Communicated on 29 May 2018
FOURTH SECTION
Application no. 21243/17
Dalius ŠIRVINSKAS
against Lithuania
lodged on 8 March 2017
STATEMENT OF FACTS
The applicant, Mr Dalius Širvinskas, is a Lithuanian national, who was born in 1981 and lives in Karmėlava. He is represented before the Court by Mr A. Gruodis, a lawyer practising in Kaunas.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In June 2010 the applicant married I. In September 2010 their daughter P. was born. Until 9 November 2013, they lived in the applicant’s parents’ house in Karmėlava.
On 9 November 2013 I. moved out, taking P. with her. According to the applicant, he and his wife disagreed on whether their daughter should go with I. or stay with the applicant. The police were called and they ordered the applicant to allow his wife to take their daughter with her. The applicant obeyed. He and I. agreed that, until they reached a permanent decision, P. would live with each of them in turn. However, on 20 December 2013, when the applicant wished to take P. from I.’s apartment, I. refused. She also refused to allow the applicant to see their daughter or to speak with her. The applicant repeatedly contacted I., asking to be allowed to see the girl, and addressed local child protection authorities, but without results.
1. Determining the child’s temporary place of residence
On 2 January 2014 I. filed a claim for divorce before the Kaišiadorys District Court. She asked the court to determine the child’s place of residence as being with her, to set a schedule of the applicant’s contact with the child, and to order him to pay maintenance. She also asked the court to apply interim measures and to determine P.’s temporary place of residence as being with her until the final decision was adopted.
On the same day the applicant lodged a claim before the Kaišiadorys District Court asking to determine P.’s place of residence as being with him. He submitted that I. did not allow him to see their daughter, even though the girl had expressed the wish to see him and to live with him. He alleged that I. had often shouted at P. and had sometimes beaten her, whereas the applicant had never harmed the child in any way. He also submitted that ever since her birth P. had lived in the applicant’s parents’ house and was used to it, and she was attached to her grandparents who lived there as well. He contended that the house was better suited to the child’s needs and was closer to her kindergarten than I.’s new apartment. The applicant further submitted that his work schedule allowed him to spend sufficient time with the child, contrary to I.’s. He lastly submitted that I. had another child from a previous marriage who did not live with her but was being cared for by I.’s mother, which indicated that she might do the same with P. The applicant therefore argued that the girl should live with him. In the event that the court refused that request, the applicant asked it to set a schedule of his contact with his daughter. He also asked the court to apply interim measures and to determine P.’s temporary place of residence as being with him until the final decision was adopted.
On 6 January 2014 the Kaišiadorys District Court in written proceedings adopted two separate decisions on the applicant’s and his wife’s requests for interim measures. The decision concerning the applicant’s wife’s request stated that the request had been examined without notifying the applicant.
The court refused the applicant’s request for interim measures. It stated that, in accordance with domestic law, an interim measure such as determining a child’s place of residence had to be applied when there were sufficient grounds to believe that without it the child’s rights or interests would be threatened. It also underlined that changing a child’s habitual place of residence might cause him or her social and psychological harm. The court considered the applicant’s allegation that I. had beaten their daughter to be unfounded. It further held that there were no grounds to find that P.’s residence with I. was in any way harmful to the girl’s rights and interests. It observed that P.’s residence with her mother did not limit the applicant’s right to see his daughter and to take part in her upbringing. The court noted that in December 2013 the applicant had complained to a local child protection authority that he was unable to see his daughter, but that complaint had not been dealt with at that time, so it was not possible to conclude whether it was founded. The court thus also refused the applicant’s request to set a schedule of his contact with his daughter.
However, the court allowed I.’s request for interim measures. The court held that changing the girl’s habitual place of residence and “disrupting her emotional bond with her mother with whom [she] had lived since birth” was likely to cause her emotional distress and social and psychological harm. The court thus determined P.’s temporary place of residence as being with I. The applicant was given the right to see his daughter every other weekend, from Saturday morning until Sunday evening, and ordered to pay maintenance of 400 Lithuanian litai (LTL, approximately 116 euros (EUR)) per month.
The applicant lodged a complaint against those decisions. He argued that the Kaišiadorys District Court had incorrectly determined that his daughter’s habitual place of residence was with I. The applicant submitted that P. had lived in his parents’ house since birth and, by taking her away, I. had changed her habitual place of residence without the consent of the other parent (the applicant). He submitted that such unilateral actions had amounted to abuse of parental rights and that the Kaišiadorys District Court had legitimised that abuse. The applicant further argued that his daughter, since birth, had lived not only with her mother but also with her father (the applicant) and that disrupting her emotional bond with either of the parents would cause her equal distress, so I. should not have been treated more favourably just because she was the child’s mother. The applicant also reiterated the arguments of his initial claim why P. should live with him. He lastly asked the court to amend the schedule of his contact with P. and to allow him to see her every weekend.
In her reply to the applicant’s complaint, I. submitted that, when she moved out of their house, the applicant had agreed that she would take their daughter with her and that there had never been any agreement that P.’s place of residence would change regularly, as such instability would have been detrimental to the child. I. also denied that she had prevented the applicant from seeing their daughter. While she acknowledged that the applicant’s parents’ house had been P.’s habitual place of residence since birth, I. argued that P. was more attached to her mother than to the house, that she had quickly adapted to the new apartment and was attending a kindergarten nearby. I. also argued that the applicant’s bond with the child had been weak, largely because he had a problem with alcohol abuse and had been violent. She further submitted that the living conditions in her apartment were suitable for the child, she had regular income and her work schedule allowed her to take proper care of P.
On 1 April 2014 the Kaunas Regional Court, in written proceedings, partly allowed the applicant’s complaint. It dismissed the part concerning P.’s temporary place of residence. The court stated that the applicant had not proved that P.’s residence with I. was contrary to the child’s interests. It underlined that at that stage of the proceedings it was determining only the child’s temporary place of residence, whereas her permanent place of residence would be determined when examining the merits of the divorce claim and only at that stage would it be decided to which parent the child was more attached or which place of residence was more suited to her needs. However, the court extended the applicant’s contact rights, giving him the right to see P. every other weekend, from Friday evening until Sunday evening.
2. Determining the child’s permanent place of residence
On 18 November 2015 the Kaišiadorys District Court, in an oral hearing, adopted the decision in the divorce case. The court observed that the applicant and his wife had both accused each other of alcohol abuse, physical violence and abandonment of the family, but on the basis of the available information it considered that both of them had been equally responsible for the dissolution of the marriage.
When determining P.’s place of residence, the court observed that she had lived with I. since 9 November 2013 and was attending a kindergarten nearby; local child protection authorities had inspected I.’s apartment and had found it to be suitable for the child, and there was no indication that living with I. was harmful to P. in any way. The court also referred to the findings of court-appointed psychologists who had examined P. on multiple occasions and had found that she was equally attached to both parents but was too young to express an independent opinion as to which of them she preferred to live with. The psychologists had also found that the girl had adapted to the new place of residence with her mother and to the kindergarten she was attending, and it was not advisable to change it again, as stability was very important for a child of that age. Taking those findings into account, the court held that it was “especially important” that for two years the child had been living with I. and underlined that changing her place of residence might cause her social and psychological harm. It stated that even though both parents were capable of ensuring proper conditions for P.’s development and upbringing, there were “no imperative and imminent reasons” (nėra būtino ir neišvengiamo pagrindo) for changing her present place of residence. The child’s permanent place of residence was therefore determined as being with I.
The court underlined that the parent with whom the child lived had no right to interfere with the other parent’s right to see the child and to participate in her upbringing. It held that the applicant had the right to see his daughter every other weekend, from Saturday morning until Sunday evening. He was also ordered to pay maintenance of EUR 200 per month.
In the same decision the court divided the applicant’s and I.’s marital property and debts to their creditors.
The applicant lodged an appeal against that decision. He argued that the court had incorrectly found that I.’s apartment had become P.’s habitual place of residence which should not have been changed. He submitted that his parents’ house, in which P. had lived since birth, had remained her habitual place of residence and that she had been removed from that house only because of I.’s unilateral actions, which had constituted abuse of parental rights. He contended that the first-instance court had decided to determine P.’s place of residence as being with I. essentially on the grounds that P. had already been living with I., the fact which had resulted from an earlier decision on interim measures, which meant that the interim measures had in fact become permanent. The applicant also submitted that the court had not addressed any of his arguments why the girl should live with him. He argued that the findings of the psychologists and witness testimonies had shown that P. had felt stronger attachment to him than to I. and that she wanted to live with him. He further submitted that the court had not taken into account the circumstances describing I.’s personality, such as her refusal to let the applicant see the child and the fact that her daughter from a previous marriage did not live with I.
The applicant also asked to extend his contact rights and to allow him to speak to his daughter on the phone every day, to allow him to visit her in the kindergarten and later at school, and to spend part of his summer holidays with her. He also asked to reduce the amount of maintenance to EUR 150 per month.
On 8 September 2016 the Kaunas Regional Court partly amended the first-instance court’s decision. It upheld the findings concerning the girl’s place of residence in their entirety and stated that the applicant had not provided any evidence that “changing his daughter’s habitual place of residence would be in her interests”. However, the court extended the applicant’s contact rights and held that he had the right to see his daughter every other weekend, from Friday evening until Sunday evening, to see her during certain public holidays and to spend part of his summer holidays with her.
The applicant lodged an appeal on points of law in which he reiterated the arguments concerning the child’s place of residence that he had raised in his previous claims and appeals. In addition, he complained about the absence of an oral hearing before the court which had decided on interim measures. The applicant submitted that his daughter’s temporary place of residence, determined in the proceedings on interim measures, had been decisive when subsequently determining her permanent place of residence ‑ P.’s permanent place of residence had been determined as being with I. essentially on the grounds that P. had already been living with I. The applicant therefore argued that it had been essential for him to be heard in person when deciding on the interim measures. He also complained that he had been discriminated against on the grounds of his gender and that I. had been treated more favourably by courts simply because she was the girl’s mother. The applicant submitted that both he and I. had been found capable of ensuring suitable living conditions for their daughter, however, the courts had presumed that the child should reside with I. and had placed the burden on the applicant to prove otherwise.
On 13 December 2016 the Supreme Court refused to accept the applicant’s appeal on points of law for examination as raising no important legal issues.
B. Relevant domestic law and practice
1. Constitutional and statutory provisions
Article 38 of the Constitution provides, in relevant parts:
“The family shall be the basis of society and the State.
Family, motherhood, fatherhood, and childhood shall be under the protection and care of the State.
...
In the family, the rights of spouses shall be equal.
The right and duty of parents shall be to bring up their children to be honest people and faithful citizens, and to support them until they reach the age of majority.
...”
Article 3.156 of the Civil Code provides that both parents have equal rights and obligations vis-à-vis their children. That rule applies irrespective of whether a child’s place of residence has been determined by a court as being with one of the parents.
Article 3.174 § 2 of the Civil Code provides that a dispute concerning a child’s place of residence must be decided in accordance with the child’s best interests and taking into account the child’s wishes, unless those wishes are contrary to his or her best interests. Article 3.174 § 4 provides that when the circumstances change or when the parent with whom the child’s place of residence has been determined gives the child away to other persons, the other parent may ask the court to determine the child’s place of residence afresh.
Article 3.170 §§ 1 and 4 of the Civil Code provides that the parent who does not live together with the child has the right to see the child and take part in his or her upbringing, and the other parent must not interfere with that right.
Article 3.65 of the Civil Code provides that the court examining a divorce case may apply interim measures in the best interests of the spouses or their minor children. One of the measures listed in that provision is determining children’s place of residence with one of the parents.
Article 147 § 1 of the Code of Civil Procedure provides that decisions on interim measures are taken in written proceedings.
Article 378 of the Code of Civil Procedure provides that decisions in family cases cannot be taken in the parties’ absence.
2. Domestic courts’ case-law
In its ruling of 19 February 2014 in a civil case no. 3K-3-138/2014, the Supreme Court, relying on its previous case-law, held:
“Article 3.156 § 2 of the Civil Code provides that parents have equal rights and obligations vis-à-vis their children, irrespective of whether the child was born inside or outside of marriage, or after a divorce, or annulment of a marriage, or a separation. That means that even if the parents are not married or do not live together, they must agree on the exercise of the parental authority and are equally responsible for the upbringing of the child and ensuring proper conditions for his or her development. All questions concerning children’s upbringing are decided by the agreement of both parents. Only when the parents are unable to reach an agreement will the disputed question be decided by court (Article 3.165 § 3 of the Civil Code). One of the questions on which the court is competent to decide is the child’s place of residence when parents live separately and do not agree with which one of them the minor child should live (Article 3.169 § 2 of the Civil Code). When determining the child’s place of residence, the court must base its decision on the child’s best interests and take regard of his or her wishes (Article 3.174 § 2 of the Civil Code). The interests of the child are the main criterion in the court’s determination of the child’s place of residence. It is based on the principle of the priority of the child’s rights and interests, established in national and international legal instruments (Article 3 § 1 of the UN Convention on the Rights of the Child, Article 3.3 § 1 of the Civil Code, Article 4 § 1 of the Law on the Protection of the Rights of the Child), which means that in all actions concerning children, their best interests must be a primary consideration ...
The chamber underlines that the court, when determining a child’s place of residence, must assess, among other circumstances, the efforts and capacity of each of the parents to ensure the fulfilment of the child’s fundamental rights and obligations guaranteed by law, [as well as] the family environment of each parent. When assessing the family environment, the court must examine the child’s relationship with each of the parents, their moral and other personal characteristics, their approach to the child’s upbringing and development, participation in the child’s maintenance and care before the dispute arose, the capacity to ensure suitable conditions for [the child’s] life, upbringing and development (taking into account the nature of the parents’ work, their work schedule, [and their] financial situation), among other circumstances ... The child’s interests must be identified individually in each case ... They are first and foremost determined by the [need to ensure the] development of the child as a healthy, moral, strong and intellectual person, his or her need to have a secure (both physically and socially) personal environment in which he or she could spend time, engage in his or her activities, play, develop his or her capabilities, be protected from the daily worries of adults, etc. ...
The Supreme Court has established in its case-law that when determining a child’s place of residence superior material conditions of one of the parents cannot be decisive when the other parent can also provide adequate conditions. What matters is whether the child would be able to grow and develop appropriately under the material conditions provided by the other parent as well.”
In its ruling of 26 April 2013 in a civil case no. 3K-3-269/2013, the Supreme Court, relying on its previous case-law, held:
“A court’s decision determining a child’s place of residence [with one of the parents] does not become res judicata ... Article 3.169 § 3 of the Civil Code provides that, upon the change of relevant circumstances ..., the other parent may lodge a new request to determine the child’s place of residence afresh.
The Supreme Court in its case-law concerning the interpretation and application of the aforementioned provision has held that when a request to determine the child’s place of residence afresh is lodged, the parent who has lodged it must prove that there has been a material change of circumstances which previously determined the child’s place of residence [with the other parent] ... The Supreme Court’s case-law does not specifically define what change of circumstances can be regarded as material, that is to say giving sufficient grounds to consider changing the child’s place of residence, but some examples have been given, such as: a change of the parent’s with whom the child lives behaviour or financial situation, deterioration of the child’s upbringing, an improvement of the other parent’s financial situation, ... a change of the child’s wishes (taking into account the child’s age and maturity), ... and other circumstances which have to be assessed in each individual case. It is emphasised that when it is requested to determine the child’s place of residence with the parent with whom the child did not live until the lodging of that request, it must be established that the current place of residence has become unsafe to the child and no longer meets the requirements of his or her normal and healthy development, and that changing the child’s place of residence and determining it as being with the other parent would create [an appropriate] environment ... The stability of the child’s living environment is important for the child’s psychological state, thus, when the child has lived in a certain environment for more than a year, the possibility of changing it must be considered with particular care ...
It must be noted that when deciding whether the present living environment fulfils the child’s needs and [provides him or her with the] opportunity to grow and develop in a healthy manner, it is essential to also consider the general criteria for determining a child’s place of residence with one of the parents ... It must be noted that a court’s decision cannot be determined by the parents’ gender, i.e. when deciding with which parent the child should live, the court cannot give privileges to the father or the mother.”
In its ruling of 18 January 2013 in a civil case no. 3K-3-153/2013, the Supreme Court, relying on its previous case-law, held:
“When deciding whether to change a child’s place of residence ..., the court must assess the environment in which the child is living at the time of the adoption of the court’s decision, its suitability for the child’s development, and to determine whether the change of that environment is necessary in the child’s interests. Changing the living environment can cause the child emotional distress and certain social [or] psychological harm. International and national legal instruments guarantee the protection of a child’s family environment and, without a pressing need and clear and sufficient grounds, do not provide for changing that environment. The need to ensure a stable environment for a child is reflected in the European Court of Human Rights case-law under Article 8 (the right to respect for private and family life) (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, ECHR 2010, and Hokkanen v. Finland, no. 19823/92, 23 September 1994). The case-law of the Lithuanian courts is also aimed at ensuring for a child a stable life in environment suitable for his or her needs. The change of such an environment must be justified and necessary, i.e. it has to be established that the current living environment has become unsafe and no longer meets the requirements of the child’s normal and healthy development, and that changing the child’s place of residence and determining it as being with the other parent would create [an appropriate] environment ...”
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that the domestic courts decided on his daughter’s temporary place of residence in written proceedings, without notifying him and without hearing him in person. He submits that the decision on the girl’s temporary place of residence was decisive because at later stages of the proceedings the courts only examined if there were grounds to change it and, as a result, the temporary place of residence became permanent. He submits that the courts did not address his arguments why his daughter should live with him. He also submits that the length of the divorce proceedings ‑ two years ‑ was excessive in the particular circumstances because during that time the girl lived with his ex‑wife and that in fact determined her permanent place of residence. The applicant submits that the courts should have decided on the child’s place of residence separately from the other questions, such as the division of marital property, in order to speed up the proceedings.
The applicant also complains under Article 14 of the Convention that he was discriminated against on the grounds of his gender. He submits that the courts treated his ex‑wife more favourably because she was the girl’s mother. He submits that the courts presumed that the child should live with her mother and placed the burden on the applicant to prove otherwise, whereas his ex‑wife was not required to prove why their daughter should not live with the applicant.
QUESTIONS TO THE PARTIES
1. Were the proceedings concerning the applicant’s daughter’s place of residence in line with the requirements of Article 6 § 1 of the Convention and Article 8 of the Convention, in particular in view of the following:
(a) the fact that the decision on the child’s temporary place of residence was decided in written proceedings and without notifying the applicant (see Z.J. v. Lithuania, no. 60092/12, § 100, 29 April 2014, and the cases cited therein);
(b) the reasons provided by the domestic courts for determining the child’s permanent place of residence as being with the applicant’s ex‑wife and the manner in which the courts addressed the applicant’s arguments as to why the child should live with him (see Sahin v. Germany [GC], no. 30943/96, §§ 64-66, ECHR 2003‑VIII, and Sylvester v. Austria, nos. 36812/97 and 40104/98, § 69, 24 April 2003);
(c) the overall length of the custody proceedings (see V.A.M. v. Serbia, no. 39177/05, § 146, 13 March 2007, and Z. v. Slovenia, no. 43155/05, § 142, 30 November 2010)?
2. Has the applicant suffered discrimination in the enjoyment of his Convention rights on the grounds of his gender, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention (see Konstantin Markin v. Russia [GC], no. 30078/06, §§ 124‑27, ECHR 2012 (extracts), and the cases cited therein)?
Full & Egal Universal Law Academy