FIRST SECTION

Application no. 55848/12 X and Others against Croatia lodged on 20 August 2012

STATEMENT OF FACTS

The applicants (a mother and her two children), Ms X (“the first applicant”), Ms Y (“the second applicant”) and Mr Z (“the third applicant”) are Croatian nationals who were born in 1974, 2000 and 2002, respectively, and live in Croatia. They are represented before the Court by Ms I. Bojić, an advocate practising in Zagreb.

A. The circumstances of the case

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

On 10 April 1999 the first applicant married Mr S.

In 2000 the first applicant gave birth to the second applicant, and in 2002 to the third applicant.

The first applicant and S. separated in November 2004.

1. Civil proceedings for divorce and child custody

(a) Principal proceedings

On 11 January 2005 the first applicant brought a civil action against S. in the relevant municipal court, seeking divorce and sole custody of the second and third applicants.

By a judgment of 25 March 2005 the Municipal Court: (a) granted the divorce between the first applicant and S.; (b) awarded the first applicant sole custody of the second and third applicants; (c) ordered S. to make regular maintenance payments for the second and third applicants; and (d) granted S. access (contact) rights.

It would appear that that judgment, except for the decision on divorce, was later quashed on appeal and the case remitted to the first-instance court.

In the resumed proceedings, the Municipal Court decided to obtain an opinion from a court expert in psychology and a court expert in psychiatry.

According to the opinion, dated September 2006, the first applicant was mentally unstable and had demonstrated signs of a personality disorder, whereas her former husband, S., had shown no such signs and was sufficiently emotionally stable to take care of the children. In particular, the experts established that the first applicant lacked self-criticism and was unable to recognise and respond to the emotional needs of her children. The experts therefore recommended that custody of the second and third applicants be awarded to their father. Having regard to the importance of the role of a mother in the development of a child and the fact that both children were very emotionally attached to her, the experts also suggested granting the first applicant extensive access rights, provided that she committed herself to psychiatric treatment.

In reply, the first applicant submitted an opinion by the psychiatrist who had been treating her since June 2005. The opinion, dated 29 November 2006, stated that the first applicant had been systematically abused by her former husband and, although mentally fragile, was not suffering from any mental illness, let alone a personality disorder.

The local social welfare centre, apparently acting partly upon the opinion and recommendations of the court experts and partly of their own motion, instructed the first applicant to commence psychiatric treatment and to take the second and third applicants for psychotherapy. The centre also imposed various supervision measures in order to oversee the exercise of parental authority by the first applicant and her former husband, S.

On 10 January 2010 the Polyclinic for the Protection of Children – the institution in which the second and third applicants had been psychiatrically treated – informed the local social welfare centre of their suspicion that the children’s health was being neglected and that they were being emotionally abused by the first applicant.

According to a fresh expert opinion obtained by the Municipal Court in November 2010 from another two court experts (a psychologist and a psychiatrist), both the second and the third applicant were very traumatised as a result of their parents’ – and especially their mother’s – behaviour, and were in urgent need of psychotherapy. The experts also established that, although both parents were responsible for that situation, the first applicant, whose behaviour they qualified as “emotional abuse”, was more responsible for it. The inefficiency of the authorities had also contributed to the situation by making it possible for the mother to manipulate the children. The experts further found that both parents had limited parental competence, but that the competence of the first applicant was more limited. The experts initially could not recommend to which parent custody should be awarded, because awarding the children to their father would worsen their mental state, whereas keeping them in the custody of their mother would intensify their resistance to the father and her influence over them. Thus, they first suggested that both parents underwent therapy in order to try to improve their own relationship and their relationship with their children, and later proposed awarding custody of the children to their mother for a period of six months and granting the father extensive access rights.

On that basis, on 27 December 2010 the court ordered a provisional measure whereby it (a) temporarily awarded custody of the children to the first applicant, and (b) granted S. access rights, allowing him to have contact with the second and third applicants three times a week for two hours, every second weekend and half of the school holidays.

It would appear that, for the following six months, the father was unable to exercise his access rights because each time he went to pick up the children, they refused to go with him, which behaviour the first applicant allegedly encouraged.

The last expert opinion obtained by the court in September 2011, which was prepared by the same psychologist and psychiatrist who had prepared the expert opinion of November 2010, recommended placing the second and third applicants in the public care. The experts suggested that the children be removed from their mother because she was harming their emotional development. Even though their father had better parental competence, for the time being, he could not take over the custody from the mother because the children, under her influence, had a very negative attitude towards him, so any use of force would have a negative impact. The experts therefore recommended placing the children in a foster family or foster home, attending psychotherapy in a designated institution, and granting each parent access rights once a week under supervision. It was proposed that those measures last for one year.

On 21 December 2011 the Municipal Court adopted a judgment (a) depriving the first applicant and S. of custody of the second and third applicants for a period of one year, and awarding custody to a children’s home; (b) ordering the first applicant and S. to make regular maintenance payments for the second and third applicants; and (c) granting S.K and the first applicant access (contact) rights, to be exercised in the premises of the children’s home in the presence of an employee of that institution by S. every Saturday from 10 to 12 a.m., and by the first applicant every Sunday from 3 to 5 p.m. The court also decided that its judgment would be immediately enforceable and, accordingly, ordered the first applicant to surrender custody of the second and third applicants to the children’s home immediately following service of the judgment.

In so deciding, the court, apart from relying on the above-mentioned expert opinions, also took into account the fact that the first applicant had refused to act upon the recommendation of the court experts and commit herself to psychiatric treatment, that she had taken the children for such treatment at the designated clinic only once, and that she had been obstructing the supervision measures imposed by the social welfare centre by refusing to cooperate with the social worker assigned to her case.

In particular, the court found that the mother’s refusal to commit herself to psychiatric treatment (which was a precondition to the successful psychotherapy of her children), her and S.’s fixation on their mutual problems, and their lack of communication and unwillingness to adapt and change were making them insensitive to the emotional needs of their children. That was harmful for the psychophysical development of their children, who had been traumatised and manipulated by the attitude and behaviour of their parents. The parents had thus significantly neglected their duty to raise and educate their children, as they had not taken sufficient care of their health within the meaning of section 111(1) and (2) of the Family Act.

The court therefore concluded that the first applicant and her former husband could not properly take care of their children and that, therefore, temporarily depriving them both of custody was warranted.

The first applicant appealed against the court’s decision, arguing that (a) she had been undergoing psychiatric treatment, albeit in a different institution from the one recommended by the court experts; (b) the reason she had refused to undergo therapy together with her husband, as recommended by the court experts, was because he had been convicted of domestic violence against her; and (c) she had taken her children for psychotherapy but in a different institution from the one recommended by the court experts.

On 21 March 2012 the relevant County Court dismissed the first applicant’s appeal and upheld the first-instance decision.

The applicant then lodged a constitutional complaint against the decisions of the ordinary courts, asking at the same time that enforcement of the first-instance decision be postponed.

On 13 June 2012 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the first applicant’s constitutional complaint.

On 17 December 2012, after the expiry of the period of one year fixed in the judgment of 21 December 2011, the Municipal Court adopted a judgment containing identical custody and access rights to those in its judgment of 21 December 2011. The court found that the fact that its judgment of 21 December 2011 had remained unenforced suggested that the circumstances that had warranted the imposition of the measures ordered therein still existed. The court again decided that the judgment was immediately enforceable.

The first applicant appealed.

It would appear that the proceedings are currently pending before the second-instance court.

(b) Enforcement proceedings

Meanwhile, as the first applicant refused to surrender the second and third applicants to the public care, on 10 February 2012 the local social welfare centre applied to the Municipal Court for enforcement of the judgment of 21 December 2011.

On 14 February 2012 the Municipal Court issued a writ of execution ( rješenje o ovrsi ) ordering the first applicant to surrender the second and third applicants to the children’s home within eight days of the service of the writ, or face a fine of HRK 5,000.

On 11 June 2012 the Municipal Court dismissed requests submitted by the first applicant on 28 February and 19 April 2012 for postponement of enforcement.

On 18 July 2012 the Municipal Court fined the first applicant HRK 5,000 for disobeying the court order to surrender the second and third applicants, and ordered her to do so within eight days of the service of that decision, or face an additional fine of HRK 6,000.

On 16 November 2012 the Municipal Court dismissed a request submitted by the first applicant on 5 November 2012 for postponement of enforcement.

Following a request by the local social welfare centre, on 18 November 2012 the Municipal Court issued a new writ of execution ordering an enforcement officer to take, with the assistance of a police officer, the second and third applicants from the first applicant or a third person and place them in the care of the children’s home.

It would appear that the above judgment of 21 December 2011 was not enforced before the expiry of the one-year period specified therein for placement of the children in the public care.

2. Criminal and minor offence proceedings against the first applicant’s former husband

Meanwhile, on 18 January 2005 the relevant court for minor offences found the first applicant’s former husband, S., guilty of a minor offence of domestic violence committed against the first applicant in 2004. It sentenced him to thirty days’ imprisonment, but imposed a suspended sentence with a probation period of three years.

On 22 August 2006 the relevant State Attorney’s office indicted S. on three counts of the criminal offence of domestic violence, defined in Article 215a of the Criminal Code, committed against the first applicant in 2004. On 29 February 2008 the Municipal Court found S. guilty as charged, sentenced him to ten months’ imprisonment, but imposed a suspended sentence with a probation period of one year. On 2 February 2009 the County Court dismissed an appeal lodged by S. and upheld the first-instance judgment, which thereby became final.

3. Criminal proceedings against the first applicant

On 26 August 2011 the relevant State Attorney’s office indicted the first applicant before the relevant municipal court for obstructing the execution of measures ordered to protect a child or a minor, a criminal offence defined in Article 215 of the Criminal Code.

It would appear that the criminal proceedings against the applicant are still pending before the first-instance court.

4. Proceedings before the Gender Equality Ombudsman

Following a petition filed by the first applicant, on 8 May 2012 the Gender Equality Ombudsman ( Pravobraniteljica za ravnopravnost spolova ) advised the local social welfare centre that in instructing the first applicant to undergo various treatment and expert assessments, it had failed to take into account the fact that she was a victim of domestic violence. In particular, the Ombudsman noted that, by insisting that the first applicant attend therapy together with her former husband, S., who had been convicted of domestic violence against her, the Centre had treated the victim and the perpetrator equally. That constituted secondary victimisation and amounted to discrimination against the first applicant as a victim of domestic violence. The Ombudsman therefore suggested that the centre reformulate its recommendation to the court in the above-mentioned civil proceedings on custody and access rights, basing it on a fresh expert opinion from a different expert and bearing in mind the fact that the first applicant was a victim of domestic violence.

B. Relevant domestic law

The Family Act

The relevant provisions of the Family Act ( Obiteljski zakon , Official Gazette nos. 163/03, 17/04, 136/04, 107/07, 57/11, 61/11) read as follows:

Section 111(1) and (2)

“(1) The court shall, in non-contentious proceedings, deprive a parent of the right to live with and to raise his or her child [i.e. the right to custody] and shall entrust the child to another individual, an institution or another legal entity providing social services, if [that parent] significantly neglects [the duty] to raise and educate [his or her child], or if there is a risk to the proper raising of a child.

(2) A parent is considered to have significantly neglected [the duty] to raise and educate [his or her child] if, for example, he or she does not take sufficient care of the child’s nutrition, hygiene, clothing, health, or regular school attendance, or does not protect the child from bad company, prevent him or her from going out at night and breaking the child curfew [prohibited night-time absences], or from vagrancy, begging or stealing.”

COMPLAINTS

1. The applicants complain under Article 8 of the Convention that the decision of the domestic courts to (a) temporarily deprive the first applicant of the right of custody; (b) place the second and third applicants in the public care; and (c) fine the first applicant for refusing to surrender the second and third applicants, had violated the applicants’ right to respect for their private and family life.

2. The first applicant also complains, under Article 6 § 1 of the Convention, about the way in which the domestic courts assessed the evidence in the above-mentioned civil proceedings.

3. Lastly, the first applicant complains under Article 14 of the Convention, taken in conjunction with Article 6 § 1 and Article 8 thereof, that as a victim of domestic violence, she was discriminated against by the fact that the domestic authorities treated her in the same way as her former husband, S., who had been convicted of domestic violence against her.

QUESTIONS TO THE PARTIES

1. Did the judgments of the Municipal Court of 21 December 2011 and 17 December 2012 amount to interferences with the applicants’ right to respect for their family life, within the meaning of Article 8 § 1 of the Convention? In particular, can the applicants claim to be victims of a violation of their right to respect for their family life as regards the judgment of 21 December 2011 given that, on the one hand, the judgment in question was never enforced, and, on the other hand, the first applicant was fined and criminal proceedings were instituted against her for refusing to comply with that judgment?

2. If the judgments of the Municipal Court of 21 December 2011 and 17 December 2012 constituted interferences with the applicants’ right to respect for their family life, were the orders to place the second and the third applicant into public care for the period of one year justified in terms of Article 8 § 2?

3. If so, were the decisions to grant the first applicant access rights (only) once a week for two hours under supervision justified in terms of Article 8 § 2?