Communicated on 30 June 2014
SECOND SECTION
Application no. 36137/13
G.B.
against Lithuania
lodged on 17 May 2013
STATEMENT OF FACTS
The applicant, Ms G.B., is a Lithuanian national, who was born in 1975 and lives in Meckenheim, Germany. She is represented before the Court by Mr N. Žvingila, a lawyer practising in Kaunas.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2001 the applicant married E.B. in Germany. Two daughters were born to them (in 2002 and 2003). All four of them lived in Lithuania.
In 2010 both the applicant and her husband applied to a Lithuanian court to have their marriage dissolved. The applicant asked that both daughters be placed to reside permanently with her. Her husband asked the court that it should order that the girls reside with him.
The applicant then asked the court to grant a temporary protective measure – to order that the girls would temporarily reside with her until the case was decided on the merits. She submitted that the girls had no citizenship. She feared that her husband might take the girls to Germany with him and then she would face obstacles in securing the return of her daughters.
By a ruling of 12 April 2010 of the Marijampolė District Court and a ruling of 31 May 2010 of the Kaunas Regional Court the applicant’s request for a temporary protective measure was granted. Thus, the girls were to stay with the applicant until the end of the civil proceedings concerning custody. The latter court ruling, however, specified that the applicant’s husband retained the right to have contact with his daughters.
Shortly thereafter, the applicant submitted to the Marijampolė District Court a fresh request, namely that her husband’s right to see his daughters be restricted. The applicant’s husband informed the court that the girls already resided with him and that they did not wish to reside with their mother. The child care authority stated that there was no reason why E.B.’s should be deprived of the right to see his daughters. The authority also suggested that, to avoid stress, at this stage of the proceedings the girls should not be heard in court.
On 9 July 2010 the Marijampolė District Court established that when on 4 June 2010 the applicant had allowed her husband to see their daughters for three hours, he had not returned them to the applicant’s home. The court noted that both parents had a right to raise their children and to have contact with them. Given that the court hearing on the merits of the parties’ action was scheduled for 19 July, when deciding on the temporary protective measure the court also deemed it appropriate not to hear the children. The court ordered E.B. to return the daughters to their mother. Should he fail to do so, the applicant could contact a bailiff, who should then take the daughters and their documents and hand them over to the applicant. Until the end of civil proceedings concerning divorce and custody, the applicant’s husband was granted a right to see his daughters every second weekend, from Saturday morning until Sunday evening, when he could take them from the applicant’s place of residence and spend time with them. He was only forbidden to travel outside Lithuania with the girls.
This court ruling became final and had executory force.
According to a letter of a bailiff dated 21 February 2011, the girls had expressed a clear wish to leave their father’s place of residence and to return to live with the applicant. For the bailiff, the court order for protective measures could only have been enforced by using [physical] force against the daughters, which the bailiff did not do.
By a decision of 17 March 2011 in separate criminal proceedings, a court found E.B. guilty of failure to comply with the aforementioned court order of 9 July 2010. He was given a fine of approximately 750 euros (EUR). For her part, the applicant had a conviction for forgery of documents, although the civil court did not specify further details regarding that conviction.
On 27 April 2011 the girls obtained documents to the effect that they are Lithuanian citizens.
On 8 November 2011 the Marijampolė District Court took a decision on the merits of the applicant’s and her husband’s action as to divorce and the girls’ custody. The applicant did not take part in the hearing, but was represented by her lawyer. E.B., as well as his lawyer and two representatives of the child care authorities, were present. The representative of the child care authority of Kaunas city, where the applicant had declared her place of residence, submitted that the girls should reside with the applicant, because there was no information that the latter had abused her parental powers. The representative also argued that the father obviously had an influence over the girls. In contrast, the representative of child care authority of Marijampolė town, where the girls lived with their father and attended school, argued that the girls should stay with their father, whom they were accustomed to live with; such was the girls’ wish. The representative submitted that the applicant communicated with the daughters rarely, whereas their father took care of them on a daily basis. The school results showed that the girls had no psychological damage. The representative also submitted that, once the applicant gave birth to a further child, she would have less time to take care of the two daughters. There was also a likelihood that the applicant would live in Germany, where she was at the time of those court proceedings.
The girls were heard at the court hearing. They stated that they wished to remain living with their father and did not want to reside with their mother (the applicant). According to the expert psychological report ordered earlier by the court, the girls wished to communicate with both parents. However, because of prolonged conflict between their parents, and, in part because of the father’s influence, the daughters had established parental alienation syndrome with regard to their mother. For that reason, as well as due to their young age, they had difficulties in expressing their opinions, but felt more at ease with their father.
The Marijampolė District Court also noted that in 1996 E.B. had been convicted in Germany of rape, and in 1998 he had been convicted of a drug-related crime. Both times execution of the sentence had been suspended and his convictions had expired in 2000 and 2003 respectively.
The Marijampolė District Court observed that there was no information in the file to the effect that either of the parents had failed in their duties to raise the daughters or that their behaviour was immoral. That being so, they had not always acted with the children’s best interests in mind, because during the court proceedings neither of the parents had attempted to find a compromise as regards the daughters’ place of residence or as regards their contact with them. The court emphasised that the children had to grow up in a safe environment which they were used to. However, even though by court order of 9 May 2010 the daughters were to reside with their mother, the factual situation was that since 5 June 2010 they had been residing with their father. According to the father’s explanation, the applicant had allowed him to be see his daughters, but when he had tried to return them to the applicant on 5 June 2010, the applicant had not picked up her phone and he was obliged to drive the girls to Marijampolė. The girls themselves had expressed the wish to stay with him. The first instance court thus held that although the father could have had some influence over the girls’ choice as to whom they preferred to live with, that influence was not decisive. Thus, the daughters had already stated on 11 June 2010 that they preferred living with their father. It was the court’s view that such a short time – five days – in between those two dates was not sufficient for the girls’ father to influence his daughters. It was thus clear that already then there was a certain tension between the girls and their mother.
Lastly, the Marijampolė District Court also noted that even though the applicant had declared her place of residence in Kaunas, since August 2011 she was also registered as living in Germany. There were medical documents from Lithuanian and German hospitals to the effect that the applicant resided in Germany with a child. Even though the applicant’s lawyer maintained that the applicant was in Germany only until she gave birth, there was no proof that she would return to Lithuania. For the court, the question where the father or mother would live with the children was in any case irrelevant, because the girls spoke German, they had previously lived in Germany and thus could adjust to living there easily. What was essential when deciding the question of the girls’ place of residence was to ascertain to whom the children were more attached and which parent devoted more attention to the children’s interests. Given that no circumstances showing that either of the parents had neglected their parental duties had been established, the Marijampolė District Court deemed it most suitable to take into account the daughters’ wish to live with their father.
The first instance court also ordered the applicant to pay the girls’ father maintenance costs (EUR 60 for each daughter per month) and set up a contact order for the applicant to see her daughters. The court also separated the applicant and her husband.
By a ruling of 22 March 2012, the Kaunas Regional Court, in written proceedings, upheld the lower court’s decision. The applicant asked the appellate court to question some witnesses and thus to hold a hearing. The appellate court dismissed the request for the hearing of the witnesses, on the ground that one of those witnesses had already been questioned by the Marijampolė District Court. As to the other witnesses, the applicant had failed to specify what relevant circumstances they could describe and why she had not asked that those other witnesses be questioned during the first instance court proceedings. Under Articles 321 and 322 of the Code of Civil Procedure, the appellate court had discretion as to whether to hold a hearing or not. The appellate court also refused to admit in evidence two documents from child care authorities and the applicant’s letters to her daughters. According to the appellate court, those pieces of evidence had not been analysed in first instance court, which was a general requirement for the evidence to be admitted on appeal.
As to the girls’ place of residence, it was in the best interests of the children for them to stay with their father, with whom they had lived as of 5 June 2010. On that point it was also paramount that during the first instance court hearing the girls had confirmed their wish to live with their father. Even though E.B. had prior convictions in Germany, those had expired. Similarly, both he and the applicant had convictions in Lithuania, thus neither of them could be characterised only in a positive light. What mattered was that the applicant had left Lithuania and her contact with the girls was merely episodic, whereas the girls’ father took proper care of them and actively participated in raising them. The girls lived with their father, attended school and had proper living conditions. There was no evidence in the case-file to the effect that E.B. would abuse his parental rights. Moreover, under the United Nations Convention on the Rights of the Child, the child had a right to be heard in all matters affecting him, which had been done in the present case.
As to temporary protective measures, the Kaunas Regional Court observed that, as a rule, those were aimed at guaranteeing the execution of a future court decision. Accordingly, the first instance court, when adopting a decision after having examined merits of the case, was not bound by earlier decisions on temporary protective measures.
The applicant then lodged an appeal on points of law. She argued, among other things, that because her former husband had failed to observe the court ruling on temporary protective measures, their daughters had lived with him since 5 June 2010 and thus developed parental alienation syndrome with regard to the applicant. She also insisted that E.B.’s former convictions in Germany for crimes of sexual violence and drug-related crimes were significantly weightier, as regards his moral values, than her conviction in Lithuania for forgery of documents. The applicant was further dissatisfied with the appellate court’s refusal to admit in evidence new documents.
In his written reply, E.B. submitted that the applicant had always known about his earlier convictions in Germany. However, those had expired long time ago. It was unfair for her to bring up that issue now.
By a final ruling of 14 December 2012 and in written proceedings, the Supreme Court upheld the appellate court’s ruling. It observed that at the first instance court hearing the girls had expressed their preference to reside with their father. Even so, the first instance court had issued a contact order and thus the applicant’s rights to communicate with her daughters had not been restricted. The applicant had limited material possibilities to support her children; she had no regular source of income. Even though the applicant stated that she lived in Lithuania, evidence showed that she had declared her place of residence in Germany, where she took part in court proceedings so that the name of her third child be registered. As to E.B., his convictions in Germany had expired a long time ago. There was no proof that he had negative impact on the girls. On the contrary, the girls studied well at school and behaved well. It was thus in the best interest of the girls to stay with their father.
Lastly, whilst noting that when refusing to admit in evidence new documents submitted by the applicant the appellate court had not explained whether those documents were relevant to the merits of the case, which did not correspond to the Supreme Court’s general guidelines, this did not affect the overall lawfulness of the appellate court’s ruling.
COMPLAINTS
The applicant complains that in placing her two daughters to reside with their father the Lithuanian courts breached her rights under Article 8 of the Convention. She argues that even though temporary protective measures to place the girls to reside with her pending the civil proceedings had been ordered, the bailiff and the child care authorities, whom the applicant claims to have asked for assistance a number of times, provided her with no support. As a result, the girls developed parental alienation syndrome towards their mother. The applicant was thus barred from living with her daughters, raising them and taking care of them.
Under Article 6 § 1 of the Convention the applicant further complains that the Kaunas Regional Court decided her appeal by way of written proceedings, without the applicant being present. In her view, given the issue at stake – whom the girls should live with – a public hearing had been necessary. The applicant is also dissatisfied that the Kaunas Regional Court refused to admit in evidence new evidence which she had presented and which, in her words, proved that E.B. prohibits their daughters from having contact with the applicant. Lastly, the applicant insists that in their reasoning the courts did not give sufficient weight to the forensic experts’ conclusion to the effect that her daughters have developed parental alienation syndrome.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 8 of the Convention on account of the fact that in the wake of civil proceedings concerning the custody of the applicant’s daughters, it was decided that the daughters’ place of residence was to be with their father and not with the applicant (see Z.J. v. Lithuania, no. 60092/12, §§ 96-99, 29 April 2014, not yet final, and the case-law cited therein)? Did the courts reach a fair balance of the interests involved, bearing in mind the applicant’s complaint that the bailiff did not execute the court order for temporary measures?
2. Has there been a violation of the applicant’s right to a fair and public hearing within the meaning of Article 6 § 1 of the Convention (see Elsholz v. Germany [GC], no. 25735/94, §§ 62-66, ECHR 2000‑VIII)? In this connection, reference is made to the fact that the Kaunas Regional Court refused to admit for examination some of the documents requested by the applicant and to the fact that the Kaunas Regional Court did not hold a hearing in the applicant’s case but decided her appeal by the way of written procedure. Did the applicant explicitly request that a hearing be held when her case was decided by the Kaunas Regional Court? Did the applicant express her wish to attend that hearing?
The applicant is requested to submit copies of her appeal and her appeal on points of law.
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