Communicated on 23 May 2017

FOURTH SECTION

Application no 30702/16 AgnÄ— BENDINSKIENÄ– against Lithuania lodged on 11 May 2016

STATEMENT OF FACTS

The applicant, Ms AgnÄ— BendinskienÄ—, is a Lithuanian national who was born in 1978 and lives in Vilnius. She is repres ented before the Court by Ms R. Agrba, 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 April 2008 the parents of E., who was 3 months old at that time, died in a car accident. Immediately afterwards, on 4 April 2008, E. was placed with A. Š. and on 11 April 2008 – with her grandparents, who on an unspecified date gave her to their relative L. ’ s family.

In April 2008, the applicant, whose husband was the cousin of E. ’ s mother, applied to the Department of Social Security and Protection of Childrens ’ Rights of the Birštonas Municipality Administration (hereinafter “the department”) to become E. ’ s guardian and in May 2008 she was thus appointed E. ’ s temporary guardian. However, L. refused to hand over E. to the applicant.

The applicant then lodged a claim with the domestic court, asking it to apply a temporary protective measure and to oblige L. to hand over E. to the employees of the department. On 30 May 2008 the Prienai District Court refused the applicant ’ s request. The court held that E. was placed with different people several times and it was against her best interests to change her place of residence again; the court also held that L. took proper care of E.

The applicant lodged a separate complaint and on 26 August 2008 the Kaunas Regional Court decided to apply a temporary protective measure. It held that E. was placed with L. without any legal ground and that the actions of L. showed that she might avoid handing over E. to the applicant. L. was obliged to hand over E. to the employees of the department. After that decision, E. was temporarily placed with her grandparents.

The applicant then lodged a complaint, asking that a temporary protective measure be applied to oblige E. ’ s grandparents and L. to hand over E. to the applicant. On 6 January 2009 the Prienai District Court refused the applicant ’ s claim. It held that there were no indications that E. was not with her grandparents or that they did not take care of her.

The applicant lodged a separate complaint and on 9 April 2009 the Kaunas Regional Court decided to oblige E. ’ s grandparents and L. to hand over E. to the applicant.

It appears that the applicant asked the bailiff to execute the decision of the Kaunas Regional Court of 9 April 2009, however, it was not executed because neither E. ’ s grandparents, nor L. were found at their home.

By the decision of the Prienai District Court of 2 July 2009, the applicant was appointed as E. ’ s permanent guardian. The court assessed the material conditions of both the applicant and L., the fact that L. was living in a house in a village without an indoor bathroom or toilet, that the applicant was twelve years younger than L., that the applicant was living in a city, where educational possibilities were better and that the applicant had a son who was only one year older than E. and could be a brother to her. The court also noted that L. ’ s husband had been punished administratively on several occasions and that this showed a negative side to his character. L. also started court proceedings for divorce in 2005, claiming that her husband was aggressive and had beaten her and her children. As a result the court held that E. should not be left in an unsafe environment and decided to appoint the applicant as her permanent guardian.

E. ’ s grandparents and L. lodged separate complaints whi ch were dismissed on 9 December 2009 by the Kaunas Regional Court.

E. ’ s grandparents and L. lodged an appea l on points of law. On 13 April 2010 the Supreme Court held that the lower courts applied the provisions of the domestic law correctly and upheld their decisions.

It appears that L. refused to execute the decision to give E. to the applicant and that the applicant and the bailiff were not let into L. ’ s home to take E. It also appears that L. and her husband were given a fine for refusing to execute the court ’ s decision.

On 13 May 2010 the Prienai District Court allowed the authorities to access E. ’ s grandparents ’ , L. ’ s or any third party ’ s home if that was where E. was residing, and to give E. to the applicant by force.

E. ’ s grandparents and L. appealed again st this decision and on 16 July 2010 the Kaunas Regional Court upheld the decision of the Prienai District Court of 13 May 2010. It appears that E. was never handed over to the applicant.

On 12 April 2011 the Vilnius City 2 nd District Court allowed the applicant to adopt E. and to give her the applicant ’ s family name. The court held that the applicant was appointed as E. ’ s temporary guardian in 2008, however, E. was never handed over to her and was unlawfully living with L. ’ s family. The court also found it established that L. ’ s behaviour was an abuse of law and her personal characteristics could not ensure that E. would be raised as a responsible person. The court further held that the applicant ’ s family was included in the registry of citizens wishing to adopt a child since 2010 and their characteristics and material conditions were better that L. ’ s.

E. ’ s grandparents and L. appealed against this decision, and on 14 February 2012 the Vilnius Regional Court upheld the decision of the Vilnius City 2 nd District Court of 12 April 2011.

On 5 July 2012 the Supreme Court returned the case for fresh examination at the appeal. It held that the appellate court did not ensure that the decision to allow the applicant to adopt E. was in the best interest of the child. The court also held that the appellate court could have adopted a decision to place E. at the applicant ’ s home for a probationary period.

On 5 February 2014 the Vilnius Regional Court held that there were no obstacles for the applicant to adopt E. It also held that in order to eliminate doubts as to whether E. would adapt in the applicant ’ s family, it was appropriate to place E. with the applicant for an initial twelve months.

L. lodged an appeal on points of law and on 24 February 2014 the Supreme Court decided to suspend the execution of the decision of Vilnius Regional Court to place E. with the applicant ’ s family for twelve months until the case was examined before the cassation court.

On 15 October 2014 the Supreme Court held that the Vilnius Regional Court failed to establish which decision at the given time was in the child ’ s best interest. It also held that the appellate court should have paid attention to the fact that E. ’ s transfer to the applicant ’ s family, with which E. had no relationship, was against her best interest. The court further held that factual family ties were established between E. and L. and it could only decide to allow the applicant to adopt the girl if it was determined that L. ’ s family was unsuitable for E. As a result, the Supreme Court returned the case for fresh examination at the appeal.

On 12 March 2015 the Vilnius Regional Court allowed L. to adopt E. and gave the girl L. ’ s family name. The court established that in view of the fact that E. had been living with L. since 2008 and that according to the expert her transfer to the applicant ’ s family would likely have a negative impact on her, it was advisable to leave E. with L. ’ s family. E. also agreed that L. and her husband would become her adoptive parents.

The applicant and her husband lodged an appeal on points of law. O n 11 November 2015 the Supreme Court upheld the decision of the Vilnius Regional Court of 12 March 2015. The court found that in the present situation the most important question was, which family ties were stronger and corresponded better to the interests of the child. The court observed that the proceedings for E. ’ s adoption and custody took more than seven years and were harmful to her, the court also criticized the absence of cooperation between the national authorities. The court further observed that E. named L. and her husband as her parents and expressed her wish to be raised by them. Finally, the court held that although the absence of family ties between the applicant ’ s family and E. could not have been held against them, the interest of the child to grow in a stable environment prevailed in this exceptional case.

B. Relevant domestic law

Article 3.3 § 1 of the Civil Code provides that in the Republic of Lithuania the legal regulation of family relations shall be based on the principles of monogamy, voluntary marriage, equality of spouses, the priority of protecting and safeguarding the rights and interests of children, raising of children in the family, the comprehensive protection of motherhood and on the general principles for the legal regulation of civil relations.

Article 3.222 § 1 of the Civil Code provides that the court may decide to place the child with the guardians for six to twelve months prior to the adoption. In such case, the adoption proceedings are suspended. Article 3.222 § 2 provides that the probation period may be designated having regard to the psychological readiness of the adoptive parents and the child, the duration of the relationship between the adoptive parents and the child and other circumstances that may pose some doubts, whether the child would adapt in the family of the adoptive parents.

Article 3.249 of the Civil Code provides that the establishment of child custody shall be governed by the following principles: 1) first consideration must be given to the interests of the child; 2) priority in becoming the child ’ s guardians must be accorded to its close relatives, provided this is in the child ’ s best interests; 3) the child ’ s custody in a family. When child custody is established or ended, or a guardian is appointed to a child capable of expressing its views, the child shall be provided an opportunity to be heard and to influence the decision making.

Article 3.253 § 1 of the Civil Code provides that temporary custody is a temporary care and representation of interests of a child who is left without parents.

Article 3.255 of the Civil Code provides that temporary custody end when the child is adopted.

Article 3.257 of the Civil Code provides that a child shall be put under permanent custody when both parents or the single parent of the child are dead.

Article 3.268 of the Civil Code provides that a child ’ s guardian shall be selected by taking into consideration his or her personal qualities, state of health, abilities to function as a guardian, relations with the child deprived of parental care, and the interests of the child.

Article 282 § 1 of the Code of Civil Procedure provides that in the case of urgent execution, the court ’ s decisions (or their parts thereof) are started to execute before those decisions became final. If such decisions are appealed against, this does not suspend their execution.

Until 11 June 2011, Article 764 § 1 of the Code of Civil Procedure provided that in implementing the court decision concerning the transfer of a child, the bailiff must carry out his or her duties in the presence of the claimant and a representative of the children ’ s rights protection service. Article 764 § 2 provided that when enforcing the decisions mentioned herein, protection of the child ’ s rights must be guaranteed.

Since 11 June 2011, Article 764 § 1 of the Code of Civil Procedure provides that if the debtor does not within the time limit set by the court or the bailiff comply with a court order concerning the transfer of a child, the bailiff, having assessed the recommendations of the children ’ s rights protection service, the police and the psychologist, shall take a decision regarding the way the court order should be enforced. A copy of the bailiff ’ s decision shall be sent to all parties of the proceedings and other relevant persons. Article 764 § 2 provides that in implementing the court decision concerning the transfer of a child, the bailiff must carry out its duties in the presence of the claimant and a representative of the children ’ s rights protection service. To guarantee the protection of the child ’ s rights, a psychologist may be invited, at the request of any party to the civil proceedings or the children ’ s rights protection service or by a decision of the bailiff. Article 764 § 3 provides that if the debtor does not comply with the bailiff ’ s order for the transfer of the child, the bailiff has the right to ask the court for permission to forcibly take the child. Article 764 § 4 provides that when forcibly transferring a child, the police must remove obstacles for the enforcement of the decision for transfer, and the representatives of the children ’ s rights protection service shall take the child and hand him or her to the applicant. Article 764 § 5 provides that if a court rejects the bailiff ’ s request for permission to forcibly take the child, the ruling must indicate how the child ’ s transfer will proceed from that point forward. Article 764 § 6 provides that when enforcing the decisions mentioned herein, protection of the child ’ s rights must be guaranteed.

Articles 2 and 3 of the Law on Bailiffs state that a bailiff is someone authorised and empowered by the State to carry out the enforcement of writs of execution, make findings of fact, or carry out any other tasks provided for by law.

Article 4 of the Law on the Fundamentals of Protection of Children ’ s Rights ( Vaiko teisių apsaugos pagrindų įstatymas ) provides that parents, other legal representatives of a child, State, municipal government and public institutions and other natural and legal persons must abide by the principle that the legal interests of the child must always and everywhere be given priority consideration.

Article 11 of the Law on the Fundamentals of Protection of Children ’ s Rights provides that the right of the child to living conditions is vital for his physical, intellectual, spiritual and moral development and shall be ensured by parents, other legal representatives of the child and municipal institutions.

COMPLAINTS

The applicant complains that the Lithuanian courts breached her rights under Article 8 of the Convention.

She also argues under Article 6 § 1 that even though the temporary protective measures to place E. with the applicant had been ordered, these decisions were not executed. As a result, the girl developed strong ties with L. ’ s family and the applicant was thus prevented from living with E. and taking care of her.

QUESTIONS to the parties

1. Has there been a violation of Article 6 § 1 of the Convention on the account that the decisions of the domestic courts to place E. with the applicant were not executed?

2. Is Article 8 applicable in the present case? More specifically, h as there been an interference with the applicant ’ s right to respect for her family and/or private life, within the meaning of Article 8 § 1 of the Convention (see K. and T. v. Finland [GC], no. 25702/94, § 150, ECHR 2001 ‑ VII; Nazarenko v. Russia , no. 39438/13, § 56, ECHR 2015 (extracts); Chepelev v. Russia , no. 58077/00, § 29, 26 July 2007; and Paradiso and Campanelli v. Italy [GC], no. 25358/12, §§ 140-141 and 159-160, 24 January 2017) ?

3. If so, has there been a violation of Article 8 of the Convention on account of the fact that in the wake of civil proceedings concerning E. ’ s custody, it was decided that her place of residence was to be with L. ’ s family and not with the applicant (see Z.J. v. Lithuania , no. 60092/12, §§ 96 ‑ 99, 29 April 2014, and the case-law cited therein)? Did the courts reach a fair balance of the interests involved, also bearing in mind the applicant ’ s complaint that the court ’ s order for temporary measures was never executed?