SECOND SECTION
Application no. 46600/11
Eugeniu MANIC against Lithuania
lodged on 12 July 2011
STATEMENT OF FACTS
The applicant, Mr Eugeniu Manic, is a Moldovan and Romanian national who was born in 1971 and lives in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 18 September 2007 the applicant and V.T., a Lithuanian citizen, had a son A.M., who is also a Lithuanian citizen. The applicant and the child’s mother lived in London and were not married. Until the son’s birth V.T. worked for a private company, where she was given nine months maternity leave and also received child benefits.
In June 2008 the three of them went to Lithuania for a visit. After a quarrel, the applicant left for London. Later that month V.T. went to London alone, told the applicant that their relationship was over, took her belongings and, having said that she was not going to share the child’s care until the boy was six years old, suggested resolving custody issues in court.
1. The proceedings regarding the child’s return to the United Kingdom
The applicant claimed that his son was abducted and held in Lithuania without his consent. He initiated proceedings before the Vilnius Regional Court, asking that the child be returned to the United Kingdom, which was his son’s usual permanent place of residence.
By a decision of 6 March 2009, the Vilnius Regional Court dismissed the applicant’s request. The applicant, V.T., two of her lawyers and the representatives of the Lithuanian child care authorities were present at the hearing. V.T. argued that the applicant did not take care of the child. She also maintained that the applicant did not want to pay for her upkeep should she return to London. She admitted that on 17 July 2008 she had declared her and her son’s permanent place of residence as her parents’ address in Lithuania. The representative of the Lithuanian child care authorities asked the court to resolve the issue of the child’s return to his country of birth as it saw fit. Nonetheless, the authorities observed that the child had good living conditions in Lithuania and was growing up in a secure environment among loving people. If the applicant wanted the child to go back to London, he had to guarantee appropriate living conditions for both the mother and the child. Given the child’s age, the authorities considered that he was not mature enough to express his thoughts and opinions. There was thus no need to hear him in court.
The court acknowledged that since his birth the boy’s parents had taken care of him together and that consequently his permanent place of residence was the United Kingdom. Both of the parents had custody rights in respect of the boy. The Vilnius Regional Court also dismissed V.T.’s allegation that the applicant had agreed that the child would permanently settle in Lithuania. On the contrary, V.T. had no legal ground to decide upon the change of the child’s permanent place of residence on her own. Her refusal to return the child to the country of his birth after the holidays in summer 2008 could not be acknowledged as justified.
Nevertheless, the Vilnius Regional Court found that the child should stay in Lithuania. In setting out its reasons, the court held that before arriving in Lithuania the child had lived in London for some seven months; accordingly, he was not very accustomed to living in that environment. Moreover, his living conditions in the United Kingdom were worse than those in Lithuania. In particular, in London the boy and his parents lived in a small room, and a construction was going on near their place of residence. In contrast, in Lithuania the child stayed at the home of V.T.’s parents where, according to a child care representative, the boy felt “happy, spry, active, communicative and loved”. The court also observed that the boy’s mother had taken care of him all the time after the birth, that they were very close and that the boy had never been left with a nanny or another person. Accordingly, his separation from the mother and transfer to the father would not correspond to the child’s interests and would pose a risk that if the child were returned he would be placed in “an intolerable situation” within the meaning of Article 13b of the Hague Convention. For the court “the evidence was not provided that the applicant had the skills and knowledge as to how to take care of a small child”. It followed that the child could be returned to the United Kingdom only with the mother. On this last point the Vilnius Regional Court held:
“In the instant case there is no evidence that the applicant has behaved improperly in front of the child, or that he abuses alcohol, uses drugs or resorts to violence. The main circumstance in this case, proving the possibility of harm to the child’s interests when the child is returned to the country of his birth, is his separation from the mother, with whom he has a close connection and who has custody rights [like the applicant] but does not have the financial means to stay in the United Kingdom until the question of child’s custody would be resolved, and the applicant’s refusal to guarantee the child’s and his mother’s living conditions in the United Kingdom...
(...)
The applicant refused to create the conditions for V.T. to live in the United Kingdom but agreed only to buy a [plane] ticket. According to the case materials, the child’s mother did not [have real estate] in the United Kingdom, she did not work while taking care of the child, therefore it is obvious that she does not have income to rent accommodation, the benefits she receives she must use to satisfy the child’s needs because there is no evidence that the applicant provided the child with financial support permanently and regularly from June 2008 [when V.T. and the child arrived in Lithuania]. At the court hearing of 18 February 2008 the applicant indicated that before he left Lithuania in July 2008, when he had a conflict with the child’s mother, he left GBP 300 and LTL 2,000 on the table for the child’s mother, but there is no evidence to prove it. Therefore, so that the child could go and live in the United Kingdom with the mother, they need income which the mother does not have. The court takes into consideration that during the period of economic crisis it can be difficult for the child’s mother to live in the United Kingdom, to find a job and receive income. The English newspaper “The Daily Telegraph” printed a column “Recession”, in which the latest news is published and problems of unemployment, industry, GDP and inflation are analysed. In the article of 5 March 2009, “PriceWaterhouseCoopers” warned business to prepare for a five percent fall in GDP. The economists also wrote that in the United Kingdom “deep recession will last all year in 2009 and will go on to the beginning of 2010 as the consequence of the growing unemployment rate...” [Accordingly, the applicant’s request that the child be returned to the United Kingdom has to be denied because] the applicant [refuses] to guarantee having enough money to maintain the child’s mother or to guarantee good living conditions for her when she will come back with the child to the country of his birth”.
2. The proceedings regarding the child’s permanent place of residence and the parents’ contact rights
On 28 April 2010 the High Court of Justice of the United Kingdom ruled that the child should permanently reside in Lithuania with his mother. The option that V.T. came to the United Kingdom and took up a job there was not in the child’s interests, given that the child would be placed in a nursery and would have two parents who were emotionally apart. Moreover, V.T. did not wish to live in England, even if she was supported by the applicant. Having acknowledged that the father had a real and driving interest in his son, the court held that the “central underlying problem” thus related to the promotion and preservation of good relationship between the two of them.
On this last point the High Court of Justice considered that the correct place for their contact was to be England. The two main reasons were that the son would get to know the father in England and the father would be able to engage in contact “without the pressures that he would undoubtedly feel if it was to take place initially in Lithuania”. Furthermore, timing was clearly as soon as possible.
Accordingly, the child’s mother was to come to the United Kingdom and spend up to six weeks there, during which a regime of contact between the father and the child would take place. Afterwards the mother was free to return to Lithuania with the child and to live there permanently. The High Court of Justice also “wished to make it abundantly clear” to both parents that “albeit the issues relating to the welfare of children could change with circumstances, it was going to take a very significant change for there to be any re-visiting of the above described over-arching plan”.
After the child had permanently settled in Lithuania, the applicant would have a right to an ongoing contact: essentially, four times a year there would be seven to ten days’ staying contact between him and his son. The first two meetings would take place in the United Kingdom, upon the mother bringing the child there. That was contingent upon the father paying a sum to fund the trip, 600 pounds sterling (GPB) for each visit. Thereafter the father would have the choice as to where this contact was to take place and he could travel to Lithuania, pick up the child and communicate with him where he so wished.
The applicant took part in the court hearing. At the end thereof the judge informed the applicant that the judgment would be enforceable in Lithuania, subject to applications being made there in respect of the contact order.
On 18 June 2010 the High Court of Justice adopted an order, noting that although the applicant and V.T. were not on good terms with each other, neither of them was aggressive or hostile [towards the child]. The court acknowledged that on 28 April 2010 it had had to take a difficult decision when it ruled that the mother should have permission to take the child to live in Lithuania permanently. The risk, as the applicant portrayed it to be, existed that the applicant could be shut out [of the child’s life] by the mother’s family; however, in the meantime no significant or dramatic change of circumstances occurred which would necessitate amending the custody decision. On this point the High Court of Justice also expressed its confidence in the Lithuanian courts:
“An additional point is that it seems to me that it is not open to me to proceed on the basis that the Lithuanian courts will do anything other than deal with this matter pursuant to [child’s] welfare principle. They are subject to Brussels II revised. Albeit I understand that the father was unhappy with the conclusions reached in the Lithuanian court, to my mind I cannot accept his submission that even if the mother and her family demonstrate the hostility he asserts, the Lithuanian court will join in and will not seek to promote the underlying theme of my judgments, namely, that there should be a contact between this father and son”.
As concerns the arrangements for contact with the child, the High Court of Justice confirmed that the applicant had paid a deposit of GBP 3,000 to the solicitors of his son’s mother for the purpose of meeting the costs she would incur when complying with the court order to bring the child to the United Kingdom to the father for a visit.
The court order specified that V.T. was to make the boy available for staying contact in London for the six-week period starting from 19 June to 14 July 2010. As from 15 July 2010, she could take the child to reside with her permanently in Lithuania. Subsequently, the staying contacts were to be as follows: 1) 18 to 25 September 2010 and 11 to 18 December 2010 (in the jurisdiction of England and Wales), and 2) 19 to 28 March and 18 to 27 June 2011 (the applicant was to pick up his son at the Romanian Embassy in Vilnius but was free to choose any location worldwide to stay with his son, unaccompanied by V.T.). Lastly, the child’s mother was ordered to sign the relevant documents so that the child could obtain Romanian and Moldovan passports, necessary for travelling with his father.
3. Further developments as regards the applicant’s attempts to be in contact with his child
On 16 September 2010 the lawyer of V.T. wrote to the applicant that V.T. did not propose to bring their son to the United Kingdom so that the boy could see his father. V.T. believed that “it would be too stressful for the boy and that the child was not ready to spend a week away from the mother”. The applicant was also informed that jurisdiction [over contact arrangements] had now passed to the Lithuanian courts. The lawyer of V.T. also enclosed a cheque for GPB 600 “by way of reimbursement of the sum [the applicant] had paid in relation to V.T.’s travel and accommodation expenses”.
As it appears from the documents provided by the applicant, in early 2011 the mother of the child addressed the Utena District Court with a request that the child contact arrangements be changed, that she be awarded child support and child support debt from the applicant. Together with those claims an application for provisional measures was made, to suspend the execution of the order of the High Court of Justice of 18 June 2010.
On 26 January 2011 the Utena District Court sent the applicant a notification stating “on 17 March 2011 the Utena District Court will hear a case about non-execution of a court judgment, in which you are a person concerned. Your participation is not obligatory”. The applicant claims that he received the above notification almost a month later.
On 2 March 2011 the applicant wrote to the Utena District Court that the above notification disclosed no information about the subject matter of the forthcoming court hearing. He asked the court for more time to get legal aid to prepare for the hearing. The applicant also complained about the non‑enforcement of the High Court of Justice order, granting him rights to visit his son. In particular, he wrote that the Lithuanian bailiff, whom he had contacted with a request for enforcement, was stalling the matter and misleading him. The applicant expressed serious concerns about how the situation was evolving. To expedite the liaison the applicant asked the court to send him information via e-mail, apart from official channels. He also asked the court to acknowledge receipt of the letter.
By a letter of 9 March 2011 the applicant again expressed his concerns over the court proceedings in respect of his child. He submitted that even though he had deposited GPB 600 with V.T.’s solicitors, she had refused to bring their child to England for staying contact, in breach of the order of the High Court of Justice. The applicant reiterated his criticism of the Lithuanian bailiff. Lastly, he submitted that he could not attend the court hearing scheduled on 17 March 2011 due to financial considerations and work commitments.
In the meantime, by a decision of 1 March 2011 the Utena District Court partly granted the request by V.T. for provisional measures. The applicant was not present at the hearing. The child’s mother was present, as was a representative of the Utena region child care authorities, who agreed with the mother’s request that the child should be prohibited from leaving Lithuanian territory.
The Utena District Court noted a conflict between the applicant and V.T. over the child’s contact arrangements. Without giving any further details the court also held:
“The documents submitted prove that the [applicant] was going to take the son away from the United Kingdom and prepared for him other personal documents for that purpose; therefore during his contacts with the child the personal documents of the child were taken from him and he was prohibited from taking the child away from the jurisdiction of England and Wales. Taking this into account, there is a real threat that the execution of the [Lithuanian] court decision may become more complicated (if it would become necessary to apply to a national court of a foreign State with the application for acknowledgment and permission to execute the Lithuanian court decision if such would be made in favour of V.T., or even impossible if, for example, the applicant would conceal the child’s whereabouts or change them periodically. The risk that the execution of the court decision may become more complicated or even impossible is a basis to order provisional remedies (...) It was also assessed that the child’s domicile is in Lithuania, he attends a kindergarten, therefore sudden change in the environment may have a negative impact on a child”).
The Utena District Court nevertheless acknowledged that a child whose parents were separated had a right to have constant and direct contact with both parents irrespective of their residence. Accordingly, and “to avoid alienation of the child and his father”, the District Court ruled that the applicant could see his son every day from 4 p.m. to 6 p.m. in the premises of the Utena region child care authorities and in the presence of their representative. For the court, “the exact and limited time should be determined for contact because the child was very little, he needed to have a rest in the daytime (afternoon sleep)”. The applicant had to give two days’ notice about his wish to have contact with his son to V.T. and the child care authorities. V.T. had to make the child available for the contact and to inform the applicant should the child not be able to attend the meeting due to illness.
This provisional remedy was to be applied until the Lithuanian courts decided on V.T.’s action for contact arrangements. The applicant submits that on 29 April 2011 the solicitor appointed to assist him informed him over the telephone that “Lithuania had cut off legal aid and did not want to spend money on the applicant”. He adds that he has received no further answers from that lawyer.
By a letter of 31 December 2010, the Lithuanian bailiff lodged a complaint with the Utena District Court, submitting that in December 2010 V.T. had not brought the child to the United Kingdom for a staying contact with his father.
On 27 April 2011 the Utena District Court dismissed the bailiff’s complaint. On the basis of explanations by V.T., the bailiff and the applicant’s lawyer, appointed under the legal aid scheme, the court found that the applicant had not paid GPB 600, so that V.T. could come to England with the child. It also referred to the Utena court order of 1 March 2011 to apply an interim measure and to forbid the applicant from taking his son out of Lithuania.
B. Relevant domestic law and practice
The Civil Code of the Republic of Lithuania provides that the father or the mother who lives separately from the child has a right to have contact with the child and be involved in the child’s education. A child whose parents are separated has a right to have constant and direct contact with both the parents irrespective of their residence. The father or the mother with whom the child resides may not interfere with the other parent’s contacts with the child (Article 3.170).
The Code of Civil Procedure stipulates that the Court of Appeal decides the matters whether a foreign court’s judgment may be recognised in Lithuania (Article 774). The Code also provides that the civil proceedings may be reopened if new circumstances come light that were not known during the initial set of proceedings (Article 366 § 2).
C. Relevant international law
The Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (Brussels II), reads as follows:
Article 8
General jurisdiction
“1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seized...”
Article 21
Recognition of a judgment
“1. A judgment given in a Member State shall be recognized in the other Member States without any special procedure being required...
4. Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.”
Article 23
Grounds of non-recognition for judgments relating to parental responsibility
“A judgment relating to parental responsibility shall not be recognized:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child...
(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought...”
Article 26
Non-review as to substance
“Under no circumstances may a judgment be reviewed as to its substance.”
Article 28
Enforceable judgments
“1. A judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there...”
Article 31
Decision of the court
“1. The court applied to shall give its decision without delay. Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application.
2. The application may be refused only for one of the reasons specified in Article ... 24.
3. Under no circumstances may a judgment be reviewed as to its substance.”
COMPLAINTS
Under Article 8 of the Convention the applicant complains that the Lithuanian authorities do not enforce the High Court of Justice order of 18 June 2010 granting him a right to have a staying contact with his son. In this connection he also refers to the European Union Council Regulation No. 2201/2003, which provides that under no circumstances may a judgment given in one jurisdiction be reviewed as to its substance. The applicant argues that this is exactly what is happening in his case, given that the Utena District Court is trying to reverse the High Court of Justice judgment and order. Arguing that he has had no contact with his son since July 2010, the applicant submits that the passing of time could have irremediable consequences between the parent and the child with whom the child does not live. Despite the applicant’s numerous requests in writing and over the telephone to be informed about the enforcement proceedings, requesting information in writing, providing evidence to the Lithuanian authorities, he had been ignored all the time.
QUESTIONS TO THE PARTIES
1. Have the judgment of 28 April and the order of 18 June 2010 of the High Court of Justice been recognised in Lithuania? Are they directly enforceable in Lithuania?
2. Has there been a violation of Article 8 of the Convention as concerns the applicant’s right to be in contact with his son (see Lafargue v. Romania, no. 37284/02, §§ 82-88, 13 July 2006), in particular taking into account the fact that despite the High Court of Justice judgment of 28 April and order of 18 June 2010 the applicant’s son has not been taken to the United Kingdom for a staying contact?
Has the applicant initiated any proceedings in respect of the bailiff in connection with her actions/inaction when enforcing the above judgment and order in Lithuania?
3. Have the new court proceedings in Lithuania, as regards the applicant’s contact arrangements with his son, and the Utena District Court’s decision of 1 March 2011, granting a provisional measure prohibiting the child leaving Lithuania, been necessary and compatible with the Lithuanian public policy and with the applicant’s rights under Article 8 of the Convention?
4. The parties are requested to provide information whether the applicant had been able to visit and/or had visited his son in Lithuania after 1 March 2011, when the Utena District Court permitted him to have two hour long daily contacts with his child within the premises of the Utena child care authorities and in their presence.
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