Published on 3 May 2021

SECOND SECTION

Application no. 31560/20 D.K. and R.K. against Lithuania lodged on 17 July 2020 communicated on 15 April 2021

STATEMENT OF FACTS

The first applicant, Mr D.K., was born in 1979, the second applicant, Ms R.K, was born on unknown date. They are husband and wife, Lithuanian nationals, who live in Villingen Schwenningen , Germany. The President granted the applicants ’ request for their identity not to be disclosed to the public (Rule 47 § 4). The applicants are represented before the Court by Mr V. Vilkas , a lawyer practising in Vilnius.

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

In 2013 the applicants, who lived in Germany, contacted Lithuanian childcare authorities, seeking to adopt. Before adopting, the applicants indicated that they were not prepared to adopt children with disabilities. The childcare authorities proposed them to adopt two children, E.K., born in 2008, and M.K., born in 2009, who as of 2010 lived in a foster home in Lithuania. According to the documents provided to the applicants by the Lithuanian authorities, which included medical documents, prior to their adoption M.K. and E.K. had no health-related concerns. By the Vilnius Regional Court ’ s decision of 22 October 2015, the children were adopted.

After the family returned to Germany, the children developed numerous physical and psychological conditions. Within a period of three years they changed three primary schools. Upon the German authorities ’ recommendation, E.K. and M.K. were tested for genetic diseases; the applicants also took the children to a psychiatrist. Eventually, the doctors in Germany concluded that the children suffered from reactive attachment disorder, posttraumatic stress disorder and attention deficit hyperactivity disorder. Apart from that, E.K. and M.K. also suffered from fetal alcohol syndrome. The authorities in Germany decided that, for their development and social integration, the children needed constant care in a specialised institution.

On 10 July 2019 a court in Germany partly restricted the applicants ’ parental rights. The children were placed in a care institution in Germany, where they are to remain until they turn eighteen years old. The applicants are permitted to call their adopted children once a week and visit them once a month, on condition that they communicate with the children only in German, with the German childcare officials being present.

On 17 July 2019 the applicants asked the Lithuanian courts to re-open the adoption proceedings based on newly discovered circumstances, which could not have been known to the applicants at the time of adoption. They sought to revoke the 2015 court decision for adoption. The applicants also asked that expert examination be performed in order to ascertain whether E.K. ’ s and M.K. ’ s ailments, including fetal alcohol syndrome, could have been identified by the Lithuanian authorities before the adoption.

On 5 September 2019 the Vilnius Regional Court rejected the applicants ’ application, holding that adoption proceedings could be reopened only due to essential breach of legal norms. On the evidence, the court considered that the health ailments of the children were not newly discovered, but newly materialised circumstances. In that court ’ s view, those circumstances had not existed at the time of adoption. The first instance court also considered that there was no proof in the case that information regarding health status and social origin of M.K. and E.K. would have been made unavailable to the applicants at the time of adoption.

On 21 November 2019 the Court of Appeal upheld that decision. The appellate court did not grant the applicants ’ request for a comprehensive medical and psychiatric examination of the children, holding that at this stage of court proceedings – regarding the reopening of the adoption case – such expert report was unnecessary. The appellate court also held that since the health ailments of the children had been diagnosed only after adoption, it was obvious that those ailments did not exist at the time of the adoption. Even if Lithuanian law did not prohibit reopening in adoption cases, in the case at hand reopening would not be in the best interests of the children, whose right to family life had to be respected. The information that biological mother of E.K. and M.K. had abused alcohol and failed to take care of the children had been known to the applicants. The Lithuanian childcare institutions had no information that she had been consuming alcohol during pregnancy; therefore they could not foresee that the children would have health problems in future. The Court of Appeal lastly held that the applicants had been aware of certain behavioural problems and health related issues of E.K. and M.K. sometime before 4 June 2019, when a German psychiatrist diagnosed the children with the fetal alcohol syndrome and other conditions, and therefore missed the three month time-limit to request the reopening of court proceedings regarding adoption.

By a final ruling of 1 April 2020 the Supreme Court left the Vilnius Regional Court ’ s decision of 5 September 2019 unchanged. The Supreme Court held that the applicants ’ request for comprehensive expert report in order to establish whether the children ’ s health ailments had been born into or acquired in early childhood had no legal significance to the result of the case at hand. From that it followed that the applicants ’ complaint about breach of their rights under Article 6 § 1 of the Convention was baseless. Similarly, the applicants ’ complaint about breach of their right to respect for their family life, under Article 8 of the Convention, was also unfounded. In the Supreme Court ’ s view, if the Lithuanian child care authorities had been or should have been aware of the health condition of E.K. and M.K., the applicants could defend their potentially breached rights by bringing proceedings for those authorities ’ civil liability, but not by reopening the adoption proceedings.

COMPLAINTS

Under Article 6 § 1 of the Convention the applicants complain that the Lithuanian courts had made a manifest error in applying certain norms of Lithuanian family law on adoption. They are also dissatisfied that the Supreme Court had rejected their request for the re-opening of the adoption proceedings, whilst at the same time holding that new proceedings for damages could be possible. In the applicants ’ view, such reasoning of the Supreme Court was arbitrary and unfair.

Under Article 8 of the Convention the applicants complain that the Lithuanian childcare authorities had failed to discharge their positive obligations by having neglected to gather and reveal all possible information regarding E.K. ’ s and M.K. ’ s health, before their adoption. The applicants rely on the German doctors ’ findings that E.K. and M.K. suffer from ailments which had been sustained during their mother ’ s pregnancy and in their early childhood. The applicants state that after the adoption they had established, de jure and de facto , family bond with the children. However, due to health condition E.K. ’ s and E.M. ’ s, who need to reside and receive constant care in a specialised institution, the applicants are unable to live with the children.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants ’ right to respect for their family life, within the meaning of Article 8 § 1 of the Convention (see Pini and Others v. Romania , nos. 78028/01 and 78030/01, §§ 137-48, ECHR 2004 ‑ V (extracts); Ageyevy v. Russia , no. 7075/10, § 119, 18 April 2013 ; and ZaieÅ£ v. Romania , no. 44958/05, §§ 34 and 35, 24 March 2015)?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention ?

Have the Lithuanian authorities, including the childcare authorities and the courts, discharged their positive obligation to protect the applicants ’ right to respect for their family life (see, mutatis mutandis , Giorgioni v. Italy , no. 43299/12, § 62, 15 September 2016, and the case-law cited therein; see also Haddad v. Spain , no. 16572/17, §§ 55 and 56 , 18 June 2019, with further references)?

Has the decision-making process afforded due respect to the applicants ’ interests safeguarded by Article 8 (see Ageyevy , cited above, §§ 128 and 129).

Has there been a violation of the applicants ’ right to respect for their family life, contrary to Article 8 of the Convention?

2. Have the applicants had a fair hearing of their case, as provided in Article 6 § 1 of the Convention, concerning the matters regarding revocation of adoption?