FIRST SECTION
Application no. 36216/13
K.B. and OTHERS against Croatia
lodged on 22 May 2013
STATEMENT OF FACTS
The applicants K.B. (“the first applicant”), D. (“the second applicant”) and P. (“the third applicant”) are Croatian nationals who were born in 1968, 2001 and 2005 respectively. The first applicant lives in Kloštar Ivanić, while the second and third applicants live in Kaštel Stari. They are represented before the Court by Ms L. Kušan, a lawyer practising in Ivanić-Grad.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant married I. in 2002. The second and third applicants were born of the marriage.
According to the first applicant, I. is suffering from post-traumatic stress disorder and alcoholism and had allegedly abused the applicants.
On 24 March 2009 the first applicant contacted the Split Social Welfare Centre (Centar za socijalnu skrb Split) and expressed fear for her life and lives of the second and third applicants. She claimed that I. had been ill-treating the entire family for years, and had lately become unbearable.
On 25 March 2009 The Split Social Welfare Centre informed the Kaštela Police Department (Policijska postaja Kaštela) about this incident and about its intention to take actions for protection of children’s rights under the Section 108 of the Family Act. On the same day the applicants moved from Kaštel Stari to Kloštar Ivanić, which are about 400 kilometers apart, in order to live with the first applicant’s parents, I.K. and J.K.
On 6 April 2009 I. was interviewed by the unidentified employee of the the Split Social Welfare Centre. In a telephone conversation with a social worker of the Ivanić-Grad Social Welfare Centre (Centar za socijalnu skrb Ivanić-Grad) that employee of the Split Social Welfare Centre described I. as an aggressive alcoholic in need of treatment, and claimed that return of the applicants would necessitate actions of the Social Welfare Centre.
In June 2009 the Ivanić-Grad Social Welfare Centre carried out a psychological assessment of the applicants which established that the first applicant was highly emotionally burdened with her family environment in which one can detect mental abuse. The first applicant suffered from high levels of stress and anxiety. The second applicant was anxious whenever I. emerged as a topic and was expressing fear of him.
In July 2009 a psychologist conducted an interview with the second and third applicants. They expressed negative emotions towards I. and fear from corporal punishment by him. The Ivanić-Grad Social Welfare Centre noted gradual improvement of the second and third applicants’ mental state during several months they had spent in Kloštar Ivanić with the first applicant and their grandparents.
The first applicant spent July 2009 in a psychiatric hospital. A psychiatrist diagnosed her as suffering from strong anxiety and depression, results of longer period of mental abuse by I., consisting of verbal aggressiveness, mockery, intimidation and threat. Until July 2010 the applicants lived in Kloštar Ivanić, while I. had free access to the second and third applicants.
The second and third applicants spent their 2010 summer holidays with I. After that, I. did not allow them to go back to Kloštar Ivanić and the first applicant has not had a chance to meet them ever since.
In September 2010 I. enrolled the second applicant in the elementary school and the third applicant in the kindergarten, both in Kaštel Lukšić.
On 10 September 2010 the Ivanić-Grad Social Welfare Centre asked the Split Social Welfare Centre to take necessary steps for handing over the second and third applicants to the first applicant.
On 13 September 2010 the Split Municipal Court - Kaštel Lukšić Permanent Office ordered I. to hand over the second and the third applicants to the first applicant within eight days.
On 11 October 2010 the Split Social Welfare Centre informed the Split Municipal Court-Kaštel Lukšić Permanent Office (Općinski sud u Splitu – stalna služba u Kaštel Lukšiću) that the first applicant had been unable to establish any contact with the second and third applicants.
On 27 October 2010 the Ombudsman for Children, upon the first applicant’s request, recommended to the Ivanić-Grad Social Welfare Centre and the Split Social Welfare Centre to promptly examine the allegations of the first applicant on the inability to meet the second and third applicants, and suggested active participation of the Social Welfare Centres in the enforcement proceedings.
On 20 December 2010 the Ivanić-Grad Social Welfare Centre informed the Split Social Welfare Centre that the first applicant had expressed worries about her children’s well-being, had asked the Social Welfare Centre to check on them and had claimed that the children were unavailable for telephone conversations with her and complained about headaches.
The first applicant submitted several complaints to the Split Municipal Court-Kaštel Lukšić Permanent Office, Split Social Welfare Centre and the Ministry of Justice concerning the length of divorce proceedings and the non-enforcement of the order to hand over the children of 13 September 2010.
1. Proccedings concerning I.’s access rights
In June 2009 I. instituted non-contentious proceedings in the Ivanić-Grad Municipal Court (Općinski sud u Ivanić-Gradu), seeking access rights to the second and third applicants. After the first applicant had been admitted to the psychiatric hospital, I. amended his action and requested the placement of the second and third applicants into his care.
On 31 July 2009 the Ivanić-Grad Municipal Court decided to temporarily, until 1 December 2009, place the second and third applicants into care of I.K. and J.K. Meetings of I. and the second and third applicants were ordered every Saturday between 9 am and 7 pm. The psychiatric evaluation of the first applicant and I. was also ordered.
On 29 October 2009 two court experts in psychology and psychiatry established, inter alia, that both the first applicant and I. suffered from emotional disabilities, which however did not disqualify them as parents. Since the first applicant had been willing to ask for professional help and the children had clearly expressed the lack of trust in I., the experts recommended the placement of the second and third applicants into the custody (izvršavanje neposredne roditeljske skrbi) of the first applicant.
On 27 November 2009 the Ivanić-Grad Municipal Court temporarily deprived I. of the right to live with the second and third applicants, until 28 June 2010 or the adoption of a final decision of the competent court on placement of the second and third applicants into care. The Municipal Court placed the second and third applicants into care of the first applicant. The Municipal Court also ordered weekly meetings of I. and the second and third applicants and four-day stays of the second and third applicants at I.’s, during Christmas and Easter holidays.
On 3 March 2010 the competent County Court accepted I.’s appeal, quashed the first-instance decision and remitted the case.
On 15 April 2010 I. informed the Ivanić-Grad Municipal Court that he no longer wished to pursue the proceedings.
On 16 April 2010 the Ivanić-Grad Municipal Court discontinued the proceedings.
2. Proceedings concerning the divorce of the first applicant and I.
In April 2009 the first applicant instituted divorce proceedings in the Ivanić-Grad Municipal Court, which relinquished the jurisdiction to the Split Municipal Court – Kaštel Lukšić Permanent Office.
In March 2010 the Split Municipal Court – Kaštel Lukšić Permanent Office ordered another psychiatric evaluation of the applicants and I.
On 10 May 2010 the two court experts in psychology and psychiatry recommended enrolment of parents in a parenting school and placement of the second and third applicants into care of the first applicant, while maintaining variety of contacts with I., including on Saturdays, half of the winter holidays and the entire summer holidays.
In June 2010 the Split Municipal Court – Kaštel Lukšić Permanent Office issued an injunction order ordering the second and third applicants to spend their summer holidays with I., from 1 July 2010 to 30 August 2010.
On 20 May 2011 the Split County Court (Županijski sud u Splitu) dismissed the first applicant’s appeal against the injunction order.
Meanwhile, I. failed to hand over the second and third applicants to the first applicant after 30 August 2010 (see above).
Pursuant to the agreement between the first applicant and I., on 7 April 2011 the Split Municipal Court – Kaštel Lukšić Permanent Office divorced the marriage of the first applicant and I. and placed the second and third applicants into I.’s care, awarded joint custody over children and ordered the meetings of the first applicant and the second and third applicants every second weekend in Kloštar Ivanić. The first applicant was also ordered to pay 1,400 Croatian kunas (HRK) a month for the maintenance of the second and third applicants, while I. was ordered to pay the same amount for the maintenance of the first applicant.
3. Enforcement proceedings concerning the first applicant’s access rights
After I.’s non-compliance with the terms set out in the divorce judgment, on 30 June 2011 the first applicant instituted enforcement proceedings in the Split Municipal Court (Općinski sud u Splitu), seeking the enforcement of her access rights.
On 18 August 2011 the Split Municipal Court heard evidence from the first applicant and I.
On 11 October 2011 the Split Municipal Court heard evidence from N., the employee of the Split Social Welfare Centre who was supervising the exercise of parental care (nadzor nad izvršavanjem roditeljske skrbi), and from a psychiatrist J.
On 28 December 2011 the Split Municipal Court dismissed the first applicant’s request. The Municipal Court found that the sole reason for non-enforcement of the divorce judgment was children’s reluctance to meet their mother. On the basis of N.’s and J.’s testimonies the Municipal Court concluded that the children had lost confidence in their mother and that forced meetings of the applicants would not be advisable. The Municipal Court did not find I. liable for obstruction of applicants’ meetings.
4. Proceedings concerning the new access arrangements
In the end of 2011 the first applicant instituted the non-contentious proceedings in the Split Municipal Court seeking a change in the access arrangements.
On the hearing of 21 May 2012 N. gave evidence. The relevant part of her statement reads:
“The children show resistance towards their mother, the strongest one I have seen in my 29 years of experience. After only mentioning the mother, D. starts to scream and shout and P. simply follows his brother’s example. ... I have learned from their teachers that, whenever [issues concerning] family [matters] are on school’s agenda, the children feel awkward. Father should work more with the children because they live with him ... Before, there was at least some telephone contact between the mother and the children, now the children do not want to speak to her.”
On 6 August 2012 the Split Municipal Court ordered the meetings of the applicants every last weekend of the month, on Saturday from 3 pm to 7 pm and on Sunday from 11 am to 3 pm, under N.’s supervision. It dismissed the first applicant’s request to spend two weeks in August 2012 with the second and third applicants. In so deciding, the Municipal Court relied on the statement of N., the expert opinion of a psychologist and, in particular, the expert opinion of the Split Social Welfare Centre. The latter opinion suggested the meetings of the applicants once a month, having in mind the risks involved in meetings without expert supervision and the necessity to gradually re-establish contacts between the applicants.
On 10 January 2013 the Split County Court (Županijski sud u Splitu) dismissed the first applicant’s appeal against the first-instance decision.
5. Criminal proceedings against I.
On 8 February 2011 the first applicant lodged a criminal complaint against I. with the Ivanić-Grad Police Department (Policijska postaja Ivanić-Grad), accusing him of obstruction and non-compliance with measures for protection of children and minors (kazneno djelo sprečavanja i neizvršenja mjera za zaštitu djeteta i maloljetne osobe).
It appears that the proceedings are still pending.
6. Other proceedings
As a consequence of her inability to enforce courts’ decisions on her access rights, the first applicant complained before the Ivanić-Grad Social Welfare Centre and the Split Social Welfare Centre on numerous occasions.
On 16 February and 25 November 2011 the first applicant requested the assistance of the Ivanić-Grad Social Welfare Centre to contact the second and third applicants.
On 16 April 2012 the applicant repeated her request for assistance of the Ivanić-Grad Social Welfare Centre and claimed that she had been following N.’s recommendations fully and had agreed to certain court orders simply to spare the second and third applicants from further traumas, but had no intention to give up on her children.
On 26 September 2012 N. called the first applicant and told her not to come for the scheduled meeting with the second and third applicants since she would not be able to see them since the second applicant’s psychologist had not allowed such meetings. On the following day the first applicant informed the Ivanić-Grad Social Welfare Centre about that telephone conversation and asked for any kind of arrangement that would enable her to meet the second and third applicants.
On 23 November 2012 the meeting of the applicants was adjourned since N. had to leave the country for an educational seminar. The first applicant reiterated her request to both Social Welfare Centres for a meeting of the applicants.
On 1 December 2012 the meeting of the applicants was scheduled in the premises of the Split Social Welfare Centre. After I. had ignored this meeting, the first applicant and N. came to his doorway. The second and third applicants did not want to approach the first applicant. The second applicant told I. to hit the first applicant and wanted to call the police so it would scare the first applicant away.
On 5 March 2013 the first applicant informed the Ivanić-Grad Social Welfare Centre that I. had stopped taking the second and third applicants to the psychologist.
On 2 May 2013 I.’ ignored the scheduled meeting of the applicants again. After the first applicant and several employees of the Split Social Welfare Centre came to I.’s doorway, the second and third applicants refused to meet the first applicant.
COMPLAINTS
The applicants complain under Article 8 of the Convention that the State’s failure to enforce the access arrangements amounts to a violation of their right to respect for their family life.
The applicants also complain, under Article 13 in conjunction with Article 8 of the Convention, about the lack of effective remedies in respect of the alleged violation of their right to respect for their family life.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention? In particular, has the first applicant’s inability to meet the second and third applicants in three years amounted to a violation of the applicants’ right to respect for their family life?
2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8 of the Convention, as required by Article 13 of the Convention?
The Government are requested to submit two copies of the entire case file in all relevant proceedings.
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