Information Note on the Court’s case-law 188

August-September 2015

M. and M. v. Croatia - 10161/13

Judgment 3.9.2015 [Section I]

Article 8

Article 8-1

Respect for family life

Respect for private life

Failure to hear child’s views during protracted custody proceedings: violation

Article 3

Effective investigation

Failure to promptly investigate allegations of domestic violence against a minor: violation

Facts – In the Convention proceedings a mother (the second applicant) and her daughter born in 2001 (the first applicant) complained that the domestic authorities had failed to take steps to protect the first applicant from physical and psychological ill-treatment t o which she had been subjected by her father. The father had had custody of the first applicant since 2007, when he and the second applicant had divorced. While in his custody the first applicant was allegedly subjected to frequent episodes of verbal abuse and threats of physical violence by the father. This culminated in an incident of 1 February 2011 when he allegedly hit her in the face and squeezed her throat while verbally abusing her. The following day the applicants reported the matter to the police and informed them of previous instances of verbal and physical abuse. Criminal proceedings were subsequently instituted against the father, but they were still pending at first instance at the time of the European Court’s consideration of the case, more th an four and a half years after they were initiated.

In parallel, the second applicant instituted civil proceedings against the father seeking custody of the first applicant. Her application for temporary custody was rejected in June 2011 after the domestic court found in reliance on the opinions of forensic experts and social workers that the first applicant was not under threat of further ill-treatment in her father’s home. The main custody proceedings were still pending at the date of the European Court’s judgment. The first applicant, who had expressed a strong wish to live with her mother and had started experiencing behavioural problems including self-injuring, continued to live with her father against her wishes.

Law

Article 3: In view of the applicant’s young age, the acts of domestic violence she had allegedly been exposed to at the hands of her father could be regarded as degrading treatment within the meaning of Article 3. The applicants reported the event of 1 February 2011 to the police authorities the next day and the first applicant’s alleged inj uries were medically documented. That evidence was in the Court’s view sufficient to render the applicants’ complaint before the domestic authorities arguable and consequently to trigger both the State’s procedural obligation to investigate her allegations and its positive obligation to protect her from further violence.

(a) Procedural obligations – As regards the need obligation to investigate, the domestic authorities decided to prosecute only what appeared to be the most serious in a series of violent a cts against the first applicant rather than charging her father with one or more offences capable of covering all the instances of alleged ill-treatment, which would have enabled the authorities to address the situation in its entirety. Moreover, the crimi nal proceedings against the father had lasted for almost four and a half years by the time of the Court’s judgment, with substantial delays attributable to the domestic authorities. As a result, the investigation had not fulfilled the requirements of promp tness and reasonable expedition inherent in the notion of effectiveness.

Conclusion : violation (five votes to two).

(b) Obligation to protect – The applicants further complained that after the incident of 1 February 2011 the domestic authorities left the first applicant in her father’s custody thereby violating their positive obligation to prevent the recurrence of domestic violence against her . However, the Court found that during the period in question the national authorities had taken reasonable steps to assess and weigh the risk of possible further ill-treatment. Notably, the first applicant’s situation had been closely monitored by the soc ial authorities through child protection measures which were in place between September 2011 and March 2014. Furthermore, both the recommendation by the local social welfare centre and the combined opinion of the forensic experts had found that the first a pplicant was not at risk of ill-treatment in her father’s home. The court decision in June 2011 to refuse the mother temporary custody of her daughter was based on the relevant social welfare centre’s recommendation and other evidence and on the fact that the criminal proceedings against the father were still pending. It had thus been taken after careful consideration of all relevant materials.

Conclusion : no violation (unanimously).

Given the above finding under Article 3 as regards the first applicant, th e Court further held that there had been no violation of Article 8 in respect of the second applicant and the State’s duty to protect her daughter from ill-treatment.

Article 8: The Court considered that the applicants’ complaints that the domestic authori ties had ignored the first applicant’s wish to live with her mother and that she had not been heard in the custody proceedings raised issues regarding their right to respect for private and family life distinct from those analysed in the context of Article 3 and thus required separate examination.

By itself the fact that the custody proceedings had thus far lasted for over four years and three months sufficed to conclude that the respondent State had failed to discharge its positive obligations under Articl e 8 of the Convention. In addition, even greater diligence had been called for in the present case because it concerned a traumatised child who, if for no other reason than her parents’ conflictual relationship, had suffered great mental anguish which had culminated in self-injuring behaviour.

However, it would appear that the domestic courts failed to recognise the seriousness and urgency of the situation and that the protracted character of the proceedings only served to exacerbate the first applicant’s p light. The Court was particularly struck by the fact that after four years and three months the first applicant had not yet been heard in the proceedings and had thus not been given a chance to express her views regarding with which parent she wanted to li ve. Bearing in mind Article 12 of the Convention on the Rights of the Child , in any judicial or administrative proceedings affecting children’s rights under Article 8 of the Europe an Convention it could not be said that children capable of forming their own views were sufficiently involved in the decision-making process if they were not provided with the opportunity to be heard and thus to express their views. It would be difficult to argue that, given the first applicant’s age and maturity, she was not capable of forming her own views and expressing them freely.

In the present case the forensic experts had established firstly that both parents were equally (un)fit to take care of th e first applicant and, secondly, that she wanted to live with her mother. Both parents lived in the same town and the reversal of the custody order would not therefore have entailed her having to change school or otherwise being removed from her habitual s ocial environment. Accordingly, not respecting the first applicant’s wishes as regards which parent she wished to live with had, in the specific circumstances of the case, breached her right to respect for private and family life. In addition, the protract ed character of the custody proceedings had also violated the second applicant’s Article 8 rights.

Conclusion : violations (unanimously).

Article 41: EUR 19,500 to the first applicant and EUR 2,500 to the second applicant in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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