The delay in reconnecting mother and daughter was mandated by a court investigation after allegations of sexual abuse. No violation of family life.

JUDGMENT 

Stankūnaitė v. Lithuania 29.10.2019 ( no.  67068/11)

see here 

SUMMARY 

The case concerned complaints by the applicant about care decisions related to her daughter and
delays in reuniting them.

The Court found in particular that the authorities had acted with the requisite diligence in the care
proceedings: they had had first to wait for the applicant to be cleared of involvement in the alleged
sexual molestation of her daughter. Once that obstacle was out of the way and the courts had
examined what was in the best interests of the child they had ordered her return to the applicant.

The authorities had then faced obstruction from other family members in handing the child over but
had eventually successfully taken the appropriate measures to deal with what was an extremely
difficult situation.

PROVISION 

Article 8

PRINCIPAL FACTS 

The applicant, Laimutė Stankūnaitė, is a Lithuanian national who was born in 1986.

In late 2008 the applicant was accused by her former partner D.K. of being complicit in the sexual
molestation of their daughter, born in 2004 while the couple were still together. The resulting
investigation into the charges was eventually discontinued in November 2010 with no action taken
against the applicant.

In the meantime in October 2009 care proceedings for the daughter resulted in a temporary
guardianship order being issued in favour of D.K.’s sister N.V., the applicant only having supervised
contact with the girl. The order was issued after D.K. had fled the law-enforcement authorities after
two people, suspects in the molestation case, were shot and killed in Kaunas. D.K. was eventually
found dead in April 2010.

After the investigation into the applicant was dropped, a decision that was upheld by a court, the
applicant applied to have her daughter returned to her and in December 2011 her request was
granted. The court carried out an examination of the circumstances, noting that the criminal charges
against the applicant had been dropped and taking account of the Strasbourg Court’s case-law on
the best interests of the child.

Despite the court order, the involvement of a bailiff and a fine, N.V. refused to hand the child over.
The authorities therefore attempted forcible removals: one such attempt was unsuccessful as
supporters of D.K.’s and N.V.’s family had surrounded the house where the daughter was living and
prevented the handover. Finally in May 2012 a bailiff and the police took the child and returned her
to the applicant, despite the presence of a large crowd.

THE DECISION OF THE COURT

The Court decided that it would examine the applicant’s complaints under Article 8 alone. It also
declared her complaint about the temporary guardianship order of October 2009 as inadmissible as
she had not appealed against that decision and had thus not exhausted effective domestic remedies.
It went on to divide the applicant’s remaining complaints into two periods: from December 2009,
when she had first asked the courts to return her daughter to her, to December 2011, when a court
had granted that request; and the period between that decision and the actual return of her child.
As to the first period, the Court noted that the delay of two years in granting the applicant’s request
to have her child back had been for uncontestably objective reasons.

First of all, it had taken one year for the Regional Court to uphold the investigator’s decision to
discontinue the sexual abuse investigation and then the court dealing with the request on the child
had had to assess what was in her best interests. Once experts had produced their report in the
applicant’s favour, it had only taken two months for a court decision to return the child to her.
The Court could not find any unjustified delays which were attributable to the authorities in those
proceedings. On the contrary, they had dealt with the matter with the requisite diligence.
The applicant had also complained that she had had little or no contact with her daughter during the
several sets of legal proceedings.

The Court noted that Kaunas City District Court had in December 2008 ordered temporary protective
measures, which had prevented the applicant from seeing her daughter. However, it found that the
order had been justified given the investigation into sexual molestation that had just begun. The
contact arrangement was soon revised, allowing the applicant to see her daughter on a regular
basis. That order had stayed in place until the court decision to return her daughter.

The Court concluded that the applicant was not prevented at any stage of the civil proceedings from
seeing her daughter. More importantly, the applicant had not claimed that she was unable to have
contact with her child owing to the authorities’ actions or omissions.

The applicant had also argued that she and her daughter had not been able to feel free during
meetings. The Court noted that the applicant had been provided with psychological counselling and that her relationship with the child had become warmer afterwards. The childcare authorities had also proactively monitored the situation and had assisted the courts.

The Court thus found that the proceedings leading up to the December 2011 court order to return
the child had been conducted with the requisite diligence and that the measures on the applicant’s
separation from and then contact with her daughter had been based on objective reasons.

As for the second period, between the court’s final order and the actual return of the child, the
Court noted that D.K.’s sister N.V. had immediately taken measures to hinder a handover, such as
removing the child from school and keeping her at home.

The bailiff’s efforts to carry out the handover had also been obstructed, firstly because N.V. had not
taken her to school on the appointed day and secondly because of the confrontation with a large
crowd and physical resistance by the child’s grandparents at the house on another occasion. The
bailiff had then developed a plan, in consultation with the police, psychologists and childcare
specialists, which had eventually led to a successful transfer.

Furthermore, the State had not stood by in the face of N.V.’s resistance, imposing a large fine on her
and eventually moving to prosecute her for her actions.
Overall, the authorities had acted with the requisite diligence in enforcing the December 2011 court

decision to return the applicant’s daughter to her. The Court also concluded that the procedural
requirements under Article 8, in particular the fact that the applicant had been represented in the
various proceedings, had also been met.

The Court concluded that the authorities had not failed in their duty to guarantee the applicant’s
right to respect for her private life and there had been no violation of the Convention(echrcaselaw.com).


ECHRCaseLaw

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