CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 février 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s54AB6003 { margin-top:66pt; margin-bottom:14pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s39E5096F { margin-top:0pt; margin-bottom:14pt; text-align:center } .s538D183F { margin-top:0pt; margin-bottom:24pt; text-align:center } .s88D564B { margin-top:0pt; margin-bottom:0pt; text-align:justify; border:0.75pt solid #000000; padding:1pt 4pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .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 } .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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s28F0D84C { margin-top:14pt; margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .sDA7B489D { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:3.45pt; font-family:Arial; text-transform:uppercase } .s5C5C410E { margin-top:14pt; margin-left:18.34pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.11pt; font-family:Arial; text-transform:uppercase } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s879C130D { margin-left:7.05pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-weight:bold; text-transform:none } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sDECD9755 { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.78pt; font-family:Arial; text-transform:uppercase } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA2548810 { margin-top:14pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:10pt } .s718D1C37 { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .sDD998142 { margin-top:14pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sB706BD6C { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.18pt; font-family:Arial; text-transform:uppercase } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .sC494E071 { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s599F5480 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .s4B52A9A9 { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .s695E2BCF { margin-top:0pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-19.8pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s16F6432D { width:7.9pt; font:7pt 'Times New Roman'; display:inline-block } .sA6765C01 { margin-top:14pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-11.3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFA550501 { width:6.3pt; font:7pt 'Times New Roman'; display:inline-block } .sFABD3260 { margin-top:14pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-19.8pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFF8BF293 { width:8.05pt; font:7pt 'Times New Roman'; display:inline-block } .s3CAF9CA4 { width:8.72pt; font:7pt 'Times New Roman'; display:inline-block } .sEB3FA797 { width:8.43pt; font:7pt 'Times New Roman'; display:inline-block } .sCD7D0356 { margin-top:14pt; margin-left:15pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:4.85pt; font-family:Arial; text-transform:uppercase } .s8B15FBF9 { margin-top:14pt; margin-left:8.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s5749FA4E { width:31.55pt; display:inline-block } .s5B8EC978 { width:144.43pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   SECOND SECTION CASE OF BYČENKO v. LITHUANIA (Application no. 10477/21)       JUDGMENT Art 8 • Family life • Domestic courts’ refusal to make a residence order in the applicant’s favour in respect of his son following child’s unlawful removal from Lithuania by his mother • In-depth examination of entire family situation • Decisions reasoned and based on child’s best interests • Applicant sufficiently involved in the proceedings   STRASBOURG 14 February 2023   FINAL   14/05/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Byčenko v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Egidijus Kūris,   Pauliine Koskelo,   Saadet Yüksel,   Frédéric Krenc,   Diana Sârcu,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   10477/21) 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, Mr Dmitrijus Byčenko (“the applicant”), on 8 February 2021; the decision to give notice of the application to the Lithuanian Government (“the Government”); the parties’ observations; Having deliberated in private on 24 January 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s complaint that the courts refused to make a residence order in respect of his son in his favour, despite the fact that the child’s mother had unlawfully removed the child from Lithuania. He invoked Articles 6 § 1, 8 and 14 of the Convention. THE FACTS 2.     The applicant was born in 1975 and lives in Vilnius. He was represented by Mr R. Mikulskas, a lawyer practising in Vilnius. 3.     The Government were represented by their Agent, Ms   K.   Bubnytė ‑ Širmenė. 4.     The applicant married O. in 2010. Their son, M., was born in 2011. The family lived in Vilnius. 5 .     In February 2017 the applicant and O. divorced. They signed an agreement, which was approved by a court, that M. would live with his mother and that the applicant would have the right to see him every Tuesday and Thursday and every other weekend, as well as spend part of the summer holidays and certain national holidays with him. 6.     In August and September 2017, the applicant complained to the police and the bailiff that O. did not allow him to see M. in accordance with the agreed contact schedule. His complaints were dismissed, the authorities finding, inter alia , that on several occasions when the applicant had had the right to see the child, he had been travelling for work purposes – therefore, the fact that he had not seen his son on those dates had not been O.’s fault. 7 .     In September 2017, O. lodged a claim with the courts, asking them to change the contact schedule. On 8   March 2018 the applicant and O. reached a friendly settlement, which was approved by the Vilnius District Court on 9   March 2018. They amended the previous contact schedule and agreed that M. would spend the first week and the third weekend of every month with the applicant. The applicant’s complaints to the authorities concerning his son’s disappearance 8 .     In May 2018 the applicant contacted the Department for the Protection of Children’s Rights of the Vilnius Municipality, informing them that his son had disappeared and asking them for help in finding him. In reply, the Department informed the applicant that it was not entitled by law to determine the whereabouts of missing children, but that if the applicant had grounds to believe that his son had been taken out of Lithuania, he should contact the Service for the Protection of Children’s Rights and Adoption (hereinafter “the SPCRA”). 9 .     In May 2018 the applicant also lodged a complaint with the police, asking them to determine his son’s whereabouts. The applicant stated that since the end of March 2018 he had been unable to contact O. on the phone or to find her at her home in Vilnius. 10 .     The police contacted O., who informed them that since March 2018 she and M. had been living in the Netherlands. O. stated that the applicant had been aware of her intention to move to the Netherlands and that he had her contact information but that he had not contacted her since she had moved there. O. also stated that she and the applicant had made new contact arrangements (see paragraph   7 above) specifically in order to make it easier for him to visit M. in the Netherlands and that she had no objection to him seeing the child. Accordingly, the police concluded that M.’s whereabouts had been established and that there were no grounds to believe that the criminal offence of child abduction had been committed. The police refused to open a pre-trial investigation, noting that complaints regarding contact rights or residence orders should be lodged in civil proceedings. 11 .     The applicant appealed against the above-noted decision, in which he argued that the police had not taken all the necessary measures to establish the exact location of his son and that their findings regarding his whereabouts were incorrect. However, the prosecutor dismissed his appeal. The applicant did not appeal against the prosecutor’s decision. First set of proceedings before the Lithuanian courts concerning a residence order 12 .     In August 2018 the applicant lodged a claim against O. with the Vilnius District Court. He asked the court to change M.’s place of residence and to determine it as being with him. The applicant submitted that O. had removed their son from Lithuania without informing or consulting him and that she had concealed her intention to move to the Netherlands when they had made the new contact arrangements. He argued that O. was using her parental rights against the child’s best interests by seeking to completely remove the applicant from their son’s life; he argued that, according to the case-law of the Supreme Court, that constituted grounds to make a residence order in his favour (see paragraph   74 below). 13 .     On 3 September 2018 the Vilnius District Court ordered the applicant to amend his claim. It found that since March 2018 O. and M. had been living in the Netherlands, where O. worked and M. attended primary school. On those grounds, the court concluded that M.’s habitual place of residence was in the Netherlands. Consequently, Council Regulation (EC) No   2201/2003 of 27   November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereinafter “the Brussels II bis Regulation”), was applicable in the case at hand. Under the general rules of jurisdiction laid down in Article 8 § 1 of that Regulation, the Lithuanian courts did not have jurisdiction over the request to make a residence order in respect of M. in the applicant’s favour (see paragraph 77 below). The Vilnius District Court further stated that none of the additional criteria for determining jurisdiction in specific situations provided in the Brussels II bis Regulation, including in cases of child abduction under Article   10, were applicable in the circumstances of the case. It considered that jurisdiction could be established under Article   12   §   3 of the Regulation if the applicant were able to provide evidence that O. had agreed to have the case examined by the Lithuanian courts and that such an examination would be in the best interests of the child (see paragraph 77 below). He was ordered to provide such evidence within fourteen days. 14.     The applicant lodged an appeal against the above-mentioned decision. He submitted that the Vilnius District Court had decided that his son’s habitual place of residence was in the Netherlands on the basis of one sole criterion – the child’s actual presence there – without paying regard to any other relevant circumstances, such as M.’s social relationships in that country or his knowledge of the Dutch language. The applicant further contended that, in view of the fact that M. had been born in Lithuania and had lived there his whole life, it ought to be presumed that that was his habitual place of residence and that the burden ought to be on O. to prove otherwise. Thus, he contended that the court had erred when finding that it had no jurisdiction under Article 8 of the Brussels II bis Regulation. 15 .     The applicant further submitted that, after finding that his son was currently residing in the Netherlands, the court should have verified whether his removal to the latter country could be considered wrongful within the meaning of Article 10 of the Brussels II bis Regulation. He contended that M. had been removed to the Netherlands wrongfully because O. had not informed the applicant of the move and had not obtained his consent. He submitted that, since M. had not yet lived in the Netherlands for one year, the Lithuanian courts retained jurisdiction under Article 10 of the Regulation (see paragraph 77 below). 16 .     On 27 September 2018 the Vilnius Regional Court dismissed the applicant’s appeal. It did not address his argument that M.’s removal to the Netherlands had been wrongful within the meaning of Article   10 of the Brussels II bis Regulation (see paragraph 15 above) 17 .     The applicant did not amend his claim (see paragraph 13 above); accordingly, on 18 October 2018 the Vilnius District Court refused to examine the claim, deeming that it had not been properly lodged. The applicant did not appeal against that decision. Proceedings before the Dutch courts concerning international child abduction 18 .     In September 2018 the applicant addressed the SPCRA, asking for its assistance in his efforts to have his son returned to Lithuania, in accordance with the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (hereinafter “the Hague Convention”). In November 2018 the SPCRA forwarded his request to the relevant Dutch authorities. The latter attempted to initiate mediation between the applicant and O., but after an initial conversation with them decided that mediation would not be appropriate in the circumstances. The case was referred to the Dutch courts in March 2019. 19 .     In April 2019, the Regional Court ( rechtbank ) of The Hague appointed a guardian ad litem to act in M.’s interests. The guardian spoke to M. twice in May 2019. M. stated that he liked living in the Netherlands, that he wished to live with his mother and did not want to live with the applicant or to return to Lithuania. The conversations were held in English, with interpretation into Russian, M.’s native language, although the guardian noted that sometimes M. himself switched from Russian to English. After the interviews, the guardian concluded that M. was “unable or unwilling to express his views completely freely”. 20 .     On 26 June 2019 the Regional Court of The Hague refused to order M.’s return to Lithuania. 21 .     The court found that the boy had been living in the Netherlands since 9 March 2018; it settled on that date on the basis of flight tickets submitted by O., as well as the data of the relevant residents’ register and the date of M.’s enrolment in a school in the Netherlands. The court noted that there was no dispute that, prior to the removal, M.’s habitual place of residence had been in Lithuania. Although O. had asserted that the applicant had consented to their son’s removal, she had not supported that assertion with any evidence or explained how the applicant’s consent had been obtained. Accordingly, the court concluded that the removal had been wrongful within the meaning of Article   3 of the Hague Convention (see paragraph 76 below). 22 .     The court observed that the request for the child’s return had been lodged with it on 15 March 2019 – that is to say more than one year after the wrongful removal. Therefore, under Article   12   §   2 of the Hague Convention, the court had to examine whether the child was already settled in his new environment (see paragraph 76 below); the burden of proof in this respect was on O. The court found that M. was attending an international school, he did not speak the Dutch language and did not have any family in the Netherlands other than his mother. Those circumstances led the court to believe that M. had not yet settled in that country. 23 .     The court also found that none of the conditions provided in Article   13 §   1 of the Hague Convention, under which the court could refuse to order the child’s return, had been established (see paragraph 76 below). It further noted that M. had been interviewed by his guardian ad litem and that he had been heard by the court itself; M. had stated that he liked living in the Netherlands and did not wish to return to Lithuania. However, the court considered that, in view of his young age, M. had not yet attained the degree of maturity necessary to render it appropriate to take account of his views; in this respect it relied on the conclusion reached by the guardian (see paragraph   19 above). Moreover, M. spent a lot of time with his mother, and it could not be ruled out that his opinion had been influenced by her. Accordingly, the court held that the child’s objection did not preclude the possibility of ordering his return to Lithuania (Article   13   §   2). 24.     Nonetheless, the Regional Court of The Hague observed that the Vilnius District Court, in its decision of 3 September 2018, had held that it did not have jurisdiction over the dispute regarding M.’s place of residence because his habitual place of residence was in the Netherlands (see paragraph   13 above) and the Vilnius Regional Court had upheld that decision (see paragraph 16 above). The Regional Court of the Hague stated that the purpose of the Hague Convention was to return the child to the State in which the courts had jurisdiction over disputes regarding his or her place of residence. Therefore, in view of the decisions adopted by the Lithuanian courts, in which they had clearly stated that they had no jurisdiction over the matter, the Regional Court of the Hague considered that it was precluded from ordering M.’s return to Lithuania. 25.     The applicant lodged an appeal against the above-mentioned decision. He submitted, inter alia , that the Lithuanian courts had erred when finding that M.’s habitual place of residence was in the Netherlands. 26 .     In July 2019, the guardian ad litem again spoke to M., who repeated that he wished to stay in the Netherlands with his mother. 27 .     On 14 August 2019 the Court of Appeal ( gerechtshof ) of the Hague dismissed the applicant’s appeal. It upheld the lower court’s conclusion that M.’s removal to the Netherlands had been wrongful. However, in contrast to the lower court, the appellate court found that M. was already settled in the Netherlands. It observed that the school which M. attended was not limited to children from foreign families; moreover, he took part in various extra-curricular activities in which he mingled with Dutch children, and he had Dutch friends. M. lived with his mother and her new partner; the latter was teaching him the Dutch language and M. was already able to understand it quite well. By contrast, M. did not speak Lithuanian and did not have any social ties to Lithuania, other than his parents. The court also observed that, even before O. and M. had moved to the Netherlands, the applicant had spent a lot of time abroad because of his work, and M. had formed a particularly strong attachment to his mother. Accordingly, the court concluded that M. was sufficiently settled in the Netherlands and that returning him to Lithuania would not be in his best interests. Second set of proceedings before the Lithuanian courts concerning a residence order Proceedings before the Vilnius District Court The applicant’s claim 28 .     In July 2019 the applicant lodged a new claim with the Vilnius District Court, in which he asked it to make a residence order in respect of M. in his favour and to grant O. the right to spend the first week and the third weekend of every month with M. He presented essentially the same arguments as those that he had made in the previous proceedings (see paragraph 12 above). 29.     He also contended that, in the previous set of proceedings before the Lithuanian courts, those courts had not examined whether the child’s removal to the Netherlands had been wrongful within the meaning of Article 10 of the Brussels II bis Regulation (see paragraphs 13 and 16 above). The applicant stated that, at the time of those proceedings, there had not been information indicating that his child had been abducted. However, since then, a Dutch court had acknowledged that the child’s removal to the Netherlands had been wrongful (see paragraph 21 above). Therefore, the applicant contended that the Lithuanian courts had jurisdiction over the matter, according to Article 10 of the Brussels II bis Regulation. Submissions of the SPCRA 30 .     During the examination of the case, the Vilnius District Court requested the SPCRA to provide its views on whether changing M.’s place of residence would be in his best interests. The SPCRA informed the court that it was unable to do so because the child and his mother lived in the Netherlands, and it had not been able to visit their home and talk to them. The court nonetheless instructed the SPCRA to provide its views on the basis of the available documents, and the SPCRA did so. It stated that, during the time when O. and M. had lived in Lithuania, there had been no information that O. might have been caring for the boy improperly. According to the decisions of the Dutch courts, M. had been living in the Netherlands since March 2018; he was able to understand the Dutch language, went to school and took part in extra-curricular activities; he lived with his mother and her new partner and had Dutch friends (see paragraph 27 above). Thus, it appeared that he was provided with a safe environment which was suitable for his education and development, and there was no information indicating the contrary. The SPCRA emphasised the importance of ensuring stability for a child. Accordingly, it was of the view that changing M.’s place of residence would be contrary to his best interests. 31 .     At the court hearing, the SPCRA acknowledged that the child’s removal to the Netherlands had been wrongful. However, he had been living in that country for nearly two years and had adapted to his new environment. Moreover, ever since the separation of his parents, M. had lived with his mother, and separating him from her would cause him harm. The SPCRA also stated that the applicant had not made sufficient efforts to maintain the relationship with his son – he had gone to the Netherlands only to take part in court proceedings and had not taken it upon himself to contact M. The Vilnius District Court’s decision 32.     On 12 February 2020 the Vilnius District Court dismissed the applicant’s claim. 33.     The court firstly addressed the issue of jurisdiction. It held that, in order to deter parents from abducting their children, Article 10 of the Brussels   II   bis Regulation provided that the courts of the member State in which a child had been habitually resident prior to his or her wrongful removal retained jurisdiction over related matters after that removal. Only in narrowly defined circumstances did jurisdiction shift to the courts of the member State to which the child had been removed. It held that none of the conditions laid down in Article 10 of the Brussels   II   bis Regulation, under which jurisdiction would shift to the courts of the State to which the child had been removed, had been met (see paragraph 77 below). Therefore, it concluded that it had jurisdiction to examine the applicant’s claim. 34 .     Turning to the merits of the case, the Vilnius District Court emphasised the primary importance of the best interests of the child, enshrined in domestic and international law (see paragraphs 59, 70 and 75 below). It also cited the case-law of the Supreme Court on determining and changing a child’s place of residence and the various factors that had to be taken into consideration when making such decisions, such as the physical and social environment that each parent was capable of securing for the child, the child’s attachment to each of the parents, and the child’s wishes (see paragraph 70 below). The court stated that no single factor was decisive and that all the relevant circumstances had to be assessed when deciding with which parent a child should reside. In this connection, it noted that the unlawfulness of M.’s removal to the Netherlands had been established by the Dutch courts and that their decisions had become final. However, according to the aforementioned case-law, that fact was not, in and of itself, sufficient to make a residence order in the applicant’s favour. 35 .     Referring further to the Supreme Court’s case-law (see paragraphs 69 and 71 below), the Vilnius District Court held that in order to change a child’s place of residence and make a residence order in favour of the parent with whom the child had not previously been living, it had to be demonstrated that the child’s current living environment had become unsafe or unsuitable for his or her development, and that the other parent would be able to ensure an appropriate environment. Domestic and international law protected the stability of a child’s family environment and did not provide for changing it in the absence of a pressing need and clear and sufficient grounds, even where that environment had been created in violation of certain legal requirements (see paragraph 69 below; the Vilnius District Court also referred to the Court’s judgment in Mihailova v.   Bulgaria , no.   35978/02, 12   January 2006). 36 .     The court found that, despite the fact that the applicant had not consented to M.’s removal to the Netherlands, there was no indication that the removal had been contrary to M.’s best interests, because he had been provided with an environment that was suitable for his growth and development. Moreover, the Court of Appeal of the Hague had established that M. had adapted to his new environment: he attended school, took part in extracurricular activities and had friends (see paragraph 27 above). The Vilnius District Court held that, in the present case, there were no exceptional circumstances that would justify changing M.’s habitual place of residence. Such a change could have particularly negative consequences to the boy, leading to psychological instability and creating feelings of discomfort and insecurity. Therefore, the priority had to be given to maintaining the stability of his environment. 37 .     The court also noted that, in the course of the proceedings before the Dutch courts, M. had been interviewed by his guardian ad litem and had expressed a wish to stay in the Netherlands with his mother (see paragraph   19 above). The Vilnius District Court considered that there were no grounds to believe that the wish expressed by the boy might be contrary to his best interests. The applicant had asked that his son to be heard by the Lithuanian courts, basing his request on the fact that the interviews in the Netherlands had not been carried out in M.’s native language. However, the Vilnius District Court observed that the boy had been interviewed in the presence of an English-to-Russian interpreter, and that those were the two languages which he spoke at home with his mother. Accordingly, the court dismissed the argument that M. had been interviewed in a language that he did not understand. It held that interviewing him again would be superfluous, and that, moreover, requiring M. to travel to Lithuania would interrupt his education and cause him additional stress. 38 .     Therefore, in view of the fact that the applicant’s son had already settled into his new environment, the Vilnius District Court concluded that it was in his best interests to remain with his mother. Furthermore, separating M. from O., with whom he had lived since his parents’ separation, would cause a significant change in his living situation and affect the consistency of his upbringing, which would be contrary to his best interests. The court noted that the SPCRA had reached a similar conclusion (see paragraphs 30 and 31 above) and that it had no reason to disagree with the latter. 39 .     Lastly, the court observed that, while it appeared that O. had not made sufficient efforts to ensure M.’s contact with his father, that in itself did not justify changing M.’s place of residence. Nor did the fact that M. lived in a different country from the applicant constitute grounds to remove the boy from the place in which he was settled. The court stated that the possibility to freely travel across international borders and the well-developed transport networks had made geographical distance less important. It also observed that the applicant had not taken any steps to have the contact schedule enforced in the Netherlands. The court considered that the existing contact arrangements, which entitled the applicant to spend rather long uninterrupted periods with his son (see paragraph 7 above), were appropriate in the circumstances. Proceedings before the Vilnius Regional Court The applicant’s appeal 40 .     The applicant lodged an appeal against the decision of the Vilnius District Court. He submitted that that court had not been sufficiently active when resolving a family dispute and that it had breached a number of procedural requirements. In particular, the court had not heard M., thereby infringing both his and the applicant’s rights. Moreover, although the SPCRA had informed the court that it was unable to provide its views on whether changing M.’s place of residence would be in his best interests, the court had nonetheless ordered it to provide such views and had relied on them in its decision (see paragraphs 30 and 38 above). Therefore, the applicant argued that the court’s decision had been adopted without obtaining a proper assessment of the situation from a relevant authority. He also submitted that the court had failed to ensure O.’s presence at the hearing, thereby excluding any possibility of a friendly settlement of the dispute. 41 .     He further contended that the Vilnius District Court had not adequately examined the circumstances of the case and that it had based its decision essentially on a single argument – that M. had settled in the Netherlands, as established by the Dutch courts. The applicant argued that the court had given disproportionate importance to those of the child’s interests that were short-term and liable to change, such as his friends and extra-curricular activities, over his relationship with his father. 42 .     Lastly, he complained that, after deciding that M.’s place of residence should remain with his mother, the court had not examined whether it was necessary to make new contact arrangements in order to ensure the applicant’s right to see his son – he argued that the existing contact schedule (see paragraph 7 above) could not be followed if he and his son lived in different countries. The Vilnius Regional Court’s decision 43.     On 2 June 2020 the Vilnius Regional Court dismissed the appeal lodged by the applicant and upheld the decision of the first-instance court. 44 .     It firstly held that O.’s participation in the hearing had not been required by law. She had informed the court that she did not wish to participate in person, in view of her son’s schooling, her financial situation, poor transport connections, and the hostile relationship between her and the applicant. Nonetheless, O. had submitted her arguments in writing; therefore, her absence had not precluded the first-instance court from being appraised of her position or from examining all the relevant circumstances of the case. The Vilnius Regional Court also observed that previous attempts to resolve the dispute between the applicant and O. through mediation had failed, owing to the animosity between them; thus, it had no reason to believe that O.’s attendance at the hearing could have led to them reaching a friendly settlement. 45 .     The court next stated that, under domestic law, when deciding matters concerning children, a child who was capable of forming and expressing his or her own views had to be heard by the court (see paragraphs   61, 63 and 67 below). The same principle was enshrined in international law (see paragraph   75 below) and in the case-law of the Court (the Vilnius Regional Court referred to Hokkanen v. Finland , no. 19823/92, §   61, 23 September 1994; Gineitienė v. Lithuania , no. 20739/05, § 38, 27 July 2010; and G.B.   v.   Lithuania , no. 36137/13, § 105, 19 January 2016). However, the Court’s case-law did not lay down strict requirements as to the form in which a child should be heard (see M. and M. v. Croatia , no.   10161/13, 3   September 2015). Moreover, the Court had held that it would be going too far to say that domestic courts were always required to hear a child in court regarding the issue of access to a parent who did not have custody, but that this issue depended on the specific circumstances of each case, having due regard to the age and maturity of the child concerned (see Sahin v. Germany [GC], no.   30943/96, § 73, ECHR 2003-VIII). Similarly, the Supreme Court had found that when determining a child’s place of residence, it was important to assess the entirety of the relevant circumstances; the views of the child constituted one factor to be taken into consideration, but they were not decisive (see paragraphs 63, 67 and 73 below). In the light of the foregoing, the Vilnius Regional Court concluded that domestic and international law placed the main emphasis on the fact that a child’s views should be heard, whereas the form or the place in which those views were heard was of lesser importance, as long as the totality of evidence demonstrated that they had been expressed of his or her own free will and in conditions appropriate to the child’s age and level of maturity. 46 .     The court observed that M. had been heard in the course of the proceedings before the Dutch courts. Although those proceedings had concerned the question of whether M. should be returned to Lithuania, rather than with which parent he should live, it was apparent from his answers to the questions posed by the guardian ad litem that he associated life in the Netherlands with his mother, and life in Lithuania with his father; he had stated that he liked living with his mother in the Netherlands and did not want to return to Lithuania or to live with the applicant. In any event, the Vilnius Regional Court observed that, as noted by the guardian, M. had been unable or unwilling to express his views completely freely (see paragraph   19 above), and the applicant had not disputed that conclusion. Moreover, O. had submitted that the boy was shy and sensitive and that he suffered from anxiety attacks because of the continuing court proceedings and the tense relationship between his parents. Thus, the court considered that causing the boy additional stress by making him travel to Lithuania and take part in another set of court proceedings had been unnecessary and would not have been in his best interests. 47 .     The court also observed that – as submitted by O. and not disputed by the applicant – M. did not speak Lithuanian. As a result, even if he had been interviewed during the proceedings before the Lithuanian courts, an interpreter would have been necessary. By contrast, in the Netherlands he had been interviewed in Russian and English, both of which he spoke at home, and the transcript of the interviews showed that he had understood the questions posed to him and had answered them in accordance with his age and level of maturity. 48 .     With regard to the role of the SPCRA in the proceedings, the Vilnius Regional Court observed that the particular circumstances of the present case had precluded that authority from directly examining M.’s place of residence with his mother. In any event, the SPCRA’s views had not had a decisive impact on the decision of the first-instance court (see paragraph 38 above). The Vilnius Regional Court also noted that the applicant had had the right to ask the SPCRA to clarify its submissions or to provide additional information, but he had not availed himself of that possibility during the proceedings. 49 .     The court stated that it was not disputed that O. had unlawfully removed M. to the Netherlands – that fact had been established by the Dutch courts (see paragraphs 21 and 27 above). That was relevant when determining whether there were grounds to change M.’s place of residence, but it was not decisive – instead, the court was required to assess the entirety of circumstances and to strike a balance between the different interests involved. The Vilnius Regional Court referred to the case-law of the Supreme Court, which had clarified under what circumstances a residence order should be made in favour of the parent with whom a child had not lived previously and emphasised the importance of the stability of a child’s family environment to his or her psychological state (see paragraphs   69 and 71 below). 50 .     The Vilnius Regional Court stated that it had no reason to doubt the circumstances established by the Court of Appeal of the Hague regarding M.’s adaptation to and integration into life in the Netherlands (see paragraph   27 above) and that the applicant had not demonstrated that M.’s living environment had changed and had become unsuitable for him. It rejected the applicant’s argument that his son’s short-term interests had been accorded greater importance than his relationship with the applicant (see paragraph 41 above). It stated that the importance of the applicant’s and his son’s relationship had not been denied; however, when deciding on a child’s place of residence, a wide variety of factors had to be taken into account, including the child’s social links – in the present case, M.’s friends, his good relationship with his mother’s new partner, and his strong bond with his mother, who had been taking care of him since his birth. It was the entirety of those circumstances that had led to the conclusion that it was in M.’s best interests that he continue living with his mother and that his place of residence remain unchanged. The court further observed that M. had expressed a wish to live in the Netherlands with his mother, and there were no grounds to believe that that wish was contrary to his best interests. 51 .     As to the applicant’s argument that O. had prevented him from seeing their son, the court considered that that had not been proved. Although the applicant had submitted to the court copies of emails that he had sent to O. in which he had accused her of not allowing him to see M., he had not provided any proof that those allegations were true. The court observed that there was no indication that, since the time when O. and M. had moved to the Netherlands, the applicant had made any real effort to see the boy. His trips to the Netherlands had coincided with the hearings before the Dutch courts, and there was no evidence that, outside those periods, he had sought to talk to M. by phone, text messages, video chat or any other means, or that O. had interfered with his efforts. 52 .     The Vilnius Regional Court acknowledged that the existing contact arrangements (see paragraph 7 above) were difficult to implement in practice, in view of the fact that the applicant and his son lived in different countries. However, for the entire duration of the proceedings the applicant had not made any proposals as to how they might be changed. On the contrary, when asking that a residence order be made in his favour, he had asked that O. be allowed to see M. according to a contact schedule that was identical to the one then in place (see paragraph 28 above). In the absence of a clearly formulated request by the applicant, the Vilnius Regional Court considered that there were no grounds for the courts to make new contact arrangements of their own motion. Proceedings before the Supreme Court 53.     The applicant lodged an appeal on points of law, in which he raised essentially the same arguments as those that he had submitted previously (see paragraphs 28 and 40-42 above). 54 .     On 3 December 2020 the Supreme Court dismissed the appeal on points of law and upheld the decision of the Vilnius Regional Court in its entirety. It affirmed the latter court’s findings regarding the importance of ensuring the stability of a child’s family environment (see paragraphs 49 and 50 above) and emphasised that in order for M.’s place of residence to be changed, the applicant had to prove that his son’s current place of residence had become unsafe or unsuitable. However, the applicant had based his claim primarily on the fact that M.’s removal to the Netherlands had been unlawful, without providing any arguments or evidence that the conditions for changing M.’s place of residence had been met. 55.     The Supreme Court further held that the parent who lived separately from his or her child should not seek such contact arrangements as would be most convenient to him or herself. The purpose of a contact schedule was to ensure that the child maintained a relationship with both parents, and any contact arrangements had to be conducive to the best interests of the child. The Supreme Court upheld the conclusions of the Vilnius Regional Court to the effect that the applicant had not made sufficient efforts to contact his son and that he had not proved that O. had prevented him from seeing the boy (see paragraph 51 above). It emphasised that conflict between the parents did not, in itself, amount to a reason to change the existing contact arrangements and that the parents were under an obligation to reach a compromise in the interests of their child. 56 .     Moreover, the Supreme Court agreed with the lower courts that it had not been necessary to interview M. during the proceedings at hand. The domestic and international case-law to which the Vilnius Regional Court had referred (see paragraph 45 above) indicated that it was within the discretion of the court examining a case to choose the most appropriate way of ascertaining the child’s views in that case. The Supreme Court considered that M. was of the age where he was capable of forming his own views and that he had clearly expressed a wish to live with his mother. Thus, his views had to be given due importance when deciding on his place of residence. It stated that it was immaterial that M. had been interviewed in a case concerning child abduction rather than the determination of M.’s place of residence, because in substance that interview had also disclosed his views on matters that were being decided in the case at hand. 57 .     Accordingly, the Supreme Court concluded that the lower courts had properly determined what was in the best interests of the applicant’s son. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW Constitution 58.     The relevant provisions of the Constitution read as follows: Article 38 “The family shall be the basis of society and the State. Family, motherhood, fatherhood, and childhood shall be under the protection and care of the State. ... In the family, the rights of spouses shall be equal. The right and duty of parents shall be to bring up their children to be honest people and faithful citizens, and to support them until they reach the age of majority ...” Article 39 “... Under-age children shall be protected by law.” Civil Code 59 .     Article 3.3 § 1 of the Civil Code states that the legal regulation of family relations in Lithuania is based on, inter alia , the principle of the primary protection and defence of the rights and interests of the child. 60.     Article 3.159 § 3 states that parental rights cannot be used in ways that would be against the best interests of the child. 61 .     Article 3.164 § 1 provides, inter alia , that when deciding on any matters relating to a child, a child who is capable of forming his or her own views must be heard directly; where that is not possible, he or she must be heard through a representative. The child’s views must be taken into account when making any such decision, unless that would be contrary to the child’s best interests. In a similar vein, Article 3.177 states that a court examining a dispute concerning a child must hear that child if he or she is capable of expressing his or her views, and elucidate the child’s wishes. 62.     Article 3.170 § 4 states that the parent with whom the child lives must not prevent the other parent from maintaining a relationship with the child and participating in the child’s upbringing. Acting to the contrary constitutes abuse of parental rights, for which the parent in question must be held accountable in accordance with the law. 63 .     Article 3.174 reads as follows: “1. A request concerning the determination of a child’s place of residence may be lodged with a court by the child’s father or mother, or the legal guardian