A.P. AND A.M. v. THE CZECH REPUBLIC

FIFTH SECTION

DECISION

Application no. 22216/20
A.P. and A.M.
against the Czech Republic

The European Court of Human Rights (Fifth Section), sitting on 5 September 2024 as a Committee composed of:

 Lado Chanturia, President,
 Mykola Gnatovskyy,
 Úna Ní Raifeartaigh, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 22216/20) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 May 2020 by two Slovak nationals, Ms A.P. and Ms A.M. (“the applicants”), who are mother and daughter and were born in 1978 and 2008 respectively, and were represented by Ms D. Boková and Ms F. Koubikova, lawyers practising in Prague;

the decision to give notice of the complaint concerning an alleged breach of their right to respect for family life to the Czech Government (“the Government”) and to declare inadmissible the remainder of the application;

the decision not to have the applicants’ names disclosed;

the fact that the Slovak Government did not exercise their right to intervene under Article 36 § 1 of the Convention;

the observations submitted by the respondent Government and the observations in reply submitted by the first applicant;

the comments submitted by the AIRE Centre (Advice on Individual Rights in Europe), that was granted leave to intervene by the President of the Section;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The application concerns an alleged interference with the applicants’ right to respect for their family life on account of the authorities’ decision to transfer the first applicant’s custody of the second applicant to her father (Article 8 of the Convention).

2.  This decision was taken following different attempts made since the parents’ divorce in January 2014 to re-establish regular contact between the minor applicant and her father. Supervised contact took place since April 2016, but meetings were frequently rescheduled or cancelled by the mother, as shown in a report by the child’s guardian of 26 February 2018.

3.  By its judgment of 10 April 2019, the Brno-Province District Court (“the District Court”) decided to place the child in her father’s custody in Slovakia while granting the mother access to the child on the first weekend of each month and on school and public holidays. The court also ordered the father to allow the mother to communicate with the child by telephone or Skype. The decision was based on a report prepared by an expert J.Ch. after the examination of the child and both parents in December 2018. The expert found that the child was highly traumatised by the ongoing conflict between her parents and recommended that their communication should be conducted through a family system specialist. The expert also recommended that visits with the child should take place in a neutral environment at a dedicated facility such as a crisis centre. The District Court also heard the child, both parents and the expert J.Ch. in addition to the examination of documentary evidence, that is medical reports and expert assessments, notably a psychological assessment of the minor applicant carried out by the psychologist T.N., who considered it highly likely that the child had been prompted to refuse contact with her father as a result of external influence. In view of the conclusions of the expert assessment, the guardian applied for out-of-home placement of the child, in the interest of stabilising her psychological state, eliminating psychological pressure from her mother, and supporting contact with her father.

4.  According to the guardian’s report of 30 April 2019, the mother continued to obstruct access. According to the crisis centre’s report of 26 October 2019, both parents and the child participated in three assisted meetings before the mother stopped cooperating.

5.  On 19 November 2019 the appellate court amended the District Court’s judgment indicating that the child was to be placed in her father’s custody from 1 July 2020 after an interim period when she was to be placed in a crisis centre. According to the court, all of the less invasive means to ensure the father’s access to the child had been exhausted without success. The mother had ignored the interim measure on visitation rights and had not permitted access on any occasion. She did not pay the fine for the sum of 15,000 Czech korunas (CZK) for failure to comply with court orders and had continued to act unlawfully. The alternative solutions had not been sufficiently effective. The mother had acted frivolously before the District Court, repeatedly asking for adjournments, and had similarly failed to appear at the hearing before the appellate court on 19 November 2019. The latter had repeatedly warned the mother that she was causing the child psychological distress, and that the child was being continually subjected to the contradictory instructions and wishes of her parents. The father had been shown to be able to take care of the child, had not endangered her in any way, and had been able to provide a more stable, balanced, and peaceful family environment, whereas the mother had failed in her parental role by allowing the child to be alienated from her father by slandering him and preventing his visitation. All the previous interventions by the courts, the guardian, experts, and doctors had failed to improve the situation. The court also took into consideration that the mother was in the process of divorcing another husband, R.P., the family situation was strained, and the mother was preventing R.P. from having access to their child.

6.  On 25 February 2020 the Constitutional Court dismissed a constitutional appeal lodged by the mother (no. IV ÚS 154/20) finding that the ordinary courts had acted in the best interests of the child and had adequately established her wishes, with due regard to her mental state and her mother’s influence. It found that the decision not to subject the child – eleven years’ old at that time – to such a demanding process as being interviewed in court on appeal was based on her medical condition, that is symptoms of heightened neuroticism and a significantly elevated level of anxiety and distress and on the conclusion that her views could correctly be established on the basis of the reports drawn up by her guardian, by a court expert and by the school. As regards her placement in the crisis centre, the Constitutional Court noted that this decision was based on her guardian’s request and on the recommendation of the expert J.Ch. and the clinical psychologist J.N. and that both parents had agreed to this step.

7.  On 10 June 2020 the Public Defender of Rights, after having carried out an inquiry and several interviews with the child, issued a report finding no irregularities in the guardian’s actions.

8.  Between 8 January and 1 July 2020 the child stayed at the crisis centre. On several occasions the District Court had to issue interim measures limiting the mother’s and her other family members’ access to the child on account of their disruptive and uncooperative behaviour exposing the child to significant media coverage causing her additional distress, as described in the reports of the crisis centre.

9.  On 1 July 2020 the child was transferred into her father’s custody. According to the crisis centre’s summary report of 23 July 2020, the child accepted the transfer.

10.  In the report of 8 February 2021 the Slovakian Department of Social and Legal Protection of Children and Social Curatorship indicated that the minor had settled well into her father’s family, and that her father had established a stable home environment.

11.  Subsequently, the mother was provided with an opportunity to have regular contact with the child at the Návrat centre, which she only used to a limited extent. The situation was also examined on several occasions by the Prešov District Court, notably on 14 December 2022 when this court dismissed both parties’ requests and initiated proceedings on the obligation to be imposed on parents and the minor child to undergo social or other professional counselling.

THE COURT’S ASSESSMENT

12.  On 15 February 2022 the Court received a letter from a lawyer appointed by the Czech Bar Association to represent the minor applicant in the proceedings before the Court indicating that following her attempts to contact her client, she received an email indicating in substance that A.M. was not interested in the proceedings, also confirmed by her father’s separate email. No answers were received to the subsequent letters of the Court inviting the representative to submit observations on the minor applicant’s behalf, including to a warning letter of 21 August 2023.

13.  In these circumstances the Court concludes, in accordance with Article 37 § 1 (a) of the Convention, that the second applicant does not intend to pursue the application. Mindful of the fact that the child is now fifteen years’ old, that she was represented in the domestic proceedings by a guardian and that since July 2020 she is in her father’s custody, the Court is satisfied that respect for human rights as defined in the Convention does not require it to continue the examination of the application (Article 37 § 1 in fine of the Convention).

14.  Relying on Articles 6 and 8 of the Convention, the first applicant complained that her family life had been significantly disrupted by the decisions taken on the merits since she had been prevented from seeing her daughter and participating in her upbringing.

15.  The Court, being the master of the characterisation to be given in law to the facts of the case, considers that all of the complaints raised by the first applicant fall to be examined under Article 8 of the Convention (see, mutatis mutandis, Macready v. the Czech Republic, nos. 4824/06 and 15512/08, § 41, 22 April 2010). It will examine the case in the light of its well-established case-law and consider whether, in the light of the case as a whole, the reasons adduced to justify the transfer of custody to the father and the limitation of the applicant’s visiting rights were relevant and sufficient and whether the domestic authorities struck a fair balance between the interests of the child and those of the parents, bearing in mind that particular importance should be attached to the best interests of the child (see, for example, Sommerfeld v. Germany [GC], no. 31871/96, § 64, ECHR 2003‑VIII (extracts), and Z.J. v. Lithuania, no. 60092/12, § 96, 29 April 2014).

16.  It follows from the file that the domestic courts, which are better placed than the Court to weigh the different interests at stake, proceeded carefully with the case and placed the child’s best interests first, as is required by Article 8 as well as by domestic law and international instruments. Without neglecting the child’s positive feelings towards the first applicant, the courts referred to the first applicant’s long-term inappropriate behaviour, her attempts to exert negative influence over A.M., and her non-compliance with interim measures.

17.  As regards the placement of the child in a crisis centre and subsequently in her father’s custody, the Court notes that this decision was taken due to the mother’s intensive efforts to prevent the father from having access to the child and only after she had been repeatedly and unsuccessfully invited by the guardian and by courts to change her obstructive behaviour. The domestic courts based their decisions on the recommendations of the expert J.Ch. and the guardian, who expressed concerns about the child’s psychological development and highlighted the need to relocate her to a “neutral environment”, so as to reduce the negative influence exerted by the mother and to allow the child to re-establish a relationship with her father. The Court further notes that the decision restricting her access to her child was taken only after other, less invasive, arrangements had failed.

18.  The Court observes that the impugned decisions do not prevent the first applicant from maintaining contact with her daughter, which allows their family ties to be maintained. They did not deprive her of access rights or parental authority. She also has the possibility to request the courts to review the existing arrangements if the circumstances so justify.

19.  The Court furthermore notes that the decision at issue was reached following adversarial proceedings, throughout which the first applicant, represented by counsel, had the opportunity to present – both in writing and orally – all arguments in support of her claim. The domestic authorities also obtained expert opinions from different qualified institutions and recommendations of the competent social welfare centres who had followed the family circumstances for years. Against this background, the Court considers, having regard to the explanation provided by the domestic courts and the particular circumstances of the case, that not hearing A.M. on appeal could not have so prejudiced the first applicant’s case as to render it unfair (see K.B. and Others v. Croatia, no. 36216/13, § 143, 14 March 2017).

20.  The above considerations are enough to conclude that the decision‑making process was fair and that the reasons advanced by the domestic courts were relevant and sufficient. The Court further considers that the courts struck a fair balance between the conflicting interests at stake, as required by Article 8 of the Convention.

21.  Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in so far as it concerns the second applicant;

Declares the first applicant’s application inadmissible.

Done in English and notified in writing on 26 September 2024.

 Martina Keller Lado Chanturia
 Deputy Registrar President