Non-participation of a minor in the trials between his parents for his custody. Violation of the right to respect for his family life

JUDGMENT

C. v. Croatia 08.10.2020 (app. no. 80117/17)

see here 

SUMMARY

Child care and best interests of the child.

The applicant is a child of divorced parents. He appealed to the ECtHR, complaining of a violation of his right to respect for his family life (Article 8 of the Convention), because in his parents’ trials for his custody, he was not legally represented by a special guardian ad litem and the judges failed to hear his opinion. The domestic proceedings are ongoing as the mother’s second lawsuit for custody is pending.

The Court emphasized that Article 8 of the Convention requires domestic authorities to strike a fair balance between the best interests of the child and the interests of the parents, and that the decision-making process must take due account of the best interests of the child.

The ECtHR found that the applicant had not been legally represented by a special commissioner to assist him in understanding the proceedings and had been deprived of his right to be heard and informed of his wishes, despite the provisions of domestic law.

The ECtHR found that these omissions in representation and the right to be heard violated the child’s right to respect for his or her family life (Article 8 of the ECHR) and awarded EUR 7,500 in respect of non-pecuniary damage and legal costs.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant was born in 2006 and lives in Rijeka (Croatia).

The case concerned the protection of a child’s rights in a parental custody dispute.
In January 2010 the applicant’s parents’ marriage was dissolved by court order. The applicant was to
live with his mother and the father was given regular contact.

The mother accused the father of sexually abusing the applicant and applied for a suspension of
contact, which was ultimately refused as the father was found not to have committed such acts. The administrative and court proceedings after the mother’s sexual abuse allegations included an expert report in October 2012 which stated, among other things, that she was emotionally abusing the applicant. On the basis of the report the father applied for and was eventually given custody of
the child by a court order of June 2015, upheld on appeal (“the second set of custody proceedings”).
The mother began a third set of custody proceedings when the applicant returned to her in June
2016 after running away from his father following enforcement of the court order. Those
proceedings are still ongoing. In 2019 the social centre in charge of the case applied to have the
applicant placed temporarily outside the family, but the courts rejected that request.

The applicant complained that in the second set of custody proceedings and their subsequent
enforcement a special guardian ad litem had not been appointed to represent and protect his
interests, that he had not been given an opportunity to be heard in those proceedings, and that the
decision to grant custody to his father without any preparation or adaptation period had not been in
his best interests, as provided for in Article 8 (right to respect for private and family life) of the
Convention.

THE DECISION OF THE COURT…

The Court recalls that Article 8 of the Convention requires that the domestic authorities strike a fair balance between the interests of the child and those of the parents, and that, in the balancing process, particular importance 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 child’s health and development .  The Court further reiterates that, whilst Article 8 contains no explicit procedural requirements, the decision-making process must be fair and such as to afford due respect to the interests safeguarded by Article 8 .

The Court observes that the essence of the present case lies in the applicant’s complaint that the second set of custody proceedings and its enforcement, as conducted by the authorities, were not in compliance with the requirements of Article 8 of the Convention and that they resulted in the disregarding of his best interest.

The Court notes in this connection that the Family Act 2003, applicable at the material time to the applicant’s case, imposed an obligation on the competent social-care centre to appoint a special guardian ad litem in cases where the interests of a child conflicted with those of the parents. In this context, reference should also be made to Article 10 of the European Convention on the Exercise of Children’s Rights, which came into force in respect of Croatia on 1 August 2010, and which provides that the duty of a representative is to act in an appropriate manner on behalf of the child, by providing information and explanations to the child, determining the views of the child and presenting them to the judicial authority.  The Court notes that the applicant’s situation, as a child of divorced parents in a custody battle, would appear to be an example of cases in which children may need special guardians ad litem in order to protect their interests, explain to them court proceedings and decisions and their consequences, as well as generally to liaise between the competent judge and the child. However, the applicant was never provided with such a guardian in the course of the second set of custody proceedings, leaving it to his mother to fulfil this role.

The Court also observes that section 86 of the Family Act 2003, as in force at the material time, provided that the child was entitled to express his or her views in proceedings involving decisions on his or her right or interest. Moreover, the Court reiterates that, pursuant to the international standards in force, in any judicial or administrative proceedings affecting children’s rights under Article 8 of the Convention, children capable of forming their own views should be sufficiently involved in the decision-making process and be given the opportunity to be heard and thus to express their views.

In the present case, the applicant was never interviewed in person by any of the judicial authorities deciding on his custody.

In the Court’s view, the combination of flawed representation and the failure to duly present and hear the applicant’s views in the proceedings irremediably undermined the decision-making process in the instant case.  Without prejudice to any future decision the domestic courts might adopt in the present case, which is still pending before the domestic courts , the foregoing failures lead the Court to conclude that there has been a violation of the applicant’s right to respect for his family life, as guaranteed by Article 8 of the Convention.

Just satisfaction: EUR 7,500 (non-pecuniary damage) and EUR 2,080 (costs and expenses)

 


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