CEDH · CASELAW;COMMUNICATEDCASES;ENG — 8 avril 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 29 April 2024   FIFTH SECTION Application no. 1422/24 Marcel TŮMA against the Czech Republic lodged on 21 December 2023 communicated on 8 April 2024 SUBJECT MATTER OF THE CASE The application concerns an appellate court’s decision awarding custody of the applicant’s daughter to the latter’s grand-mother, to the applicant’s detriment. After their divorce in 2020, the parents shared parental responsibility and agreed that the custody of the child (born 2009) would be awarded to the mother who would enable the applicant to see the child regularly. Following the mother’s death in 2021, the child’s grand-mother on the mother’s side moved in with her and requested an interim measure awarding her the child’s custody. That request was dismissed on the ground that there was no need for such an interim arrangement because the applicant had full parental responsibility, cared for the child and intended to take custody of her. On the other hand, the court granted, in February 2022, the applicant’s request for an interim measure ordering the grand-mother to hand the child over to him, which remained unenforced. The grand-mother’s subsequent claim for custody was dismissed by the first-instance court in March 2022. While acknowledging the child’s wish to stay with her grand-mother, the court underlined her interest in maintaining and reinforcing her bond with the applicant who was her only legal representative and intended to take custody of her. Upon the grand-mother’s appeal, the appellate court overturned that judgment in September 2022 and awarded custody to the grand-mother, considering that it was in the child’s best interest – and in accordance with her clear wish which had to be taken into account – to remain in a safe and familiar environment of her grand-mother’s. The applicant’s constitutional appeal was dismissed as manifestly ill-founded (decision no. IV. ÚS 2884/22 of 29 August 2023). Relying on Article 8 of the Convention, the applicant submitted that the decision awarding custody of his daughter to the grand-mother amounted to an interference with his right to respect for family life, which was contrary to domestic law (providing that the child’s custody can be awarded to another person only if none of the parents is able to take care of the child) and disproportionate; he also argued that the best interest of his daughter could not simply be equated to her wish. QUESTIONS TO THE PARTIES 1. Has there been an interference with the applicant’s right to respect for his family life, within the meaning of Article 8 § 1 of the Convention?   2. If so, was that interference in accordance with the law, necessary and proportionate in terms of Article 8 § 2? Were the reasons put forward by the appellate court relevant and respectful of the child’s best interest and did the decision-making process provide the applicant with the requisite protection of his interests (see, mutatis mutandis , Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, ECHR 2010; Z.J. v. Lithuania , no. 60092/12, 29 April 2014; and Khusnutdinov and X v. Russia , no. 76598/12, 18 December 2018)?