KRUŠKIĆ v. CROATIA

FIRST SECTION

DECISION

Application no. 10140/13
Vesna KRUŠKIĆ and others
against Croatia

The European Court of Human Rights (First Section), sitting on 25 November 2014 as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 17 December 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms Vesna Kruškić, Mr Nikola Kruškić [Sr], Ms Emanuela Kruškić and Mr Nikola Kruškić [Jr] are Croatian nationals who were born in 1966, 1961, 2006 and 2005 respectively and live in Mirkovci. They were all represented before the Court by Ms V. Šnur, an advocate practising in Vinkovci.

2. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The first and second applicants are the grandparents of the third and fourth applicants. They all lived in the common household from the birth of the third and fourth applicants together with I.K. (who is the first and second applicants’ son and the third and fourth applicants’ father) and his unmarried wife K.F. (who is the third and fourth applicants’ mother).

5. On 18 January 2008 K.F. left the common household.

6. On 24 August 2011 I.K. left the common household as well. Soon afterwards he rented a flat and moved in with a certain Ms B.B. with whom he was in a relationship.

7. The third and fourth applicants remained in the household of the first and second applicants after I.K. had left but it appears that shortly afterwards a dispute arose between the first and second applicants and I.K. concerning the third and fourth applicants’ place of residence.

8. On 11 October 2011 I.K. called the police and alleged that the first applicant had not let him take his children to his new home. After the phone call, I.K. visited the applicants accompanied by police officers. The first applicant informed the police that I.K. was unreliable and unemployed and had never taken care of his children. The police officers replied that parents were the legal guardians of their children and advised the first applicant to contact the local social welfare centre.

1. Proceedings instituted by the local social welfare centre

9. On 25 October 2011 the first and second applicants submitted to the Vinkovci Social Welfare Centre (Centar za socijalnu srkb Vinkovci, hereinafter “the local social welfare centre”) that the third and fourth applicants had been abandoned by both parents. In particular, the first applicant stated that she and the second applicant had taken care of the third and fourth applicants since their birth and that their father I.K. had never taken care of his children. Rather, he had been keeping child benefits for himself and had not contributed to their maintenance. She further alleged that I.K. was prone to alcohol abuse and had often beaten the children with a belt and forced them to sleep on the floor, and that he had eventually abandoned them on 24 August 2011. Furthermore, on 24 September 2011 he had attempted suicide whereupon he had been kept for ten days in the psychiatric ward of the local hospital.

10. On the same day the centre instituted administrative proceedings for the protection of children’s rights with a view to adopting appropriate child protection measures.

11. On 31 October 2011 the centre (a) asked the psychiatric ward of the Vinkovci General Hospital to report on the health of I.K., as it had had been brought to its attention that he had been treated there, (b) requested a report from the police authorities on their interventions in the family, and (c) asked the local clinic to report on the general state of health of the third and fourth applicants.

12. On 7 November 2011 the police authorities submitted their report on the events of 11 October 2011 (see paragraph 8 above) to the centre.

13. On 30 November 2011 an employee of the centre carried out an onsite inspection of the applicants’ home.

14. On 12 December 2011 and 27 December 2011 respectively the centre carried out onsite inspections of K.F.’s and I.K.’s homes, and on 10 January 2012 interviewed K.F. and I.K. During his interview I.K. denied the first applicant’s allegations (see paragraph 9 above) claiming that she did not allow him to visit his children. In particular, he denied having attempted suicide and explained that he had cut himself while breaking glass during an altercation with B.B. for which he had to be treated at the local hospital. The report eventually obtained from the Vinkovci General Hospital appears to support I.K.’s version of events (see paragraph 63 below).

15. On the basis of those onsite inspections and interviews, on 6 February 2012 the centre prepared a report, which it submitted to the Vinkovci Municipal Court in the proceedings concerning custody of the third and fourth applicants (see paragraphs 26-28 below), which were instituted in the meantime.

16. On 7 May 2012 the centre asked the police to investigate allegations of I.K.’s previous violent behaviour. On 2 October 2012 the police authorities, after having interviewed the first applicant, K.F., I.K. and his sister S.K., informed the centre that they had found no probable cause that I.K. had ever committed a criminal offence of domestic violence against the third or fourth applicants.

17. By a decision of 10 July 2012 the centre ordered the child protection measure of supervision of parental care of I.K. and K.F. for the period of one year. It prepared a programme of supervision and conferred the supervision to a certain Z.P., a nurse. As the third and fourth applicants were at the time still living with the first and second applicants, the measure consisted of monitoring contacts between the children and their parents.

18. On 19 February 2013 Z.P. asked to be relieved of her supervisory duties.

19. On 22 February 2013 the centre’s social worker proposed that the supervision of K.F. and I.K. in the exercise of their parental care be continued with a new person in charge.

20. On 2 April 2013 the centre appointed a certain A.P., a social worker employed at the psychiatric ward of the Vinkovci General Hospital, to supervise the parental care carried out by K.F. and I.K.

21. On 28 June 2013 A.P. suggested that the child protection measure of supervision of parental care ordered by a decision of 10 July 2012 (see paragraph 17 above) be discontinued for its poor results and the first applicant’s lack of co-operation. The measure expired on 10 July 2013.

22. By a decision of 6 February 2014 the centre ordered the child protection measure of supervision of I.K. and K.F. in the exercise of their parental care from 1 February 2014 to 31 January 2015. Since the third and fourth applicants were as of 30 December 2013 living with their father I.K. (see paragraph 79 below), the measure was carried out by occasional visits to their new home.

23. The centre’s reports for February and March 2014 were positive as regards I.K. and the third and fourth applicants’ development in his care, whereas it was noted that K.F. had not visited the children regularly and had not managed to interact with them.

2. Proceedings concerning custody of the third and fourth applicants

(a)  Proceedings between the third and fourth applicants’ parents

24. On 18 November 2011 the third and fourth applicants’ mother K.F. instituted non-contentious proceedings before the Vinkovci Municipal Court (Općinski sud u Vinkovcima) against their father I.K., seeking custody of their common children.

25. Four days later I.K. instituted similar non-contentious proceedings before the same court against K.F. seeking that he be granted custody of the third and fourth applicants. The two proceedings were subsequently joined.

26. On 6 February 2012 the local social welfare centre submitted its report to the court, consisting of the opinion of the psychologist and the opinion of a social worker, both employed at the centre.

27. The relevant part of the psychologist’s opinion reads as follows:

“... it is in the interests of the children to live with their father, who is motivated to take care of them and can adequately meet their needs. In the event of any omissions on the part of the father in caring for the children, the centre will order child protection measures. It is also in the interests of the children to have contacts with their grandparents, and if I.K. cannot agree on contacts between them, his parents could ask the court to grant them access rights. In any case, it would be ill-advised to interrupt the emotional bond the children have with their grandparents, as that could be harmful.

For the mother, I suggest contacts every weekend, on Saturdays from 9 a.m. to 6 p.m. and alternate holidays, at her own home, so that she collects the children at their father’s home and returns them there.”

28. The relevant part of the social worker’s opinion reads as follows:

“As the family situation is extremely complex, we tried to invite I.K. and his parents to the centre so that they could reach an agreement on how to solve their problems, but they never all came at the specified time, always having different excuses ...

...

I am of the opinion that, despite his modest means, the father meets the basic conditions for caring for his children ... it is necessary that the father takes the responsibility and provides an adequate upbringing for the children. I am also of the opinion that detachment of children of their age from their parents can create alienation, with negative consequences for their development.

I am of the opinion that the children’s mother does not meet the conditions for the care of her children. She is aware of that and agrees that the children should live with their father.

For the mother, I suggest contacts every weekend, on Saturdays from 9 a.m. to 6 p.m. and on alternate holidays, at her own home, so that she collects the children at their father’s home and returns them there.”

29. By a decision of 7 February 2012 the Vinkovci Municipal Court (a) granted custody of the third and fourth applicants to their father I.K., (b) granted access rights to their mother K.F. to be exercised on weekends and alternate holidays. In so deciding the court relied on the report of the local social welfare centre.

30. On 15 February 2012 K.F. lodged an appeal against that decision. On 27 February 2012 the first and second applicants also lodged an appeal. In so doing they in substance repeated their allegations against their son I.K. made before the local social welfare centre (see paragraph 9 above). The first and second applicants also argued that, because their father had abandoned them, the children should have been temporarily placed in their custody.

31. By a decision of 28 February 2012 the Vinkovci Municipal Court declared the first and second applicants’ appeal inadmissible as they were not parties to the proceedings.

32. The first and second applicants then appealed against that decision, arguing that they had an interest to lodge the appeal because the local social welfare centre had failed to act in accordance with section 103 of the Family Act after it had been informed that both parents had abandoned the third and fourth applicants (see paragraphs 9 above and 94 below).

33. By a decision of 18 April 2012 the Vukovar County Court (Županijski sud u Vukovaru) dismissed both appeals and upheld both first-instance decisions (see paragraphs 29 and 31 above).

34. By a decision of 12 September 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the subsequent constitutional complaint by the first and second applicants.

(b) Proceedings instituted by the first and second applicants against the third and fourth applicants’ parents

(i) Proceedings for obtaining custody

35. On 12 March 2012 the first and second applicants instituted non-contentious proceedings before the Vinkovci Municipal Court against K.F. and I.K., seeking custody of the third and fourth applicants. They repeated their allegations that I.K. had been beating the third and fourth applicants, who were afraid of him, that he had abandoned them in August 2011 and in September 2011 attempted to commit suicide. The first and second applicants also emphasised their role as the sole carers for their grandchildren, and stated that they had asked the local social welfare centre to temporarily grant them custody, but the centre had failed to render a decision within eight days and thus had acted contrary to section 103 of the Family Act (see paragraph 95 below).

36. By a decision of 20 March 2012 the Vinkovci Municipal Court declared the first and second applicants’ request inadmissible for lack of standing. The relevant part of that decision reads as follows:

“In order to decide whether award custody of a child to a third person or an institution, it is first necessary to deprive the child’s parents of their right of custody. As such a request was not made during the proceedings, nor was it established that the parents were deprived of their right of custody, the petitioners’ request is inadmissible. Furthermore, section 103(1) of the Family Act provides for measures to be taken by a social welfare centre when both parents are absent, prevented from taking care of their child, or for medical or similar reasons unable to do so. In such situations the social welfare centre must, without parental consent, award custody of the child to another individual, children’s home or another legal entity providing social services.

In their request the petitioners rely on section 107 of the Family Act which provision governs contacts between grandchildren and grandparents whereas the petitioners are seeking custody of the children. In fact, the petitioners are seeking [to obtain] the right to live with the children, but they are not entitled to lodge such a request.”

37. By a decision of 4 June 2012 the Vukovar County Court dismissed the first and second applicants’ appeal and upheld the first-instance decision by endorsing the reasons given therein.

38. On 3 October 2012 the Constitutional Court dismissed the subsequent constitutional complaint by the first and second applicants.

(ii) Proceedings to deprive the third and fourth applicants’ parents of the right of custody

39. On 13 April 2012 the first and second applicants instituted non-contentious proceedings before the Vinkovci Municipal Court against K.F. and I.K., seeking that they be deprived of custody of the third and fourth applicants. Relying on section 111 of the Family Act (see paragraph 95 below) they argued that both K.F. and I.K. had abandoned their children and were unfit to care for them.

40. By a decision of 16 May 2012 the Vinkovci Municipal Court declared the request by the first and second applicants inadmissible for lack of standing. In particular, it held that, under section 113 of the Family Act (see paragraph 95 below), such request could be lodged only by the competent social welfare centre or the children themselves.

41. The first and second applicants did not appeal against that decision. It thus became final on 8 June 2012.

3. Proceedings concerning the handover of the third and fourth applicants to their father

(a) Principal proceedings

42. On 1 March 2012 I.K., relying on section 106 of the Family Act (see paragraph 95 below), instituted non-contentious proceedings before the Vinkovci Municipal Court against the first and second applicants seeking the handover of his children, namely, the third and fourth applicants.

43. In their reply of 30 March 2012 to I.K.’s request, the first and second applicants argued that I.K. had often been absent, was unfit to care for his children and had never done so, and that it had eventually abandoned them in August 2011.

44. At the hearing held on 4 April 2012 the court heard the petitioner, the first and second applicants and the representative of the local social welfare centre.

45. In his testimony I.K. explained that in August 2011 he had left only for some time to look for a job at the seaside. He claimed to have agreed with the first and second applicants that they would take care of his children in his absence.

46. The representative of the local social welfare centre supported I.K.’s request, as the first and second applicants had no legal ground to keep the third and fourth applicants in their care. She also submitted that the centre had not adopted child protection measures envisaged for cases of abandoned children as it had been agreed amongst the parties that the children would remain in care of the first and second applicants only temporarily, which was allowed under the Family Act.

47. By a decision of 6 April 2012 the Vinkovci Municipal Court allowed I.K.’s request and ordered the first and second applicants to surrender the third and fourth applicants to their father. It held that the first and second applicants indeed had no legal ground to keep the children in their home.

48. The first and second applicants then lodged an appeal against that decision. They argued that the local social welfare centre had failed to properly assess I.K., namely, his aggressive behaviour and alcohol abuse. They also argued that the centre had completely ignored the fact that the third and fourth applicants had been abandoned by both of their parents. Lastly, they disputed the existence of any agreement between the parties on the temporary care of the children.

49. By a decision of 28 June 2012 the Vukovar County Court dismissed the appeal and upheld the first-instance decision, endorsing the reasons given therein.

50. On 31 October 2012 the Constitutional Court dismissed the subsequent constitutional complaint by the first and second applicants.

(b) Enforcement proceedings

51. Meanwhile, on 13 April 2012 I.K. applied to the Vinkovci Municipal Court for enforcement of that court’s decision of 6 April 2012 (see paragraph 47 above) against the first and second applicants.

52. On 23 April 2012 the Vinkovci Municipal Court issued a writ of execution (rješenje o ovrsi) and scheduled the handover of the children for 3 May 2012, in the presence of the enforcement officer and employees of the local social welfare centre.

53. The intervention scheduled on 3 May 2012 was adjourned at the recommendation of a psychologist employed at the centre, because both children, but especially the fourth applicant, who refused to go with his father, were distressed by the prospect of having to leave their grandparents’ home. The relevant part of the psychologist’s report of the same date reads as follows:

“The situation upset the children, in particular Nikola, who immediately said he did not want to move to his father’s place. The child clearly expressed signs of unease, tension, anxiety and fear, manifested in faster and interrupted breathing, trembling hands, quick eye movements from one adult to another (hoping to recognize their reactions), incoherent thoughts expressed in incoherent and fragmented speech, and snapping fingers. The boy said directly to his father that he did not want to go with him as his father had been mistreating him (yelling at him and his sister, threatening him with a belt, making them sleep on the floor, and not keeping his promises on buying certain items). Emanuela did not show anxiety or fear and seemed willing to move in with her father.

... Despite my efforts to change his opinion about moving to his father’s place, I was unsuccessful. Any conversation on that topic would increase his distress. It was obvious that he could be handed over to his father only by applying force, which was surely not in the interest of the child. Therefore, the enforcement was postponed ...

It was agreed that the children would meet their father on 4 May 2012 at 10 o’clock at their grandparents’ place and that the grandparents would leave the children with their father on 5 May 2012 for a few hours ...”

54. On 4 May 2012 the fourth applicant was examined by a paediatrician as he had been suffering from vomiting, nose bleeds and fear of the possible move from his grandparents’ home to his father’s. The paediatrician prescribed a psychiatric examination.

55. On 7 May 2012 the fourth applicant was examined by a psychiatrist, who prescribed treatment with oxazepam (a medicine for the treatment of anxiety and insomnia) after the child had complained of insomnia and nightmares about his father.

56. On 10 May 2012 the first and second applicants lodged an appeal against the writ of execution. They claimed that the mere attempt of enforcement had caused serious distress to the third and fourth applicants.

57. On 10 July 2012 the Vukovar County Court, acting on the first and second applicants’ appeal, quashed the writ of execution and remitted the case. The relevant part of that decision reads as follows:

“... this second-instance court finds that it is necessary to establish the decisive facts as regards the possible change of the children’s attitude towards their father and the meetings with him. For that purpose, the first-instance court should schedule a hearing with the presence of the parties concerned and the representative of [the local social welfare centre] in order to assess the current relationships between the parties. As regards the handover of the children to [their father], given their attitude toward [him], the enforcement envisaged by the writ of execution would run counter the children’s interests if it causes the described reactions of the children ...”

58. In the resumed proceedings, the Vinkovci Municipal Court held a hearing on 1 October 2012 at which it heard evidence from all the applicants and I.K. The relevant part of the first applicant’s statement reads as follows:

“When [I.K.’s] wife left him, I undertook the majority of the care for the children, as he was not interested in them. He was usually absent for work and he would come back broke, alleging that the boss had tricked him. The children were never emotionally attached to him and speak about him with fear ... He is welcome to come to our home and see the children whenever he wants to ... It is true that I am not allowing him to take the children because he never took care of them, but instead pushed them away. I think the sole reason he wants them is to become eligible for child benefits.”

The relevant part of the second applicant’s statement reads as follows:

“... I have nothing against the meetings between I. and the children in our home, but I am not willing to hand over the children we have raised ... [I.K.] does not work and has no health or pension insurance, so he cannot take care of the children. I have all that and I work ...”

The relevant part of the third applicant’s statement reads as follows:

“I live with my grandparents. My grandmother takes care of me and my grandfather works a lot. I don’t like my father, as he was beating us, even with his belt, and made us sleep on the floor ... I’m afraid of him and I don’t even know B.B. I would not want to live with him even if he bought us a whole room full of sweets and toys. I think he would beat us and make us sleep on the floor again ...”

The relevant part of the fourth applicant’s statement reads as follows:

“... I would not like to live with my father, since he was beating us when he lived with us and was constantly pushing me away from him ... I’m afraid of my father, when they came from the court I was frightened as I thought we would have to live with him ... when they came for me, I had a bleeding nose and I was vomiting, so my grandmother took me to a doctor ... Last night I wet my bed because I dreamt that my father would come and take me away ...”

The relevant part of I.K.’s statement reads as follows:

“... while I lived with my parents, I was absent on five occasions and always for work. It is true that I accidentally cut myself while drunk on 25 September 2011, but it is not true that I cut myself on purpose [i.e. attempted suicide]. Normally I don’t drink, it was an isolated incident. I have never beaten the children and I was not violent towards them ...”

59. On 8 October 2012 I.K. requested a psychiatric assessment of himself and the third and fourth applicants in order to determine his parenting capacity and whether the children’s statements had been given under the influence of their grandparents.

60. On 9 October 2012 the first and second applicants objected to the psychiatric assessment, arguing that a psychological assessment would suffice.

61. On 23 October 2012 the Vinkovci Municipal Court ordered a psychiatric and psychological expert assessment of I.K. and the observation of the third and fourth applicants.

62. Two court experts in psychology and psychiatry carried out their assessment from 14 to 17 December 2012 and on 24 December 2012. They found, inter alia, that the statements of the third and fourth applicants had been formed under emotional and manipulative pressure from the first and second applicants, that I.K. was generally fit for parenting and that the desire of the children to live with their grandparents was not in their own interests. They recommended a gradual transfer of the children to their father, after which they should remain in regular contacts with their grandparents on account of their strong emotional bond.

63. The expert assessment also contained medical documentation on the events of 24 September 2011 (see paragraphs 9 and 14 above) which confirmed that I.K. had in the early hours of 25 September 2011 been admitted to the psychiatric ward of the Vinkovci General Hospital and released four days later. However, the opinion of the psychiatrist and clinical psychologist who had examined him there suggested that he had not attempted suicide but had rather injured himself while throwing glass during an altercation with B.B.

64. On 19 February 2013 the local social welfare centre suggested that the Vinkovci Municipal Court order gradual handover of the third and fourth applicants to their father and to do so in the first month in the form of one-hour meetings every Wednesday, under the supervision of A.P. (see paragraph 20 above), at the Vinkovci General Hospital.

65. On 4 March 2013 the first and second applicants objected to the expert assessment. They argued that I.K. had managed to hide his real character, namely his alcoholism, suicidal tendencies and general irresponsibility. They also argued that the experts had over-emphasised their influence on their grandchildren.

66. On 13 March 2013 the Vinkovci Municipal Court held another hearing and heard evidence from a social worker employed with the local social welfare centre who agreed with the expert assessment.

67. On 22 March 2013 the Vinkovci Municipal Court issued a fresh writ of execution relying on the expert assessment and the opinion of the local social welfare centre. The writ ordered gradual handover of the children according to the following schedule:

- in April 2013, contacts between the third and fourth applicants and their father were to take place every Wednesday at the Vinkovci General Hospital for one hour, as supervision of contacts was required and it was unlikely that I.K. would be allowed to enter the first and second applicants’ home;

- in May 2013, contacts between the third and fourth applicants and their father were to take place every Wednesday for four hours, every Saturday between 9 a.m. and 7 p.m., and every Sunday between 9 a.m. and 7 p.m.;

- in June 2013, contacts of the third and fourth applicants with their father were to take place every Wednesday for four hours, and every weekend from 9 a.m. on Saturday until 7 p.m. on Sunday;

- the final handover of the third and fourth applicants to their father was to take place on 1 July 2013.

68. On 4 April 2013 the first and second applicants lodged an appeal against the writ of execution of 22 March 2013, which the Vukovar County Court dismissed on 6 June 2013.

69. Following the Vinkovci Municipal Court’s request of 21 May 2013, on 17 June 2013 A.P. submitted her reports on the supervision of contacts between the third and fourth applicants and their father for April and May 2013. According to those reports, meetings between them were held only in April, but on some occasions the children refused to interact with their father. In May there were no meetings, owing to the children’s reluctance to meet their father. A.P. stressed that the first applicant had not been co-operative and had not prepared the children for the meetings.

70. On 3 July 2013 I.K. asked the Vinkovci Municipal Court to order the handover of the third and fourth applicants to him, with the assistance of the enforcement officer and the police.

71. On 8 July 2013 the Vinkovci Municipal Court scheduled the handover of the third and fourth applicants to their father for 18 July 2013 in the presence of the enforcement officer, the police and employees of the local social welfare centre. The handover was adjourned as the applicants were not at home on that date.

72. On 29 August 2013 the Vinkovci Municipal Court rescheduled the handover of the children to their father for 11 September 2013. The handover was again adjourned as the applicants were absent.

73. The Vinkovci Municipal Court scheduled another handover for 5 November 2013 on its own premises. On that occasion, the first and second applicants presented themselves before the court but had left the third and fourth applicants with their daughter. It was agreed that the children would spend two hours a day in their father’s home, starting from 20 November 2013 until the end of the year. Their handover was postponed until the end of 2013.

74. On 26 November 2013 the psychologist employed at the local social welfare centre reported on the meetings between the third and fourth applicants and their father. She witnessed the meeting of 20 November 2013 that started in the applicants’ home and continued on the centre’s premises, the meeting of 21 November 2013 in I.K.’s home and the meeting of 22 November 2013 on the centre’s premises. She noted the children’s initial refusal to engage in any interaction with their father and how they had felt more at ease in his company over time. She also noted that the children had addressed the first applicant as “mother” and that the first applicant had prevented them from relaxing in their father’s company. The relevant part of the psychologist’s report reads as follows:

“It is clear that Nikola and Emanuela are copying the grandmother’s attitude and behaviour. They use inappropriate vocabulary for their age and are inappropriately involved in the interaction between their father and their grandmother. The expressed behaviour is equivalent to a grandmother’s behaviour and appears to be imposed. The children are not directly instructed, as that would be visible and could be easily overcome. They are being raised to have strongly built-in and developed attitudes, vocabulary and behaviour. The grandmother is sending contradictory messages and is inducing the children’s internal conflict. It is obvious that the children are suffering from that a lot and are confused. The relationship between the grandmother and the father is still turbulent; the children have developed symptoms of emotional abuse, as they are in a conflict of loyalty, which as a consequence creates problems of social adjustment and social competence.”

75. On 5 December 2013 the local social welfare centre made the following submission to the Vinkovci Municipal Court:

“Despite the efforts of professionals employed with this centre, the children did not even want to hear about going somewhere with their father on 20 November 2012. The father is still passive and wants us to literally hand over the children to him. We have therefore offered one room in the centre so they could meet at our premises on a daily basis ...

We emphasise that the father and his family ... complain on a daily basis ... and allege that ‘everyone points them towards the centre’, which, in their view, holds sole responsibility for the failed attempts to create an emotional bond between the children and their father.

...

We are of the opinion that the employees of this centre, working with the Kruškić family over the past two years, have exhausted all their resources and the measures provided for in the Family Act.

We are of the opinion that carrying out the enforcement in this manner has so far served no purpose. In our view, the grandparents are the main problem, as they have ‘instrumentalised’ the children for their own goals ... They are interfering with contacts and do not allow one millimetre of space for contacts between the father and his children. The children are anxious, not because of the father but because of the grandmother. Their every reaction, movement and gesture is controlled by their grandmother.

We consider that the enforcement could be effective and successful if the grandmother were neither with the children nor in their vicinity. The children are not so much emotionally attached to their grandmother, as acting out of insecurity, and the grandmother has skilfully manipulated and afterwards isolated the children from their father and placed them in her service, mainly to satisfy her irrational needs.”

76. On 13 December 2013 the centre appointed a certain Mr I.Ka., an advocate practising in Vinkovci, to act as guardian ad litem for the third and fourth applicants.

77. On 17 December 2013 the court scheduled the handover of the third and fourth applicants to their father for 30 December 2013 during the meeting on the premises of the local social welfare centre, in the presence of the enforcement officer, the police and employees of the social welfare centre.

78. On 20 December 2013 the centre reported on the contacts between the third and fourth applicants and their father in the period from 20 November to 19 December 2013. Most of the meetings were shorter than scheduled and on some days it was agreed not to have a meeting. There was no meaningful interaction between the children and their father.

79. On 30 December 2013, during the meeting on the premises of the local social welfare centre, the third and fourth applicants were handed over to their father. Since that day the first and second applicant have not had any contact with them.

80. On 31 December 2013 and 2 January 2014 the centre’s psychologist visited I.K.’s home. She noted that the third and fourth applicants had adapted well to their new environment and that their resistance towards their father had subsided. The children asked her when they could go home and how the first and second applicants were doing.

81. On 3 January 2014 the centre’s psychologist and the children’s guardian ad litem visited I.K.’s home. The psychologist visited the children also on 7, 8 and 9 January 2014. She noted that they were more and more relaxed, talkative and curious.

82. On 13 January 2014 the Vinkovci Municipal Court discontinued the enforcement proceedings as the enforcement was completed.

4. Criminal proceedings

83. On 10 October 2013 the Vukovar Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Vukovaru) indicted the first and second applicants before the Vukovar Municipal Court (Općinski sud u Vukovaru) for non-execution of a child protection measure (neprovođenje odluke za zaštitu dobrobiti djeteta), a criminal offence punishable under Article 173(1) of the 2013 Criminal Code (see paragraph 96 below).

84. The criminal proceedings against the first and second applicants are still pending.

5. Proceedings concerning the restraining order

85. On 15 January 2014 the third and fourth applicants’ guardian ad litem instituted non-contentious proceedings before the Vinkovci Municipal Court on their behalf, asking the court to issue a restraining order prohibiting the first and second applicants from approaching them within 500 metres and from disturbing them with phone calls, letters, e-mails, or text messages. He argued that the first and second applicants had manipulated the third and fourth applicants and that the children’s wish to live with their grandparents had been formed under pressure, and was not in the children’s best interests. He referred to the criminal proceedings pending against the first and second applicants.

86. On 3 March 2014 and 5 March 2014 the local social welfare centre’s social worker and psychologist endorsed the proposed measure. The first and second applicants contested their opinions, relying on the earlier expert opinions that had suggested that the children maintain regular contacts with them (see paragraph 62 above).

87. On 28 March 2014 the Vinkovci Municipal Court accepted the request by the guardian ad litem and issued a restraining order in respect of the first and second applicant. The relevant part of that decision reads as follows:

“... having regard in particular to the opinions of the centre’s psychologist and social worker, this court considers that for now it is not in the interest of the children to have contacts with their grandparents, as the children are currently in the process of finding a psychological balance with their father, and due to the lengthy and powerful manipulation of the children by their grandmother, who failed to give priority to the children’s best interests, the contacts ... should be prohibited.”

88. The case is currently pending before the Vukovar County Court following an appeal by the first and second applicants.

6. Proceedings concerning the first and second applicants’ access rights

89. On 15 January 2014 the first and second applicants instituted non-contentious proceedings before the Vinkovci Municipal Court, seeking to be granted access rights as regards the third and fourth applicants one day per week, every second weekend of the month, thirty days during the summer holidays and seven days during the winter holidays, and on special occasions such as religious holidays and birthdays.

90. On 16 January 2014 the Vinkovci Municipal Court requested the opinion of the centre on the first and second applicants’ request.

91. On 5 March 2014 the centre forwarded to the Vinkovci Municipal Court its report prepared in the context of the proceedings concerning the restraining order (see paragraph 86 above).

92. On 10 April 2014 the Vinkovci Municipal Court dismissed the first and second applicants’ request. In so deciding it referred to its decision imposing a restraining order (see paragraph 87 above).

93. By a decision of 18 June 2014 the Vukovar County Court dismissed an appeal by the first and second applicants.

94. On 13 August 2014 the first and second applicants lodged a constitutional complaint alleging violations of their constitutional rights to a fair hearing and respect for their family life. The proceedings are currently pending before the Constitutional Court.

B. Relevant domestic law

1. Family Act

95. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette no. 163/03 with subsequent amendments) read as follows:

Section 100

“(1) When the parents do not live together, a court shall decide which parent shall have custody and on the contacts with the other parent.

...”

Section 103

“(1) The [relevant] social welfare centre shall immediately, and the latest within eight days of learning that both parents are absent, prevented from taking care of their child, or for medical or similar reasons unable to do so, and have not entrusted the child into the care of a person who meets the conditions for a guardian, award custody of the child, even without parental consent, to another individual, children’s home or another legal entity providing social services.

(2) The decision referred to in paragraph 1 of this section may remain in force for a maximum of 60 days.

(3) An appeal against the decision referred to in paragraph 1 of this section shall not suspend its enforcement.

(4) If the social welfare centre finds that the circumstances referred to in paragraph 1 subsist after the period referred to in paragraph (2) of this section has elapsed, it shall immediately issue a decision placing the child under guardianship.

(5) If the parents request the handover of the child and ... the termination of guardianship, and the social welfare centre finds that is not in the child’s interest, it shall ask the competent court to order a child protection measure.

(6) If the social welfare centre does not institute proceedings before the court within 15 days of the parents’ request, the parents may submit their request for the handover of the child to the court.”

Section 106

“If the child remains without legal basis with a person who refuses to hand the child over, the court shall in non-contentious proceedings, upon a request by the parent, the child or the social welfare centre, without delay, decide to remove the child from that person.”

Section 107(1)

“Upon a request by the grandparents or the child, the court shall in non-contentious proceedings, having regard to the welfare of the child, render a decision on contacts between the grandchild and the grandparents.”

2. Measures to protect the rights and welfare of the child

Section 111(1) and (2)

“(1) The court shall, in non-contentious proceedings, deprive a parent of the right to live with and raise his or her child and shall entrust the child to another individual, an institution or another legal entity providing social services, if [that parent] significantly neglects [his or her duty] to raise and educate [the child], or if there is a risk to [him or her] being properly raised.

(2) It is deemed that a parent is significantly neglecting the raising, upbringing and education of [his or her child] if the parent, for example, does not take sufficient care of the child’s diet, hygiene, clothing, health or regular school attendance, or does not deter the child from bad company, staying out late at night and breaking [night-time] curfews, or from vagrancy, begging or stealing.”

Section 113(3) and (4)

“(3) The measures referred to in sections 111 and 112 of this Act shall last up to one year.

(4) The proceedings for imposing the measures referred to in sections 111 and 112 of this Act shall be instituted [by the court] of its own motion or following an application by a social welfare centre or the child.”

Section 116(1) and (2)

“(1) The court may, in non-contentious proceedings issue a restraining order prohibiting a parent, grandparent, sibling or half-sibling who does not live with the child to approach the child in certain places or at certain distance or to disturb it without authorisation.

(2) The proceedings referred to in paragraph 1 of this section may be instituted by the social welfare centre, the parent or the child.”

Section 216(1)

“(1) If a parent does not support his or her child, the grandparents on that parent’s side shall do so ...”

Section 344

“In the course of the enforcement proceedings the court shall strive to protect the child to the maximum extent possible.”

2. The Criminal Code

96. The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 125/11 and 144/12), which entered into force on 1 January 2013, reads as follows:

CHAPTER EIGHTEEN (XVIII)

CRIMINAL OFFENCES AGAINST MARRIAGE, THE FAMILY AND CHILDREN

Non-execution of a child protection measure

Article 173

“Anyone who fails to execute, obstructs or renders impossible the execution of a child protection measure ordered by the court, social welfare centre or [other] State authority shall be punished by imprisonment up to one year.”

COMPLAINTS

97. The applicants complained under Article 8 of the Convention that the domestic courts’ decision in the present case had first severed and later on prevented the re-establishment of grandparent-grandchild relationship between them and thus had violated their right to respect for their family life.

98. The applicants also complained under and Articles 6 § 1 and 13 of the Convention that they had not had any remedy to complain against the local social welfare centre’s failure to institute civil proceedings to deprive the third and fourth applicants’ father of his custody, nor the standing to themselves institute any proceedings to obtain custody of the third and fourth applicants.

THE LAW

A. Locus standi of the third and fourth applicants

1. The parties’ arguments

99. The Government argued that the first and second applicants had not been entitled to lodge the application on behalf of the third and fourth applicants as the only persons who could have done so were their biological parents, namely K.F. and I.K. The Government also argued that as minors the third and fourth applicant lacked the legal capacity to sign the power of attorney presented to the Court by their advocate.

100. The first and second applicants replied that they were merely protecting the third and fourth applicants, as their parents and the local social welfare centre had failed to do so.

2. The Court’s assessment

101. While reiterating the need to avoid a restrictive or purely technical approach regarding the representation of children before it (see A.K. and L. v. Croatia, no. 37956/11, § 47, 8 January 2013), the Court notes that in the present case parental responsibility in relation to the third and fourth applicants have always rested with their parents who have never been deprived of it. It also notes that those applicants had never been under the guardianship of the first and second applicants nor otherwise formally entrusted to them. Moreover, as of 13 December 2013 the third and fourth applicants were in the domestic proceedings represented by a guardian ad litem (see paragraph 76 above). Lastly, given the findings of the domestic courts (see paragraphs 62 and 68 above), the first and second applicants are, at least arguably, in the conflict of interest with their grandchildren.

102. In these circumstances, the Court having regard to its case-law (see Moretti and Benedetti v. Italy, no. 16318/07, §§ 32-33, 27 April 2010) considers that the first and second applicants have no standing to lodge an application on behalf of the third and fourth applicants.

103. It follows that in so far as the present application concerns the third and fourth applicants it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 thereof and must be rejected pursuant to Article 35 § 4.

B. Alleged violation of Article 8 of the Convention

104. The first and second applicants (hereafter “the applicants”) complained that the decisions of the domestic courts awarding custody of the children to their father, their removal from the care of the applicants, as well as those refusing the applicants’ subsequent requests for custody and access rights, had violated their right to respect for their family life. They relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

105. The Government disputed the admissibility of this complaint on four grounds. They argued that the applicants had abused their right of application, lacked victim status, failed to exhaust domestic remedies and that this complaint was, in any event, manifestly ill-founded.

1. The parties’ submissions

106. The Government argued, inter alia, that while under Article 8 of the Convention the applicants had the right to maintain the family ties with their grandchildren, that did not imply the right to be granted custody of the children, to have them adopted or to have their de facto exercise of parental care legally recognised (formalised) in another way. However, that was precisely what the applicants sought to achieve. In particular, in their application form they had stated that the object of their application was: “to have their right to have the children entrusted to them recognised.” That being so, they were, in the Government’s view, in fact seeking to obtain the right of custody of their grandchildren, a right which could not be derived from Article 8 of the Convention.

107. The applicants made no comment in that regard.

2. The Court’s assessment

108. The Court first reiterates that there may be “family life” within the meaning of Article 8 of the Convention between grandparents and grandchildren where there are sufficiently close family ties between them (see Lawlor v. the United Kingdom, no. 12763/87, Commission decision of 14 July 1988, Decisions and Reports (DR) 57, p. 216). While cohabitation is not a prerequisite, as close relationships created by frequent contact also suffice, relations between a child and its grandparents with whom it had lived for a time will normally be considered to fall within that category (see Bronda v. Italy, 9 June 1998, § 51, Reports of Judgments and Decisions 1998‑IV).

109. That being so and given that in the instant case the applicants were living with their grandchildren from their birth until 30 December 2013 (see paragraphs 4 and 7 above), that is, some seven and eight years, the Court considers that the relations between them constituted “family life” protected by Article 8 of the Convention.

110. The Court further reiterates that in normal circumstances the relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent and child and thus by its very nature generally calls for a lesser degree of protection. Therefore, when a parent is denied access to a child taken into public care this would constitute in most cases an interference with the parent’s right to respect for family life as protected by Article 8 of the Convention, but this would not necessarily be the case where grandparents are concerned. In the latter situation, there may be an interference with the grandparents’ right to respect their family life only if the public authority reduces access below what is normal, that is, diminishes contacts by refusing to grandparents the reasonable access necessary to preserve a normal grandparent-grandchild relationship (see Price v. the United Kingdom, no. 12402/86, Commission decision of 9 March 1988, DR 55, p. 224; Lawlor, cited above; and G.H.B. v. the United Kingdom (dec.), no. 42455/98, 4 May 2000). That is so because respect for a family life in such situations implies an obligation for the State to act in a manner calculated to allow the ties between grandparents and their grandchildren to develop normally (see Marckx v. Belgium, 13 June 1979, § 45, Series A no. 31).

111. Thus, the right to respect for family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contacts between them.

112. However, the Court reiterates that contacts between grandparents and grandchildren normally take place with the agreement of the person who has parental responsibility which means that access of a grandparent to his or her grandchild is normally at the discretion of the child’s parents (see Price, cited above; and Lawlor, cited above). In any event, the Court notes that the domestic proceedings that could result in an interruption or restrictions of contacts between the applicants and their grandchildren, in particular those concerning imposition of a restraining order (see paragraphs 85-88 above), and access rights of the applicants (see paragraphs 89-94 above), are still pending.

113. It follows that in so far as that their complaint under Article 8 of the Convention concerns those proceedings, it is inadmissible as premature and must be rejected pursuant to Article 35 § 4 of the Convention.

114. In addition, from the case-law of the Court it appears that in situations where their grandchildren are left without parental care, grandparents could under Article 8 of the Convention also be entitled to have their wish to have their grandchildren formally entrusted into their care, taken into account when decisions on that child’s placement are made (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 222, ECHR 2000‑VIII).

115. In the Court’s view the circumstances of the present case could not give rise to this right of grandparents because it cannot be argued that the applicants’ grandchildren were abandoned by their father – who was away for only a month and a half while leaving them in care of their grandparents (see paragraphs 6 and 8 above) – and thus left without parental care. Since, as correctly pointed by the Government (see paragraph 106 above), Article 8 of the Convention cannot be construed to confer any other custody-related right to grandparents, the Court considers that the decisions of the domestic courts in the various proceedings concerning custody (see paragraphs 24-41 above) as well as those adopted in the proceedings for handover of children (see paragraphs 42-50 above), including the ensuing enforcement proceedings (see paragraphs 51-82 above) do not amount to interferences with the applicants’ right to respect for their family life.

116. It follows that to the extent that their complaint under Article 8 of the Convention concerns those proceedings, it is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

117. In view of these conclusions the Court does not find it necessary to address the Government’s inadmissibility objections based on the alleged abuse of the right of application, the lack of victim status, or the failure to exhaust domestic remedies (see paragraph 105 above).

C. Other alleged violations of the Convention

118. The applicants complained that under the domestic law they had not had standing to institute civil proceedings to deprive I.K. of his custody (see paragraphs 39-41 above) and/or the civil proceedings to have the children entrusted in their custody (see paragraphs 35-38 above), nor an effective remedy to complain against the failure of the local social welfare centre to do so. They relied on Articles 6 § 1 and 13 of the Convention which, in so far relevant, read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

119. As regards the complaint under Article 6 § 1 of the Convention, the Court first notes that the civil proceedings to deprive I.K. of his custody the applicants sought to institute would not concern the determination of their but of their son’s and their grandchildren’s “civil rights and obligations”. It further notes, as regards the civil proceedings to have the children entrusted in their custody, that Croatian law does not recognise any right of grandparents to custody of their grandchildren and that Article 6 § 1 of the Convention only applies to proceedings concerning the determination of a right which has a legal basis in domestic law (see, mutatis mutandis, Price, cited above; and Lawlor, cited above). It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of its Article 35 § 3 and must be rejected pursuant to Article 35 § 4 thereof.

120. As regards the complaint under Article 13 of the Convention, the Court reiterates that the Article in question requires a remedy in domestic law only where an individual has an “arguable claim” that one of his or her rights or freedoms set forth in the Convention has been violated (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). However, given its above findings according to which the applicants’ main complaint under Article 8 of the Convention is inadmissible as premature and manifestly ill-founded (see paragraphs 113 and 116 above), the Court considers that their related complaint under Article 13 of the Convention cannot be considered “arguable” within the meaning of the Court’s case-law. It follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

Full & Egal Universal Law Academy