CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 décembre 2012

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J. against Lithuania lodged on 11 September 2012 STATEMENT OF FACTS The applicant, Mr Z. J., is a Lithuanian national, who was born in 1960 and lives in Šiauliai. A.     The circumstances of the case 1.     The facts of the case, as submitted by the applicant, may be summarised as follows. 2.     The applicant was married to V.J., with whom he had two children – T.J., who was born in 1985, and Do.J., who was born in 1986. 3.     In 1993 the applicant divorced his wife, but they kept living together and had three more children – Ž.J., born in 1997, and twins – a boy D.J. and a girl K.J., born on 18   May 2003. 4.     On 5   December 2003 the applicant’s former wife and the mother of their five children died. 5.     On 27   January 2004 the child care authorities of Šiauliai municipality decided that I.N., a distant cousin of the applicant’s late wife, could be temporary guardian of the twins. 6.     A few days later, on 3   February 2004, the director of Šiauliai municipality administration decided that I.N. should be appointed as the temporary guardian of the twins who, in turn, were to reside with I.N. 7.     On 15 April 2004, the child care authorities of Šiauliai municipality asked the court to appoint I.N. as the twins’ permanent guardian and manager of their property. 8.     The applicant took part in the court hearing and explained that even though he loved all of his children and had been raising the three older ones to the best of his abilities, he was not able to take care of the twins because of a lack of skills and financial means. Should he quit his job in order to bring up the twins, the social benefits would not be sufficient to live on. Whilst noting that he was not giving the twins up, the applicant agreed that I.N. could be appointed as their guardian. The court decision does not specify whether the applicant agreed to a temporary or permanent guardianship. 9.     On 29   April 2004 the Šiauliai City District Court granted the child care authorities’ request and appointed I.N. as the twins’ permanent guardian, manager of their property and the person with whom the twins would reside. The court noted that the applicant could not take care of the twins because of the lack of skills to take care of babies. Yet it observed that the applicant worked and took care of his three older children, did not abuse his paternal rights, and had no negative influence on those children. The applicant was also ready to support [the twins] financially, visit them and communicate with them when they became older. The court thus did not limit the applicant’s paternal rights. 10.     The decision could be appealed against to a higher court. The applicant admits that he did not appeal against the decision. 11.     On 9   December 2008 the applicant addressed the Šiauliai City District Court, asking that the twins be returned to him. He argued that the reasons why the children had been given into I.N.’s guardianship were no longer valid. The applicant lived in a three room apartment and, above all, the twins were already older and therefore he could raise them. He loved his children dearly and wanted them to grow up with their father. He could raise them into “decent citizens”, like two of his older children, Do.J. and T.J., who at that time were students and for whose upbringing he paid. For the applicant, it would be in the children’ interests that all his children could grow up together. 12.     On 15   December 2008 I.N. lodged an application with the same court, asking that the applicant’s paternal rights be limited. In her subsequent correspondence with that court she claimed that at that time she had not known that the applicant had asked the court that the twins be returned to him. I.N. also lodged a criminal complaint, arguing that the applicant had misappropriated some money that belonged to the twins. 13.     A year later, on 7   December 2009, the child care authorities informed the court that they had visited the applicant’s apartment in Šiauliai and that the conditions there were suitable [for children]. Then again, the authorities had no complaints to the effect that I.N. had failed to perform her duties as the twins’ guardian. The authorities also noted that the twins, when questioned by specialists in December 2009, had expressed a negative attitude about their father and about being with him in his or I.N.’s apartments. The child care specialists admitted, however, that the expressions the twins had used did not always correspond to the language used by children of their age. The conversation with the children also clearly showed that there was a conflict between the applicant and I.N. 14.     By a ruling of 16   March 2009, the Šiauliai City District Court suspended the examination of the case initiated by the applicant until the civil case initiated by I.N. was resolved. 15.     The applicant appealed against that ruling, arguing that delay in the proceedings was detrimental to his interests and, even more so, to those of his minor children. He emphasised that in 2004 he had been separated from his children not because of his fault, but because of circumstances that were beyond his control – the death of his former wife and the particularly young age of the twins. The applicant also noted that it was he who had addressed the Šiauliai City District Court first; only afterwards had I.N. initiated another set of court proceedings against him. Taking into account that a case for restriction of paternal rights could reach appellate and cassation levels of jurisdiction, those proceedings could last a very long time, in breach of the requirements of Article 6 § 1 of the Convention. The delay in court proceedings pushed the twins away from their biological father and thus was detrimental to their interests. 16.     By a decision of 21   April 2009 the Šiauliai Regional Court granted the applicant’s request, on the ground that delay in the proceedings would be in breach of the twins’ interests. The court also established that it had been the applicant who had first opened court proceedings for his children’s return. 17.     On 4   March 2010 the Ombudsman for Children Rights (“the Ombudsman”) issued a report about the applicant’s case. The Ombudsman noted that on 7 January 2004 the child care authorities of Šiauliai municipality had established a plan of temporary guardianship, where it was noted that the applicant was to keep communicating with the twins and had the intention of raising them himself in the future. Accordingly, the child care authorities’ actions should have been aimed at returning the children to the natural [biological] family. The plan of temporary guardianship was to be reviewed in January 2005, that is to say, in one year. Nonetheless, “already on 15   March 2004 the child care authorities had addressed a court with a request for permanent guardianship, without having reviewed the applicant’s situation”. 18.     The Ombudsman also noted that the child care authorities were under an obligation to eliminate the circumstances why temporary guardianship was necessary and to act with a view to the children’s return to their family. Accordingly, the Šiauliai child care authorities had an obligation to establish which particular help the applicant’s family would have benefited from, including all the social help and services available. However, that had not been done, and the authorities had not taken specific steps so that the twins could be returned to their natural [biological] family. 19.     The Šiauliai Regional Hospital informed the Ombudsman that already in the first years of their lives the twins had had developmental problems as regards their linguistic abilities and motor skills. The Šiauliai Special Care Centre ( Šiaulių specialiojo ugdymo centras ) wrote that as of 7   November 2006 the twins had been staying at the centre, on the basis of weekly boarding from Monday to Friday, at the request of I.N., who complained that she was often sick and that she had to take care of her old mother. It appears that on the basis of weekly boarding the twins had stayed at the centre for three years. 20.     In 2008 D.J. was diagnosed with a medium level of disability; in 2010 the diagnosis was changed to a light level of disability. K.J had a light level of disability, established in 2008. 21.     On the basis of police reports the Ombudsman also established that on several occasions in 2009 I.N. had not allowed the applicant to see the twins, on the grounds that the children were about to go to sleep and that they were sick and she was off to buy medicine. The police also noted that in 2009 I.N. had been given an administrative punishment because in 2008/2009 her own son had missed 34 classes at school without any good reason. The school director testified that I.N.’s son had learning problems; he was rude to teachers, scared his classmates and had been given an official warning for obstructing the learning process. Despite all the efforts by the school director, teachers and social pedagogy, his behaviour had not improved. The school personnel considered that, as concerned his behaviour at school, I.N. had not raised him properly. When transferred to another school in February 2009, the behaviour of I.N.’s son slightly improved, although he missed 170 classes (65 without a valid reason). I.N. would often call to school to inquire about her son. 22.     The Ombudsman concluded that by making obstacles to the twins seeing their father, I.N. had acted unacceptably. She should have understood that the twins could be returned to their [biological] family, which was the goal of the guardianship. Whilst noting the conflict between the applicant and I.N., the Ombudsman urged the two to act prudently so that their conflict would not affect the children. The Šiauliai child care authorities were ordered to act towards improvement of the relationship between the applicant and the twins, provided that was in the children’s interests. 23.     On the request of the Šiauliai City District Court, psychiatrists examined the twins. In the report of 10   September 2010, the psychiatrists concluded that D.J. had a strong emotional relationship with I.N. However, the boy had an “emotionally favourable” relationship with his father, who was an important person for him and “with whom the boy wanted to live”, but their contact was insufficient. Such a lack of contact could be one of the reasons why the boy wanted to live with his father. The boy could not think critically. The psychiatrists noted that “it was not possible to state or to foresee how the change of living place would affect D.J.’s further development. However, taking into account the wish, which D.J. had expressed, to live with his father, it was very unlikely that the change would affect the child negatively, or even would cause him harm. [Nonetheless], taking into consideration that from his infancy to that day I.N. had been raising him, it was not recommended to disrupt the relationship between the boy and I.N. completely”. 24.     As concerns the girl K.J., the psychiatrists concluded that she had an emotionally strong relationship with I.N., with whom she wished to live. The specialists nevertheless noted that such a wish of the girl was affected by the fact that K.J. lived with I.N. As to K.J.’s relationship with her father, the relationship was ambivalent, but it had not been disrupted. Because of her young age the girl could not fully grasp the possibility of living with her father and the ensuing consequences. K.J. was naive and would be affected by the opinions of others. Both the applicant and I.N. were important persons in K.J.’s life. All in all, it was not possible to state or to foresee how the change of living place would affect K.J. It was thus for the court to decide how often the child should communicate with her father so that their emotional relationship could resume. The experts also recommended that the applicant and I.N. should share the duties of taking care of the children and I.N. should actively cooperate by helping the twins to communicate with their father. 25.     On 12   September 2011 the Šiauliai City District Court dismissed the applicant’s request that the twins be returned to him. The court agreed with the applicant’s argument that the grounds why the twins had been separated from him in 2004 were no longer valid, because the twins now were eight   years old and they had been taken from the applicant because he did not possess the skills to take care of them as babies. That being so, the court nevertheless held that the twins had a strong emotional link with I.N. and their emotional link with the applicant was not sufficient, which clearly had been influenced by the fact that the twins had lived separately from the applicant since June 2004. The court also observed that because of the conflicts between the applicant and I.N. which had started in summer 2008, he had had limited opportunities to take part in educating his children and to communicate with them. Even so, the court considered that the applicant had not taken all possible steps to participate in the upbringing of the twins on an equal level with I.N. Namely, the applicant had submitted a request for temporary protective measures (so that the rules be set as to how he could be in contact with his children) only on 23   May 2011. He had asked the court to return him the children only in 2008, even though his two other sons were no longer minor in December 2003 and December 2004. The court dismissed the applicant’s argument that I.N. did not take care of the twins properly because for three years they had attended a weekly boarding group at the Šiauliai Special Care Centre. The court noted that the applicant had to be more active in making inquiries about the twins’ development and health. Even though the twins’ doctor had acknowledged that the applicant had visited her more than once, she submitted that he was more interested in his own health than that of his children. 26.     The first instance court concluded that because of the twins’ negative attitude towards the applicant, he could not perform his fatherly duties properly. It followed that the grounds to separate the twins from the applicant persisted. To return to live with their father was not in the interest of the children. Nonetheless, the applicant maintained his rights as the father, including the right to be in contact with his children, who could very well communicate with him whilst staying in a familiar environment, with I.N., where the twins felt safe. Should the circumstances change, that is to say, once the emotional relationship between the twins and the applicant would become stronger, the applicant could address the courts again and ask that I.N.’s guardianship be annulled. 27.     The applicant appealed, submitting that the first instance court had erred in establishing that the circumstances on the basis of which the twins had been taken away from him in 2004 were no longer valid but continuing the examination to establish whether there were other grounds why he could not take care of his children properly. Even though he had visited his children and communicated with them regularly from the moment of their separation, as of 2008 I.N. had started turning the children against him, by telling them that the applicant had murdered their real mother. This fact had been confirmed by the twins’ testimony in the court hearings of 28   June 2011 and 30   August 2011. The court had established that there was a lack of a strong emotional relationship between the applicant and the twins, but had not taken into consideration that I.N. had deliberately acted so that the children would be hostile to their father. 28.     The applicant also argued that the lower court had erred in establishing that I.N. took care of the twins properly. He submitted that I.N. without a good reason kept the twins in the boarding group at the Šiauliai Special Care Centre. Even though at the first instance court’s hearing the twins’ family doctor and another doctor had confirmed that it had been recommended for the twins to attend the centre, those specialists had observed that under no circumstances were the twins to reside at the centre on a boarding basis. Furthermore, the documents from the centre confirmed that [during those three years] I.N. had not even taken the twins to give them a bath at home on Wednesdays, even though that was the rule. Similarly, the lower court had disregarded evidence about I.N.’s own son who had serious learning and behavioural problems. The applicant also submitted that until mid-2011 I.N. had had no job and thus it was not unreasonable to conclude that she lived on child benefits. Even according to the domestic law those benefits should be used exclusively in the interests of children under guardianship. 29.     The applicant also observed that the first instance court had completely disregarded the Ombudsman’s report where it had been said that “in the beginning the children had no negative feelings towards the applicant. The father would visit them in the kindergarten [the Šiauliai Special Care Centre]; bring them clothes, books, sweets, fruits. Later on the guardian (I.N.) objected to the applicant visiting the children. For a couple of months the children did not attend the kindergarten. I.N. had explained that the twins did not attend the centre on the doctors’ recommendations. As the director of the Šiauliai Special Care Centre informed, once the children returned there [in 2009], they no longer attended the boarding group. The children had a negative attitude towards their father; they no longer waited for him to come”. Likewise, the lower court had disregarded the psychiatrists’ reports about the twins, which had clearly stated that the boy wanted to live with the applicant and that there was no reason to believe that the boy’s well-being would suffer should he be returned to his biological father. 30.     Neither could the applicant agree with the lower court’s conclusion that he did not take part in taking care of the twins as much as I.N. On this point he noted that his participation in the twins’ life was limited only as of 2008, when I.N. took steps to restrict their communication. It was also noteworthy that already in 2008 the applicant had addressed the court so that the latter would establish the order how he could be in contact with the twins. 31.     Lastly, the applicant emphasised that the child care authorities of Šiauliai municipality from the very beginning and up to that day, and even by unjustified means, had sought to please I.N.’s interests and not those of the children. That fact had been plainly acknowledged in the Ombudsman’s report of 4   March 2010. 32.     By a ruling of 2 February 2012 the Šiauliai Regional Court upheld the lower court’s decision, noting that the appellate court was free as to how to interpret the evidence. The court considered that both the applicant and I.N. had not acted sufficiently methodically ( nepakankamai rūpinosi ) so that “the twins would return to the family”. The conflict between the two negatively influenced the twins’ feelings towards their father. This fact had been recognised by the Ombudsman. As it had been established by the psychiatrists, currently the twins’ bond with the applicant was not sufficient. Time was necessary so that the children could be returned to their father; the latter and I.N. had to make an effort towards that. It was indispensable for the twins to spend more time with their father, because at the time of the court proceedings they would see him only on Wednesdays and Saturdays [apparently, as established by a court order for temporary measures] which was not sufficient. The children were to get used to the fact that they could see their father when they wanted, and not when I.N. would send them to the applicant. On this point the court noted that children of the twins’ age already understood and were affected by the fact that their guardian I.N. was not thrilled about them being in contact with the applicant. Conversely, the applicant had to be less categorical and create for the children a warmer environment to come [to live] in. Furthermore, the applicant worked all day and thus had no possibility to give sufficient attention to the twins, who were hyperactive, had health problems and thus needed more attention. 33.     Lastly, the appellate court dismissed the applicant’s argument that the children should be returned to him on the basis of Article 3.181 of the Civil Code (see Relevant domestic law part below), which, in the applicant’s view, provided that the child should be returned to the parent once the grounds which necessitated the separation were no longer valid. For the court, the interests of the children were a priority. It was thus possible to look at that legal norm “informally”. In the applicant’s case the appellate court had not established the existence of [any] new circumstances. Nevertheless, this did not automatically mean that the twins had to be returned to “the family” immediately. A transitional period was necessary, which, in the court’s view, could be six months, especially taking into account that that would include summer holidays when the twins could leave their familiar environment [I.N.’s apartment] and thus re-establish their close relationship with the applicant. If the twins could communicate with the father not sporadically, twice a week, but for a longer period, they could see that their father was with them and that they should solve everyday problems with the father. 34.     The applicant lodged an appeal on points of law, but on 13   April 2012 the Supreme Court refused to examine it as raising the questions of fact. B.     Relevant domestic law The Civil Code provides: Article 3.179.     Separation of parents and children “1.     Where the parents (the father or the mother) do not live together with the child for objective reasons (illness, etc.) and the court has to decide where the child is to live, the court may decide to separate the child from the parents (the father or the mother)... 3.     When a child is separated from the parents (the father or the mother), the parents lose their right to live together with the child or demand the return of the child from other persons. The parents may exercise their other rights in so far as that is possible without living together with the child.” Article 3.181.     Cancellation of the restriction of parental authority or the replacement of the kind of limitation with another kind of limitation “1.     The separation of a child from the parents (the father or the mother) may be revoked after the disappearance of the circumstances that caused the order for separation. 2.     A temporary or unlimited restriction of parental authority may be revoked on the proof that the parents (the father or the mother) have changed their conduct and can bring up their child and if the cancellation of the restriction is not contrary to the interests of the child...” Article 3.182.     Persons entitled to seek restriction of parental authority or the cancellation of the limitation of parental authority “1.     An application for the separation of a child from the parents (the father or the mother) may be filed by the child’s parents or close relatives or the state institution for the protection of the child’s rights or a public prosecutor. (...) 4.     An application for the cancellation of the order on the separation of the child from the parents (the father or the mother) may be filed by the parents or one of the parents, or the guardian/curator or close relatives of the child or the state institution for the protection of the child’s rights or a public prosecutor.” Article 3.183.     Examination of application for the restriction of parental authority “(...) 2.     In examining actions for the restriction of parental authority or applications for the separation of a child from the parents referred to it for adjudication in contentious proceedings, the court shall not be bound by the subject matter of the action and shall pass a judgement by taking account of the situation in hand and the interests of the child. 3.     The court shall hear the child capable of expressing his or her views and take such views into account...” COMPLAINTS The applicant complains under Articles 6, 8, 14, 17 of the Convention that the State institutions deprived him of the right to live with his children D.J. and K.J. The applicant argues that the emotional connection with his children is weakened by the actions of guardian I.N., the child care authorities and the courts, which further compounds his situation. QUESTIONS TO THE PARTIES Has there been a violation of Article 8 of the Convention on account of the fact that the applicant’s children D.J. and K.J. have not been returned to the applicant as their biological father (see Görgülü v. Germany , no.   74969/01, § 46, 26 February 2004, and, most recently, Güler v. Turkey (dec.) , no.   13158/05, 31   January 2012; also see Dolhamre v. Sweden , no.   67/04, § 111 in limine , 8 June 2010; Ignaccolo-Zenide v. Romania , no.   31679/96, § 102, ECHR 2000-I; Kopf and Liberda v. Austria , no.   1598/06, § 39, 17 January 2012)? Have the courts reached a fair balance of the interests involved? REQUEST FOR DOCUMENTS AND INFORMATION 1.     The parties are requested to provide the 7 January 2004 plan by the child care authorities of Šiauliai municipality as to the twins’ guardianship.   2.     The parties are requested to provide documents as to how long the twins resided at the Šiauliai Special Care Centre on the basis of weekly boarding.   3.     The parties are requested to provide information about the latest developments in the applicant’s case, in particular, as concerns the applicant’s and the twins’ contacts during the six month period following the Šiauliai Regional Court decision of 2   February 2012.   4.     The applicant is requested to provide the Court with the minutes of the Šiauliai City District Court hearings of 28   June 2011 and 30   August 2011.