THIRD SECTION
DECISION
Application no. 731/22
B.K. and B.B.K.
against Bulgaria
The European Court of Human Rights (Third Section), sitting on 27 June 2023 as a Committee composed of:
Ioannis Ktistakis, President,
Yonko Grozev,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application no. 731/22 against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 December 2021 by two Bulgarian nationals, Mr B.K. and Ms B.B.K., who were born in 1980 and 2009 respectively and live in Haskovo (“the applicants”), and who were represented by Mr P. Borisov, a lawyer practising in Sofia;
the decision to give notice of the complaints concerning non-enforcement of contact rights to the Bulgarian Government (“the Government”), represented by their Agent, Ms B. Simeonova, and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision to grant the applicants anonymity ex officio (Rule 47 § 4 of the Rules of Court);
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The present case concerns complaints under Article 8 of the Convention (alone and in conjunction with Article 13) that the State breached the applicants’ right to family life by failing to facilitate contact between the applicants (father and child) in accordance with a 2019 final judicial decision determining contact rights between them. According to the decision, D.S. (the child’s mother) had custody over the child and the first applicant (the father) had contact rights, subject to a set schedule.
THE COURT’S ASSESSMENT
2. The Court, referring to its case-law (see, among others, Sahin v. Germany (dec.), no. 30943/96, 12 December 2000; Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, §§ 88-90, 1 December 2009, and K.B. and Others v. Croatia, no. 36216/13, §§ 109-110, 14 March 2017), finds that the first applicant has no capacity to act on his child’s behalf. Accordingly, the application brought on behalf of the child is incompatible ratione personae with the provisions of the Convention within the meaning of its Article 35 § 3 and must be rejected as inadmissible pursuant to Article 35 § 4 of the Convention. The first applicant is hereinafter referred to as “the applicant”.
3. The Court considers that it is not necessary to examine the Government’s objection of non-exhaustion of domestic remedies since the complaint is, in any event, inadmissible for the reasons stated below.
4. The general principles concerning the implementation of contact rights of one of the parents have been summarised in Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I, Prizzia v. Hungary, no. 20255/12, §§ 35‑38, 11 June 2013, and Vyshnyakov v. Ukraine, no. 25612/12, §§ 35-36, 24 July 2018.
5. On the basis of the material in the present case, the Court observes that the different authorities were continually involved with the situation throughout the period at stake by pursuing, in good time, a panoply of relevant measures aimed at rebuilding the relationship between the applicant and his child and facilitating their contact rights.
6. In the first two months after the divorce the applicant appears to have met with the child without the involvement of the authorities. Social services reacted promptly and adequately to the applicant’s request for assistance, which he made at the end of January 2020 after he had encountered difficulties with further contact. Specifically, within a week of being first put on notice, social services examined the case, informed the applicant and D.S. of their rights and related obligations, and established the reasons for the child’s reluctance to meet her father. Based on the information gathered, they directed the applicant, D.S. and the child to counselling, initially separately and on several occasions jointly, which started in May 2020. D.S. showed willingness to cooperate and regularly took the child to the meetings.
7. Meanwhile, a bailiff approached by the applicant in March 2020 attempted repeatedly to hand the child over to him, in particular on 17 April, 5 and 19 June, 17 July, and 7 and 21 August 2020. A social worker and a police officer were also present during those attempts. However, they failed due to the refusal of the child - aged eleven at the time and thus capable of forming her own opinions - to follow the applicant. The Court observes that on no occasion did D.S. obstruct in any way the handing over of the child, whose luggage she had prepared each time so that father and child could spend time together in accordance with the contact schedule. The child however repeatedly refused to go with the applicant.
8. Adequate preparatory measures were put in place by social services before every hand-over attempt. Specifically, social services staff met with the child at her own home and discussed with her the importance of having contact with her father. In June 2020, they organised a joint meeting between the parents and the child to facilitate the scheduled actions of the bailiff. The Court thus finds that timely targeted support was effectively provided to the child, which was necessary for her to accept spending time with her father. It reiterates that the State’s obligation in that context is not one of result, but of means (see, among many other authorities, Prizzia, cited above, § 35 with further reference). The authorities explained the child’s lasting refusal to follow her father with her feelings of anger and abandonment following her parents’ divorce, and her strong inflexible views typical of her age.
9. The Court finds it important in this context that, at the end of judicial proceedings for domestic violence brought by the applicant against D.S. in which he claimed that she had been purposefully alienating the child from him, the Haskovo Regional Court rejected the complaint in a final judgment of 21 June 2021, having concluded that there were not even the faintest indications of emotional or mental abuse by the mother of the child.
10. The Court recognises that the authorities had a difficult task faced with the firm reluctance of the child to meet the applicant. It reiterates, however, that any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned, must be taken into account, and more particularly the best interests of the child and her rights under Article 8 of the Convention (see, among many other authorities, Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299-A). In terms of the effectiveness of the response by the State, in the absence of coercive measures applied by the authorities, the Court sees no omissions on their part. While it is true that the bailiff did not fine D.S. for non-compliance with the court decision, as domestic law empowered him to do, no reason for such a measure can be discerned since D.S. effectively cooperated in the process (see paragraphs 6, 7 and 9 above; also contrast with the facts in Pavlovi v. Bulgaria [Committee], no. 72059/16, § 14, 1 February 2022). With respect to the applicant’s claim that D.S. was manipulating the child, the Court finds nothing in the documents in the file, which would contradict the conclusion of the relevant authorities working on the case that this was not the case.
11. In terms of the conduct which the applicant himself displayed in the process (see, on the importance of active parental participation in proceedings regarding children, Prizzia, cited above, § 38), while he initially showed patience and understanding of the feelings of the child, the applicant ceased his attempts to implement his contact rights with the assistance of a bailiff as early as August 2020. Records show that he also refused advice by social workers to be more welcoming to the child during the meetings organised by the bailiff and to also meet with the child alone, without the authorities. As it could be seen from the minutes of meetings which the applicant had with a psychologist between September and November 2020, in late 2020 he abandoned all attempts to contact his daughter. A psychologist repeatedly explained to him the ensuing risk of alienation and advised him to make a sustained effort to see the child regularly. Despite that, in March 2021 the applicant expressed frustration and demonstrated lack of interest in future work with social services, all the while counselling of the child and D.S. by the authorities continued regularly. Even when eventually in October 2021 D.S. herself refused to continue to follow the provided counselling and psychological support, the authorities ordered that it become mandatory; their decision was upheld by the courts and applied in practice. Specifically, the psychologists involved in the case continued to actively seek to alter the child’s negative perceptions of the father.
12. Thus, it cannot be said that the authorities failed to act in a timely and adequate manner to enable the applicant to meet with his daughter in accordance with the final court’s decision on contact rights, or that they did not do enough to help him rebuild his relationship with her.
13. In view of the above and in the light of all the material in its possession, the Court finds that 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,
Declares the application inadmissible.
Done in English and notified in writing on 20 July 2023.
Olga Chernishova Ioannis Ktistakis
Deputy Registrar President