National courts in child custody cases must take into account evidence presented by a party and carry out a thorough examination of the family situation. Violation of family life.

JUDGMENT 

Širvinskas v. Lithuania 23.07.2019 (no. 21243/17)

see here 

SUMMARY

Interest of the child and arrangement of his residence in the event of divorce of his/her parents.

The applicant had a daughter with his former wife. Because of personal reasons their marriage ended. The mother did not comply with the original settlement agreement of joined custody of their daughter and the applicant applied to the court for custody. The domestic courts did not take into account the information provided by him, and granted the mother the right to reside with their daughter.

The Court held that there had been a violation of Article 8 (right to family life) because the applicant, in order to secure a decision granting him the right to reside with his daughter, had submitted to the courts a number of unexplained evidence, However, the Court reiterates that in such cases Article 8 of the Convention requires national courts to conduct a thorough examination of the entire family situation and a number of relevant factors.

It also held that there was no violation of Article 14 (non-discrimination) because the assignment of residence with the mother was based on the child’s habitual residence and not on her sex. As regards Article 14, the application was declared inadmissible.

PROVISIONS

Article 8

Article 14

PRINCIPAL FACTS

The applicant, Dalius Širvinskas, is a Lithuanian national who was born in 1981 and lives in
Karmėlava, in the Kaunas Region (Lithuania).

The case concerned court proceedings which had determined a child’s temporary and then
permanent place of residence in a divorce case.

In June 2010 Mr Širvinskas married I. In September 2010 their daughter P. was born. Until November
2013 they lived in Mr Širvinskas’s parents’ house in Karmėlava. On 9 November 2013 Mr Širvinskas
called the police and told them that he and his wife were having a dispute and that she had decided
to leave their home and take their daughter with her. According to Mr Širvinskas, the police ordered
him to allow his wife to take their daughter with her, but the parents agreed that she would live with
each of them in turn until they reached a permanent decision.

In December 2013 I. filed a petition for divorce before the District Court, asking that P. should
temporarily reside with her until a final decision and a residence order had been adopted. A day
later Mr Širvinskas asked the court for a residence order in his favour and for P. to temporarily reside
with him until then. He submitted that from her birth until her departure with I., P. had lived in his
parents’ house and was used to it. He also submitted arguments as to why that house was better
suited to the child’s needs. However, the courts stated that those arguments would be addressed at
a later stage, when making a residence order. In January 2014 the courts ruled that P.’s habitual
place of residence should not be changed without good reasons and thus she should temporarily
reside with her mother. An appeal by Mr Širvinskas was dismissed in April 2014.

The District Court’s decision in the divorce proceedings, including a residence order, was delivered in
November 2015. That court, and later an appellate court, found that the girl had already been living
with her mother for two years and was used to the apartment she had been living in, and that
changing her place of residence again would be harmful. They therefore made a residence order in
favour of I. An appeal on points of law was rejected by the Supreme Court in December 2016.

Relying in particular on Article 8 (right to respect for private and family life) of the European
Convention on Human Rights, Mr Širvinskas complained about the courts’ decisions concerning P.’s
residence in favour of his former wife.

THE DECISION OF THE COURT

General principles

The Court reiterates that the mutual enjoyment by parent and child of each others company constitutes a fundamental element of family life, even if the relationship between the parents has broken down, and domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8 of the Convention. Such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of this provision and can be regarded as “necessary in a democratic society”.

Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under Article 8 to have such measures taken as would harm the childs health and development.

 Turning to the circumstances of the present case, the Court firstly observes that the relationship between the applicant and his daughter, P., undoubtedly constitutes family life within the meaning of Article 8 of the Convention. It accepts that the decisions that determined the childs temporary and later permanent place of residence with her mother amounted to an interference with the applicants right to respect for his family life. The Court furthermore notes that it has not been disputed by the parties that the interference had a basis in national law and pursued the legitimate aim of safeguarding the best interests of the applicants daughter. It therefore remains to be examined whether that interference was “necessary in a democratic society”.

At the outset, it takes note of the fact that, under the Lithuanian law, a court decision making a residence order does not acquire a res judicata effect; thus, even after the conclusion of the impugned court proceedings, the applicant retained the right to ask the domestic courts to make a new residence order in his favour. However, the case-law of the domestic courts makes it clear that a childs habitual place of residence can be changed only when there is “a pressing need and clear and sufficient grounds”, in particular, where it has been established “that the current living environment has become unsafe and no longer meets the requirements of the childs normal and healthy development”. Therefore, in view of the difficulty of changing the childs place of residence once it has been determined, the lack of a res judicata effect cannot reduce the importance of what was at stake for the applicant in the proceedings in issue.

 In the decisions concerning interim measures, both the Kaišiadorys District Court and the Kaunas Regional Court emphasised the fact that changing a childs habitual place of residence might cause the child social and psychological harm and that the habitual place of residence should thus only be changed if it were found to be harmful to the child . The Kaunas Regional Court also stated that, at that stage of the divorce proceedings, the courts were not determining P.s permanent place of residence and not making an assessment of which parent she was more attached to or which parents home was more suited for her needs, as that would be done later, when adopting a residence order. Having found that P. was living with I. and that the conditions in I.s apartment had been assessed by the relevant authorities as suitable, the courts considered that there were no reasons to change P.s place of residence.

 However, the Court notes that the applicant in his submissions before the Kaišiadorys District Court and the Kaunas Regional Court challenged the assumption that I.s apartment was P.s habitual place of residence. He submitted that her habitual place of residence was his parents house, where she had lived from the time of her birth until her departure with I., and that I. had abused her parental rights by changing that place of residence unilaterally; I. did not dispute that the applicants parents house had been P.s habitual place of residence before 9 November 2013 . The applicant also stated that on 9 November 2013 he had allowed I. to take P. with her because he had been misled by the police and because he and I. had agreed that P. would live with each of them in turn, whereas I. denied the existence of such an agreement . The Court observes that neither the Kaišiadorys District Court nor the Kaunas Regional Court adequately addressed those arguments in their decisions. The courts did not provide any explanation as to why they considered that P.s habitual place of residence was I.s apartment, where at that time the girl had been living for only a few months after being taken from her previous home by her mother, and not in the applicants parents house, where she had lived for several years from her birth until 9 November 2013. Furthermore, the courts did not examine the circumstances in which I. had taken P. away on 9 November 2013 and whether there had been any agreement between the applicant and I. concerning P.s future living arrangements. In particular, they did not take any statements from the applicant, I. or the police officers who had been called to the applicants parents house on that day and might have been able to elucidate the relevant facts, especially as the applicant claimed to have been misled by the police. In that connection, the Court notes that the Lithuanian Code of Civil Procedure allows courts examining family cases to obtain evidence on their own initiative . It furthermore notes that although, as indicated by the Government, the Code of Civil Procedure provides that decisions on interim measures are to be taken in written proceedings, it also provides that decisions in family cases cannot be taken in the parties absence , and the applicant in his complaint to the Kaišiadorys District Court asked the court to apply the latter provision.

The Court emphasises that it is not its role to determine with which of the parents the child should have resided temporarily during the divorce proceedingsIt nonetheless observes that the decisions on interim measures, by which it was ruled that the applicants daughter should temporarily reside with her mother, had the effect of further strengthening P.s attachment to her mothers place of residence and thereby increased the likelihood that that place of residence would eventually become permanent, in view of the need to ensure stability for the child. Therefore, in view of the significance of those proceedings for the eventual determination of the dispute, the Court considers that it was especially important for the applicant to be involved in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests, as safeguarded by Article 8 of the Convention. In the light of the aforementioned circumstances, the Court is unable to conclude that the proceedings before the Kaišiadorys District Court and the Kaunas Regional Court concerning interim measures provided the applicant with such protection.

Decisions concerning the residence order

The childcare authorities that examined the conditions at the applicants and I.s homes found them both to be suitable for the child . Although it appears that I.s apartment was modest and in need of some renovation and the applicant argued that his home was better suited to his daughters needs , the Court is able to share the view of the Lithuanian Supreme Court  that superior material conditions at the home of one of a childs parents cannot be decisive when the other parent is also capable of providing adequate conditions.

Having examined the material submitted to it by the parties, the Court is unable to conclude that the proceedings before the Kaišiadorys District Court were sufficiently speedy, especially in view of their importance to the applicants right to respect for his family life.

Conclusion

The Court lastly observes that both at the stage of the proceedings concerning interim measures and at the stage of the issuance of the residence order the applicant raised various arguments to support his contention that P. should live with him, such as her strong attachment to him, his parents and his home; the material conditions at his home; and his favourable work schedule. The courts that made the decisions on interim measures refused to examine the substance of those arguments, stating that P.s attachment to her parents and the suitability of their homes would be assessed later. However, at the stage of the issuance of the residence order, the courts held that both parents were capable of ensuring adequate conditions and that there were thus no grounds to change P.s habitual place of residence, which at that time was with I. It is not for the Court to determine what weight the applicants arguments should have had, or what would have been the most appropriate stage of the proceedings at which to examine them. It reiterates, however, that in such cases Article 8 of the Convention requires the domestic courts to conduct an in-depth examination of the entire family situation and of a whole series of relevant factors. In the present case, the applicant found himself in a situation in which an interim decision was made without an examination of the merits of his arguments, and with the passage of time that interim decision determined the final outcome of the case, as a result of which his arguments were no longer relevant. The Court therefore considers that the proceedings in the applicants and I.s divorce case, taken as a whole, were incompatible with his right to respect for his family life under Article 8 of the Convention.

There has accordingly been a violation of that provision.

VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 8

The applicant also complained that the courts that had determined his daughters place of residence had treated him less favourably than his ex-wife, thereby discriminating against him on the basis of his gender. He relied on Article 14 of the Convention.

In the present case, the Court has already found that both the applicant and his ex-wife were considered to be equally capable of caring for their daughter and ensuring adequate living conditions for her; as a result, the residence order was made relying essentially on the girls habitual place of residence. The courts which determined first the temporary and later the permanent place of residence of the applicants daughter emphasised the need to ensure safety and stability for a young child and not to change her habitual place of residence without important reasons . The Court takes note of the conclusions adopted by the Kaišiadorys psychological centre which stated that P. was “likely to suffer anxiety when separated from [her] mother” and that it was “unquestionably essential to fulfil [P.s] need to live with her mother” and about which the applicant complained to the Equal Opportunities Ombudsperson . However, none of the courts which determined P.s place of residence relied on those conclusions or made any statements implying that the mother was more important to the child than the father. Therefore, although the Court has criticised the proceedings in which those decisions were adopted, it is unable to discern any difference of treatment on account of gender in the decisions adopted by the domestic authorities.

It therefore concludes that the complaint under Article 14 of the Convention, taken in conjunction with Article 8, is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

Just satisfaction: 5,000 euros (EUR) (non-pecuniary damage(echrcaselaw.com).

 


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