiai District Court’s decision of 16 December 2011 (a)     The applicant’s contact with the girl 50 .     The Government stated that the applicant had been provided with psychological consultations to strengthen her relationship with her daughter. She had attended a special training course for developing positive parental skills and received individual psychological consultations, as suggested and arranged by the Kaunas childcare authorities. The Government also submitted that, according to the childcare authorities, the applicant’s use of psychological support had been rather passive, and she had been encouraged to attend psychological consultations more than once. 51.     Given that the Kėdainiai District Court’s decision had obliged the Kaunas childcare authorities to organise the meetings between the applicant and her daughter, they had initially drafted a schedule for the meetings in a neutral location for the period of execution of that decision and until 30   December 2011. The childcare authorities had obtained N.V.’s signature to comply with that schedule and had also arranged for a psychologist to be present during those meetings; they had also arranged psychological support for the applicant, her daughter and N.V. Both parties had been offered the possibility of mediation, however, they had both refused that option. 52.     According to the Government, after the decision of 16   December 2011 N.V. refused to take the girl to the meetings with the applicant in a neutral location, on the pretext that the girl did not want to leave the house. With the efforts of the childcare authorities, the applicant could then see her daughter at N.V.’s house, and their meetings took place on 20, 23, 24 and 27   December 2011, and on 19   February 2012, the girl’s birthday. 53.     The Government submitted that on 16 March 2012 the applicant had asked the childcare authorities to organise meetings with the girl in a neutral location. Since the authorities had been aware of the girl’s refusal to leave the house, those meetings had taken place on 19, 21, 22 and 23 March 2012 at N.V.’s house, with the participation of childcare specialists and a psychologist on the last two dates (22 and 23 March 2012). 54.     The Government specified that following the unsuccessful handover of the girl on 23   March 2012 (see paragraph   62 below), the childcare authorities had taken steps to deal with the possible psychological consequences suffered by the child. Various means of psychological support had been proposed, including art therapy. 55 .     The Government also submitted that on 6   April 2012 an opinion concerning the emotional state of the girl had been received from a public institution, the Psychological Support and Counselling Centre. Accordingly, taking the girl’s state into account, a meeting with the mother, irrespective of location, would cause the child grave additional stress, and the relationship between the girl and the mother should be strengthened gradually. Therefore, the Kaunas childcare authorities suggested to the applicant that she should write letters to the girl, which they would read to her. The applicant actually wrote several such letters, and the girl responded. (b)     Writ of execution, bailiff’s actions and imposition of a fine on N.V. for failure to execute the District Court’s decision of 16 December 2011 56 .     On 16 December 2011 the Kėdainiai District Court also issued a writ of execution under which N.V. was obliged to transfer the child to the applicant. The bailiff instructed N.V., under signature, to return the child to the applicant on 30   December at the secondary school in Kaunas district, which the girl had attended. However, even though the bailiff as well as child psychologists and childcare specialists were present at the school on the specific date and time, N.V. did not show up and did not bring the girl. She did not answer her telephone either. The bailiff afterwards requested the childcare authorities to provide assistance with the execution of the court decision for the girl’s transfer, and they recommended that the transfer take place in a neutral environment. The childcare specialists noted that although the meetings between the girl and the applicant had been aimed at making the eventual transfer easier, during those meetings it had been concluded that N.V. had not been preparing the girl for her return to her mother. The bailiff then attempted to have the girl returned to the applicant on 11   January 2012 at the premises of Kaunas police headquarters in the presence of childcare authorities and a psychologist, but on that day N.V. again failed to show up and bring the girl. The following day N.V. wrote to the bailiff, alleging that she had been executing the court decision, but that the girl did not wish to meet her mother and live with her. 57 .     On 5   January 2012 the applicant asked the bailiff to fine N.V. for failing to execute the court decision, and the bailiff in turn requested the Kėdainiai District Court to impose a fine of 1,000 Lithuanian litas (LTL) (approximately 390   euros (EUR)) for each day the court decision remained unexecuted, which was the maximum amount under Article 771 § 5 of the Code of Civil Procedure (see paragraph   82 below). By a ruling of 29   March 2012 the court granted the bailiff’s request, but reduced the fine to LTL   200 (EUR   60) per day. As specified by the Government, on that basis N.V. paid a sum of LTL   28,000 (EUR   8,100) to the applicant. 58 .     By a ruling of 8   June 2012 the Šiauliai Regional Court dismissed an appeal of N.V. against the court’s decision to impose a fine on her (see paragraph   57 above). The court noted that after the pronouncement of the Kėdainiai District Court decision of 16   December 2011 the girl had been immediately taken out of school and then home schooled at N.V.’s home. In doing so N.V. had not only failed to prepare the girl for the transfer to her mother, but had also isolated her from the environment which she had been familiar with, and, without objective grounds, had restricted her ability to communicate with other children of her age, as well as her mother. This was confirmed by the Kaunas childcare authorities’ reports to the effect that when asked about the girl, N.V. had stated that it had been in the best interests of the child to stay at her home. According to those reports, N.V. had confirmed refusing to take the girl to the meetings with her mother. The appellate court also noted that on 11   January 2012 N.V. had not only not shown up, either alone or with the child, at the meeting which the authorities had set for the girl’s transfer (see paragraph 56 above), but had also not informed the other p