CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 octobre 2020

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ESTONIA (Application no. 41736/18)     JUDGMENT   Art 8 • Respect for family life • Ending of applicant’s joint custody of child and restrictions on contact • Domestic decision-making processes guided by aim of finding amicable solution in the best interests of the child and with meaningful participation of the applicant • Relevant and sufficient reasons given by domestic courts in ending joint custody • Applicant’s meetings with child subject to mother’s knowledge and consent • Relevant and sufficient reasons for decision against forced contact between applicant and child • Future meetings possible and no restriction on other forms of contact • Possibility to revise contact arrangements   STRASBOURG 20 October 2020 FINAL   20/01/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Suur v. Estonia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Marko Bošnjak,   Egidijus Kūris,   Ivana Jelić,   Arnfinn Bårdsen,   Darian Pavli,   Peeter Roosma, judges, and Stanley Naismith, Section Registrar, Having regard to: the application against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr   Tarvo Suur (“the applicant”), on 29 August 2018; the decision to give notice to the Estonian Government (“the Government”) of the application; the parties’ observations; Having deliberated in private on 15 September 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s complaint under Article 8 of the Convention regarding the ending of joint custody over his son, the granting of full custody to the child’s mother and the limiting of his contact rights with the child. The case also addresses the question of restoration of the relationship between the applicant and his son after not having had contact for several years. THE FACTS 2.     The applicant was born in 1986 and lives in Abja-Paluoja. He was granted legal aid and was represented by Mr R. Hallemaa, a lawyer practising in Tartu. 3.     The Government were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The applicant has a son, R.S., who was born in 2008, from a relationship with K.T. In 2009, when R.S. was one year and nine months old, the relationship between the applicant and K.T. ended. Their son continued to live with his mother. K.T. had a new cohabiting partner with whom she had lived for approximately five years by the time the custody proceedings began in 2015 and with whom R.S. appeared to have a good relationship – in the domestic proceedings, K.T.’s cohabiting partner was referred to as the “stepfather” of R.S. Prior to the commencement of the proceedings which form the subject matter of the case at hand, the applicant last saw his son in January 2011. 6.     The applicant is certified as partially incapacitated for work ( osaline töövõimetus ) and receives an allowance from the State as his only income. He has been making monthly payments of 45 euros to K.T. to support his son. It appears that at some point after 2009 the applicant opened bank accounts in the name of his son and used them to make bank transfers while his own accounts were frozen owing to debts. 7.     On 28 October 2015 K.T. lodged an application with the Pärnu County Court, seeking the termination of their joint custody ( ühine hooldusõigus ) over their son. She asked the court to grant her full custody over his person and over his property ( täielik isiku- ja varahooldus ). The applicant objected to the proposal. He argued that, inter alia , K.T. had changed her place of residence and phone numbers, which had hindered his contact with his son. He added that he had found out about his son’s whereabouts from the Internet in early 2015, but – considering the child’s interests and well-being – had not wanted to interfere with his life. 8.     On 15 April 2016 the applicant lodged a counter-application concerning contact arrangements with the child ( avaldus suhtlemise korra kindlaks määramiseks ). According to the applicant, his relationship with K.T. was conflictual. K.T. had not allowed him to meet his son, ignoring his wish to maintain contact with the child. He considered that K.T. had portrayed him in a negative light to their son. As R.S. had been very young when his parents’ relationship had ended, it was unlikely that he had any bad memories of his own of his father from the period prior to the break-up. 9 .     At the hearing on 19 June 2016 the applicant stated that after he had lost contact with his son (in 2011) he had not turned to the authorities, hoping instead that he and K.T. would be able to resolve the matter by themselves. He agreed with all the decisions K.T. had hitherto made with regard to R.S. He also agreed to the partial transfer of the right of custody to the effect that K.T. would have custody over the child’s property ( varahooldusõigus ) and the power of decision regarding the child’s “place of stay” ( viibimiskoht ) in the territory of Estonia. 10 .     During the proceedings before the Pärnu County Court, Pärnu City, as the guardianship authority ( eestkosteasutus ), Tarvastu Rural Municipality, where the applicant resided, and the child’s guardian ad litem ( määratud esindaja ) submitted their written opinions. 11 .     V.K., a lawyer who acted as the child’s guardian ad litem , relying on the documents in the case file, proposed that the living arrangements as they had been until then should be maintained and that the child should not be forced to communicate with his biological father, of whom he was wary ( pelgab ). As the child was estranged from his father, the guardian did not support a contact arrangement which would involve the applicant being left alone with the child. Instead he suggested that meetings could take place in a public place and in the presence of either the mother or a social worker. 12 .     The Pärnu City Government ( Pärnu Linnavalitsus ), after having met both of the parents, having made a home visit to R.S.’s home and having talked to him, considered it important to maintain the child’s habitual living arrangements, as they provided him with a sense of security. The City Government considered the ending of joint custody to be an extreme measure and thought it possible to find a compromise in the case, provided that the parents cooperated, prioritised the interests of the child and took into account his readiness to have contact with his father. As R.S. had expressed an unwillingness to meet his father, one way to facilitate their contact was to organise their meetings in the presence of the other parent so as to ensure that the child felt secure. It was noted that K.T. had expressed willingness to support her son’s contact with the applicant, provided that it did not hinder his well-being. The Pärnu City Government noted that it had offered the parents the possibility to meet at the premises of the city’s child protection service to try to find solutions. They had also informed the parents of the possibility either to have joint counselling or to refer R.S. to therapy. 13 .     Tarvastu Rural Municipal Government ( Tarvastu Vallavalitsus ), after visiting the applicant’s place of residence and after having talked to K.T. on the phone, concluded that the ending of joint custody would be premature. In order to facilitate contact between the applicant and his son, the first meetings could take place in an environment familiar to R.S. and in the presence of someone he knew. 14.     On 24 May 2016, after holding a hearing in the presence of all the parties to the proceedings, the Pärnu County Court decided to end joint custody over R.S. and grant full custody to K.T. It also partially allowed the applicant’s request to fix contact arrangements with his son. The court decided that in 2016 the meetings were to take place not less than once a month for two to three hours at a time, and in 2017 for six to seven hours at a time, at a place familiar to the child and in the presence of his mother or someone else he knew. The meetings were to be organised by telephone or email at least one week before they were supposed to take place. The applicant could meet his son outside the fixed contact hours in the event that R.S. expressed a willingness to do so. The applicant and his son were to participate in father-son family therapy organised by Pärnu City Government. The applicant appealed. 15 .     On 17 July 2016 the Tallinn Court of Appeal, after obtaining opinions from the Pärnu City Government, the Tarvastu Rural Municipal Government and from V.K., quashed the decision and remitted the case to the Pärnu County Court. The court considered that the first-instance court had not assessed all the relevant circumstances and evidence and had not sufficiently reasoned its decision. It referred to the possibility of K.T.’s reluctance playing a role in the applicant’s not having had contact with his son and in the latter’s negative memories of his father. It added that the contact arrangements set out in the impugned decision had not taken into account the mother’s earlier refusals to facilitate communication. The court stressed the importance of finding out the child’s own wishes. 16 .     On 19 August 2016 the Pärnu County Court proposed that the parties settle the case and gave them a deadline of 7 September 2016 for submitting compromise proposals. It appears that a compromise was not reached. 17 .     On 18 October 2016 the Pärnu County Court interviewed R.S. He stated that he did not want to have contact with the applicant, even if someone else was present at the meetings. He was not sure of the reason for that, but thought it might be due to the fact that the applicant had not shown any interest in him. He mentioned that his stepfather had told him that the applicant had got angry with K.T and had yelled at her. 18 .     It appears from the documents in the case file that during the court proceedings the applicant and K.T. attended some form of family counselling. At least one of those meetings took place in the presence of R.S. On 18 October 2016 the applicant notified the Pärnu County Court of the fact that K.T. had cancelled the latest counselling session with a family therapist, Ü.P., without informing him and had not responded to his request to arrange another session. 19 .     On 25 October 2016, after holding a hearing where the applicant and K.T. agreed to the suspension of the proceedings (V.K. and the Pärnu City Government also supported that suspension), the Pärnu County Court stayed the proceedings for three months. Its aim was to direct the applicant and K.T. to participate in out-of-court family counselling with a psychologist-family therapist ( psühholoog-pereterapeut ), A.T., in order to find an agreement as to custody rights and contact arrangements. The court ordered that R.S. be included in the counselling so that his relationship with his father could be restored. 20 .     Six counselling sessions took place. R.S. attended two of those sessions. On both of those occasions his mother and her cohabiting partner were present and on one of those two occasions R.S. was able to meet the applicant. 21 .     According to the opinion of the psychologist-family therapist A.T., submitted on 9 February 2017, it had become evident during the counselling that the applicant was a complete stranger to R.S., who had been very reluctant to meet with his father, furthermore stating that he did not want to meet him again. K.T. had said that the meeting had caused stress for the child. A.T. had consulted the school psychologist and had learned that R.S. had been anxious and tense in school on the days following the meeting. A.T. concluded that in the given circumstances it was not in the interests of R.S. to continue meeting with his father. 22 .     On 8 March 2017 the court proceedings were resumed and the court invited all the participants to submit their opinions. 23 .     Pärnu City Government, after having talked to both of the parents, considered that it was justified to modify the right of custody so as to reflect the actual living arrangements of R.S. Maintaining joint custody might hinder the child’s safe and stable living environment. In their opinion, ordering court-mandated contact arrangements between the applicant and R.S. was not in the latter’s interests as he had expressed reluctance to communicate with his father. 24 .     Tarvastu Rural Municipal Government did not support the termination of joint custody, but considered that it was necessary to give K.T. the right to decide over matters concerning the child’s person and property ( otsustusõigus isiku- ja varahooldust puudutavates küsimustes ). They also found that as R.S. did not, at that moment, want to meet with his father, it was not possible to order enforceable contact arrangements. However, they considered it necessary to find solutions for future communication so that R.S. could meet his father should he so wish. 25 .     R.S.’s guardian ad litem did not support the applicant’s request for the court to fix contact arrangements, as forced communication was not in the child’s interests. He considered that K.T.’s application for full custody was justified. 26.     On 20 March 2017 the applicant requested that the family counsellor A.T. be heard at the court and that counselling be extended by six months, but with Ü.P. as counsellor. He considered that the counselling provided by A.T. had been inadequate and had not yielded the results for which it had been set up. 27.     On 31 March 2017 the applicant lodged an application with the court, asking for the appointment of a special guardian ( erieestkostja – see paragraph 45 below), as the measures that had been taken until then had not attained the purpose of facilitating contact between him and R.S. 28 .     On 28 April 2017 A.T. was heard. She noted that during the counselling session where R.S. and the applicant had both been present the child had been very stressed. Taking this into account, she had proposed not to have any further meetings between the applicant and his son. In her experience in such circumstances it could be possible to restore the relationship between the child and the estranged parent, but it required willingness on the part of all parties. If the child were pressured to meet the parent, it could result in him refusing any further contact. However, if the communication were to take place in the form of text messages and emails, the child would be left with a choice as to whether to respond or not. 29 .     On 19 May 2017, taking into account the submissions of Pärnu City Government, Tarvastu Rural Municipal Government and R.S.’s guardian ad litem , the Pärnu County Court decided to terminate joint custody over R.S. and granted full custody to K.T. The court reasoned that it had been the mother who had raised the child since the applicant and K.T. had broken up, R.S. had not seen his father for several years and the child had been unwilling to meet his father. Moreover, the applicant had opened bank accounts in the name of his son and used them for himself while his own accounts had been frozen due to debts. The court noted that the applicant had admitted at a hearing that he agreed to everything that K.T. had hitherto decided in respect of their son. The court dismissed the applicant’s application for the fixing of contact arrangements and, of its own motion, partly restricted the applicant’s contact with the child, allowing meetings with the knowledge and consent of K.T. only. The court explained that generally the parent who did not have custody had the right to contact with his or her child. However, this right could be restricted if communicating with that parent was not in child’s interests. Given the circumstances of the case at hand, the court decided that ordering mandatory contact arrangements between the applicant and R.S. would pose a threat to the child’s mental health and development. It was not necessary to limit communication by means of letters, emails, phone calls or text messages, as this left the child with the choice of whether to respond or not. The court also dismissed the application to appoint a special guardian by explaining that a special guardian could not organise communication between the parent and the child in a way that contradicted the child’s interests. The applicant appealed. 30 .     On 22 September 2017 the Tallinn Court of Appeal, after having received opinions from Pärnu City Government and the child’s guardian ad litem , dismissed the applicant’s appeal. Noting that it had been justified to end the joint right of custody over R.S., the Tallinn Court of Appeal found that the applicant had mainly challenged the lower-instance court’s decision in so far as it concerned his contact rights with the child. The court underlined that the child’s unwillingness to meet with his father ­ – which he had expressed on several occasions  was decisive in this regard. The court considered that a nine-year-old was capable of expressing his will and noted that it did not have grounds to consider that the child had been influenced when making his statements. It was not uncommon that the child was not ready to communicate with the parent who had been absent from his life for several years. The fact that forced communication would damage the child had been proven by the opinion provided by A.T., the reliability of which the court did not have grounds to question. The court did not consider it necessary to ask for further opinions from Ü.P., the school psychologist or a psychiatrist whom the child had allegedly been seeing. The applicant still had the possibility to meet R.S. with the consent of K.T. but this required cooperation and understanding from both parents. The applicant was free to suggest means and ways of communication which would be acceptable to the child and which would not entail the latter being forced. As the main reason for not fixing contact arrangements at the time in question was the child’s unwillingness to communicate with the applicant, it was irrelevant to address the applicant’s claim that R.S. had been estranged from his father as a result of the actions of K.T. and that the latter had influenced the child’s feelings about his father. The applicant’s request to extend the counselling sessions with Ü.P. was dismissed, as it had been proven that continuing the meetings was not in the child’s best interests. 31 .     The applicant appealed to the Supreme Court. He claimed that during the proceedings K.T. had not responded to his messages on social media or to his emails concerning his son. In addition, without informing the applicant, K.T. had changed her place of residence and R.S.’s school. The applicant submitted additional evidence to that effect. It appears that K.T. also submitted documents concerning SMS exchanges and email exchanges between herself and the applicant. 32 .     On 6 April 2018 the Supreme Court, after having received written opinions from all the parties to the proceedings, dismissed the applicant’s appeal on points of law. Addressing the termination of the joint right of custody over R.S., the Supreme Court stressed that despite the full right of custody being granted to one parent, under section 143 of the Family Law Act ( perekonnaseadus ), the other parent retained the right and the obligation to communicate with the child. The Supreme Court went on to modify the reasoning of the Tallinn Court of Appeal concerning the contact arrangements between the applicant and R.S. The Supreme Court found that, contrary to what the Tallinn Court of Appeal had stressed, it was not the will of the child but rather the interests of the child that were conclusive when deciding on the contact arrangements between the child and his father. In the case at hand, the courts had in substance found that, under the circumstances and at that point in time, it was indeed not in the interests of R.S. to have to communicate with the applicant. The child had to be afforded time to adapt to the new situation. Forcing him to have contact with his father might lead to the opposite outcome where the child might refuse any contact altogether, which would make restoration of the relationship in the future even more difficult. The applicant’s claim that he had been estranged from his child owing to the actions of K.T. did not alter that finding. The Supreme Court refused to admit the additional evidence referred to in paragraph 31 above, stating that it was not for it to examine evidence. 33.     One judge of the Supreme Court gave a dissenting opinion, noting that the Pärnu County Court had, of its own motion, practically excluded any contact between the applicant and his son. He noted that neither the child’s guardian ad litem nor the involved local authorities had requested such measures. Moreover, the Pärnu County Court had restricted contact more extensively than the same court had done in its first decision on the matter, which the Tallinn Court of Appeal had quashed. In a situation where the parents were arguing over custody and contact rights, contact between the child and the parent who did not have custody could not be left to be decided by the parent with whom the child lived. In his opinion, the courts had not fulfilled their task to facilitate the restoration and continuation of the child-parent relationship. The lower-instance courts had essentially justified the need to restrict contact by referring to the child’s wishes and had based their conclusions on the claims made by K.T., not on the evidence. The judge furthermore considered that the statements R.S. had made at a hearing had not been based on his personal experience but rather on what he had heard from his mother and stepfather. He also pointed out that the opinion given by A.T. had been based on the claims made by K.T. and by the school psychologist, who had not been examined by the court. It would have been pertinent to examine Ü.P., the other family therapist, who had offered counselling in the case and who had considered it possible to restore communication between the applicant and his son. RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic legislation Code of Civil Procedure 34 .     Article 219 § 2 of the Code of Civil Procedure ( tsiviilkohtumenetluse seadustik – hereinafter “the CCP”) concerns court-appointed representatives (guardians ad litem ). Article 219 § 2 (3) provides that in a family matter a representative must be appointed if the case concerns deprivation of custody over the person in full. 35 .     Article 552 § 2 provides that in proceedings concerning minors or guardianship, the court must obtain the opinion of a rural municipal government or city government and send it the transcripts of the orders whereby the proceedings were terminated. 36 .     Article 552-1 § 1 provides that in matters concerning a child the court has to interview a child of at least ten years of age in person unless otherwise provided by law. The court can also interview a younger child. 37 .     Article 558 § 1 provides that in proceedings concerning the parental rights over a child, the court has to allow the parents to make their case ( kuulab kohus vanemad ära ). 38 .     Article 561 concerns the resolution of the matter by agreement ( asja lahendamine kokkuleppel ). Article 561 § 1 provides that in proceedings concerning a child, the court has to try, as early as possible and at each stage of the proceedings, to direct the participants towards settling the matter by agreement. The court has to hear argument from the participants as early as possible and to draw their attention to the possibility of seeking the assistance of a family counsellor in order to reach a common position on taking care of and assuming responsibility for the child. Article 561 § 2 states that the court may suspend the proceedings concerning a child if this does not result in a delay which might endanger the interests of the child and the participants agree to participate in extra-judicial counselling or if, in the court’s opinion, there are prospects to resolve the matter by settlement between the persons concerned owing to another reason. Family Law Act 39 .     Section 116 sets out the principles of parents’ right of custody. Section 116(2) provides that parents have the obligation and the right to care for their minor child. The parent’s right of custody includes the right to care for the person of the child ( isikuhooldusõigus – custody over person) and for the property of the child ( varahooldusõigus – custody over property) and decide on matters related to the child. 40 .     Section 123 provides that when hearing any matter concerning a child, the court makes a decision primarily in the interests of the child, taking into account all the circumstances and the legitimate interest of the relevant persons. 41.     Section 123-1(1) provides that in the event of changes in the right of custody ( hooldusõiguse muutuste korral ), a parent’s custody over the child will be restored on the basis of an application on the part of the parent if restoration of custody corresponds to the interests of the child. 42 .     Section 137 concerns the termination of joint custody. Section 137(1) lays down that if parents who have joint custody live permanently apart or no longer wish to exercise joint custody for any other reason, either of them has the right to apply to the court in non-contentious proceedings ( hagita menetlus ) for custody over the child to be partially or fully transferred to him or her. A court may resolve a dispute concerning custody also in proceedings concerning divorce. Under section 137(2) a court has to dismiss such an application if i) a child who has reached at least 14 years of age objects to the trans fer of custody, or   ii) if there is reason to believe that termination of the joint right of custody and granting the right of custody solely to the applicant does not correspond to the interests of the child. Section 137(3) provides that in the event of termination of joint custody, the court decides on the grant of custody to one parent on the basis of the interests of the child and takes into account, inter alia , the mental and financial readiness of each parent to raise the child, their emotional relationships with the child and their current commitment to caring for the child and the future living conditions of the child. 43 .     Under section 138(1), which deals with the transfer of custody, if only one parent has custody, the other parent may apply to a court for custody over the child to be partially or fully transferred to him or her. The court allows the application if transfer of custody corresponds to the interests of the child, if a child who has attained at least 14 years of age does not object to it and if the parent requesting transfer of custody is suitable and able to exercise it. If only one parent has custody on the basis of a court decision, the other parent may request transfer of custody if the circumstances on the basis of which the court decision was made have changed significantly, or he or she may request restoration of joint custody. 44 .     Section 143 concerns contact rights with the child ( suhtlemise õigus ). A child has the right to maintain personal contact with both parents. Both parents have the obligation and the right to maintain personal contact with their child (section 143(1)). A parent must refrain from any action which hinders the child’s relationship with the other parent or would make the raising of the child more difficult (section 143(2)). Under section 143(2-1), in the event that parents are separated ( vanemate lahuselu korral ), the parents have to agree on the contact arrangements of the separated parent with the child. If there is a dispute between the parents, the contact arrangements are determined by a court at the request of a parent. Section 143(3) provides that a court may restrict or terminate contact or restrict or terminate the enforcement of earlier decisions made in that connection. In accordance with section 143(3-1) the court may order that a parent has access to a child in the presence of a suitable third person. Section 143(5) provides that the court may apply the above measures on its own initiative. 45 .     Section 209 concerns special guardians ( erieestkostja ). The first sentence of section 209(1) provides that a special guardian is appointed to a person under parental care or to whom a guardian has been appointed for the act which cannot be performed by the parents or the guardian. Child Protection Act 46.     Section 21(1) of the Child Protection Act ( lastekaitseseadus ) provides that when adopting decisions affecting a child and choosing between different options for such decisions, the best interests of the child must be ascertained and must be the primary consideration. Section 21(2) provides that in order to ascertain the best interests   of the child, it is necessary   i) to establish all the relevant circumstances concerning the situation and person of the child and other information which is necessary to evaluate the effect of the decision on the child’s rights and well-being;   ii) to explain the content and reasons for the planned decision to the child, to interview the child in a manner that takes account of his or her age and development and to take his or her opinion into account as one of the circumstances following ascertaining the best interests of the child; iii) to assess all the relevant circumstances in aggregate and to form a reasoned opinion concerning the best interests of the child with regard to the planned decision.   Relevant domestic case-law 47 .     In judgment no. 3-2-1-45-11 of 7 June 2011 the Supreme Court explained that if the court granted full custody to one parent ( annab ainuhooldusõiguse täielikult ühele vanemale ), the other parent no longer enjoyed the right of custody in respect of the child (including determination of the child’s “place of stay” or deciding essential matters concerning the child’s life or the right of representation with regard to those matters). However, in line with the second sentence of section 143(1) of the Family Law Act, the parent without the right of custody had the obligation and the right to maintain personal contact with their child. 48 .     In judgment no. 3-2-1-83-11 of 9 November 2011 the Supreme Court underlined that both a child and a parent had reciprocal rights of contact regardless of whether the parent had custody of the child within the meaning of section 116(2) of the Family Law Act. The main purpose of the right of contact was to ensure the continuation and the development of personal relations between a parent and a child (primarily in a situation where the parent did not have custody of the child, but also where the parents had joint custody, but one of the parents was not living with the child). The Supreme Court also explained that regardless of whether the parents had joint custody or one of the parents had full custody, pursuant to section 143(2) of the Family Law Act the parents had to refrain from actions which hindered the child’s relationship with the other parent or made the raising of the child more difficult. (The latter was also explained in judgment no. 3-2-1-32-11 of 30 May 2011. In that judgment the Supreme Court, moreover, stressed that parents had to exercise their parental rights and fulfil the parental duties in good faith). 49 .     The Supreme Court’s judgment no. 3-2-1-6-12 of 14 March 2012 concerned a case where a father who had not had contact with his daughter for several years, had applied to the courts for the contact arrangements between him and his daughter to be fixed. The child, who had been unaware of the existence of her biological father, was approximately nine years old at the time. The Supreme Court reasoned that it was presumably in the interests of the child to know who his or her parents were and to have contact with the parent who did not have custody. Against that background, the parent with whom the child lived was obliged to allow and to encourage the child to have contact with the parent who did not have custody. The parent with custody could prevent the parent who did not have custody from having contact with the child only if such contact with the parent who did not have custody was not in the child’s interests and would have a negative effect on him or her. In the case in question the Supreme Court found that it would have been premature to order contact arrangements between the parent who did not have custody and the child in a situation where the child, who was capable of understanding, was unaware of the existence of her biological parent. By ordering contact arrangements in such a situation the court would respect the child’s right and presumed interest to know her parent and to have contact with him, as well as the right of the parent who did not have custody to have contact with his child, but would fail to take into account the child’s actual interest and readiness to have contact with a parent of whose existence the child had been unaware. It was not known how finding out the truth affected the child, whether and how fast the child adapted to the situation, what kind of contact the child developed with the parent who did not have custody, and what frequency of contact served the child’s interests the best. In that judgment the Supreme Court also explained the appointment and the role of a special guardian. The Court reasoned that in the circumstances where one of the parents refused to cooperate and did not allow the child to have contact with the other parent (thereby harming the child’s well-being), a court could restrict that parent’s right of custody in this particular matter and appoint a neutral third person – a special guardian under section 209 of the Family Law Act – to arrange the child’s contact with the other parent. The special guardian would have the task of getting to know the child and both parents and deciding in a flexible manner, while taking into account the child’s well-being and all relevant circumstances, when and how the child could have contact with the parent with whom he or she did not live. 50 .     In judgment no. 3-2-1-4-13 of 29 October 2014 the Supreme Court stated that if the parent with custody found that the contact arrangements between the child and the parent who did not have custody laid down in a court decision no longer met the interests of the child due to changed circumstances, this parent could apply to a court with a request to change the contact arrangements under section 143(3) of the Family Law Act. Only a court was competent to assess and decide whether the contact arrangements were in line with the child’s interests within the meaning of section 123(1) of the Family Law Act. 51.     In judgment no. 3-2-1-113-14 of 5 November 2015 the Supreme Court explained that in order to avoid any current or future disagreements between the parents regarding the contact rights with the child, the court had to make as specific arrangements as possible to that end by determining the time, duration, frequency, location of the meetings and the way the child was to be handed over. Matters concerning a parent’s contact with child could not be left effectively undecided by requiring the parents to agree on certain aspects by themselves. 52 .     In judgment no. 3-2-1-138-16 of 11 January 2017 the Supreme Court noted that the decision to dismiss an application to have contact arrangements between a parent and a child ordered did not deprive a parent of the right to contact with the child. However, under sections 143(3)-(5) of the Family Law Act, the State could interfere with the right of contact between a parent and a child if contact with the parent was not in the child’s interests and was damaging his or her health and development. In that case, the court could restrict or terminate contact on its own initiative. 53.     In judgment no. 2-16-5794 of 22 November 2017 the Supreme Court affirmed that if this was in the interests of the child and if the preconditions laid down in the second sentence of section 138(1) of the Family Law Act were met, it was possible to restore joint custody if it had been previously terminated. THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 54.     The applicant complained under Article 8 of the Convention that his right to respect for his family life had been violated by the domestic decisions to grant full custody over R.S. to K.T. and to restrict his contact with his son to only that of which K.T. had knowledge and had given consent. 55.     Article 8 of the Convention reads as follows:   “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Admissibility 56.     The Government, relying on the same arguments it had submitted under the merits, considered that the complaint was inadmissible as manifestly ill-founded. 57.     The applicant made no specific comments as to the admissibility of the complaint. 58.     The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 59 .     The applicant asserted that the granting of full custody over R.S. to his mother K.T. had not been proportionate. He considered that this decision had arisen directly from K.T.’s reluctance to discuss matters concerning their child with him. He admitted that he had lost contact with his son before the commencement of the domestic proceedings. However, he did not consider this to be a sufficient reason for finding that joint custody would harm the interests and well-being of R.S. The applicant expressed to the Court that he agreed to the partial transfer of the right of custody to K.T. (K.T could be granted custody over the child’s property; she could also determine his “place of stay” ( viibimiskohta määrata ) within Estonia and decide on everyday matters concerning R.S.; K.T. could also apply to courts to be granted the power to decide some other individual matters that the parents disagreed on). Against that background, the termination of joint custody had not been necessary. 60.     The applicant argued that the domestic courts’ decisions  which had made his contact with his son dependent on the child’s will and K.T.’s consent  had effectively precluded any such contact. 61.     The applicant considered that his son’s memories of him had not been his own and that the unwillingness of R.S. to talk to him had to be attributed to the negative influence of K.T., who had portrayed the applicant in a bad light.   The domestic courts had not ascertained the true reasons for the child’s reluctance to communicate with his father and had based their decisions on K.T.’s statements and on the premature conclusions of A.T., not on actual evidence. K.T. had, moreover, refused to reply to the applicant’s letters and other forms of reaching out during the proceedings. The courts had not sought opinions from any other experts who had met the child, nor had they extended the family counselling sessions. It had not been proven that the applicant’s contact with R.S. would harm the child. The one time that he had been able to meet with R.S., at the therapy session with A.T. present, had not been sufficient to restore their relationship. V.K., the child’s guardian ad litem , had been a legal specialist, not someone who would have had expert knowledge on assessing a child’s mental state or determining the child’s best interests. In the given case, V.K. had presented arguments based solely on the child’s opinions, not his actual interests. 62.     In conclusion, the applicant argued that the State had not made sufficient efforts to restore his relationship with his son and to ensure his access to him. He noted that he had not been able to have access to R.S. either during or after the domestic proceedings. (b)    The Government 63.     The Government averred that there had not been a violation of the applicant’s rights under Article 8 of the Convention. 64.     The Government drew attention to the procedural steps that had been taken throughout the domestic proceedings in order to i) restore contact between the applicant and his son, ii) help K.T and the applicant reach an agreement, and iii) guarantee that the child’s interests were heard and taken into account. 65.     Firstly, the domestic courts had throughout the proceedings cooperated with and asked for opinions from the relevant local municipalities – Pärnu City Government (as the guardianship authority of the child’s place of residence) and Tarvastu Rural Municipal Government (as the local government of the applicant’s place of residence) (see paragraphs 12-13, 15, 19, 22-24, 30, 32 and 35 above). 66.     Secondly, the court had appointed a guardian ad litem , a lawyer, to protect the interests of R.S. (see paragraphs 11, 15, 19, 25, 30, 32 and 34 above). 67.     Thirdly, during the proceedings, the Pärnu County Court had heard R.S. (see paragraph 17 above). The applicant as well as K.T. had had ample opportunity to express their opinions both in writing as well as orally during court hearings. 68.     Fourthly, since the beginning of the proceedings the authorities had tried to guide the applicant and K.T. towards reaching an agreement and had contributed to the attempted restoration of the relationship between the applicant and his son. The applicant and K.T. had participated in counselling in the early stages of the proceedings as well as later when the Pärnu County Court had stayed the proceedings, as provided under domestic law, for that purpose (see paragraphs 12, 18, 20 and 38 above). The psychologist-family therapist A.T. had concluded that the continuation of meetings between the applicant and R.S. would not be in the latter’s interests (see paragraphs 21 and 28 above). The Government disagreed with the applicant’s statement that the domestic authorities had failed to take measures that would have enabled the applicant to restore his relationship with his son. The Government underlined, however, that R.S. had not seen his father from when he had turned three years old until after he had turned eight years old. It had not been shown that the applicant had tried to seek contact with his son between January 2011 and April 2016. It was thus understandable that the child had been reluctant to meet the applicant  a person that he had not known. Unfortunately, the provided counselling had not changed the child’s attitude towards the applicant. 69.     Given the steps taken during the proceedings and the reasons provided by the domestic courts, the Government concluded that the decision to grant full custody over R.S. to his mother had been based on domestic law and had been justified and proportionate. In that connection the Government referred to the long-term separation of the parents; to the fact that it had been K.T. who had until then provided continuous daily care to the child; to the absence of a close relationship between the applicant and his son; to the previous misuse by the applicant of his custody over the child’s property; and to the lack of consensus between the parents. In such circumstances exercising joint custody would have been complicated. 70.     Also, given that ordering mandatory contact arrangements between the applicant and R.S. would not have been  at that time  in the latter’s interests, the decision not to do so had been justified. The obligation to facilitate contact between the applicant and his son had been an obligation of measures taken, not of results achieved. The Government stressed that not having custody or the fact that no contact arrangements had been fixed had not deprived the applicant of the right to have co