FIFTH SECTION

Application no. 43570/10 Draggan MARINKOVIC against Sweden lodged on 23 June 2010

STATEMENT OF FACTS

The applicant, Mr Draggan Marinkovic , is a Swedish national, who was born in 1957 and lives in Bromma . He is represented before the Court by Mr M. Alonzo, a lawyer practising in Stockholm .

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

The applicant lived together with S from the early 1990s. They have two daughters together, K, born in 1994, and M, born in 1995. In the summer of 2000 the applicant and S separated. The children remained with the mother and the applicant had certain contact ( umgänge ) with them. Frequently, however, S created difficulties for the applicant to see the children. In 2001 the applicant instituted proceedings against S, requesting that he and S have joint custody of K and M and that the children live alternately with the respective parent. S, for her part, demanded sole custody and only limited contact rights for the applicant. At the request of the Stockholm District Court ( Stockholms tingsrätt ), the municipal social council investigated the situation, after which it issued a report recommending that the parents have joint custody and equal contact rights on weekends and school holidays. By a judgment of 11 April 2003 the court decided in accordance with the conclusions of the report. It also decided that the children should live with their mother. S appealed to the Svea Court of Appeal ( Svea hovrätt ) and refused any further contact between the applicant and the children. The applicant successfully petitioned the District Court for enforcement of his contact rights, after which he spent five weeks with the children, apparently in the summer of 2003. After that occasion, he was not able to exercise his contact rights due to the continued obstruction of S. Shortly before the custody case were to be examined by the Court of Appeal, S withdrew her appeal.

Instead, on 12 March 2004 S instituted new proceedings before the District Court, demanding sole custody for herself and limited contact with the children for the applicant. The court held a preparatory hearing on 22 April 2004, at which the applicant and S reached an agreement on the meetings to take place during the following two months. The court confirmed the interim arrangement and requested the social council to arrange cooperation talks between the parents and to interview the children.

A further preparatory hearing was held on 18 June 2004, at which the social council ’ s report on the two children were available. It transpired at the hearing that the interim arrangement had not been successful, the applicant having been able to see his daughters on only a few occasions, and that there was no prospect for further agreements between the parents. However, S withdrew her claim for sole custody. The District Court charged the social council with the task of investigating the contact issue. By an interim decision of 23 June 2004, it further fixed the dates when the applicant should see his daughters, effectively every other weekend. The court had regard to the hesitation expressed by K and M, but stated that it appeared to be partly due to S ’ s negative attitude towards the applicant. Considering the importance of a reasonably normal contact between the children and their father, the court found that meetings should be fixed at a much higher rate than what had been suggested by the children and accepted by S. The court also expressed that, in the interest of K and M, it was of utmost importance that the parents put their conflict aside and endeavoured to make the children ’ s meetings with the other parent as positive as possible.

On 29 June 2004, on an appeal by S, the Court of Appeal upheld the District Court ’ s interim decision of 23 June 2004.

The social council ’ s report on the question of contact was finalised on 7 December 2004.

On 8 December 2004 the District Court held another preparatory hearing. The applicant now demanded sole custody of K and M. Failing that, he requested that the joint custody remain in place but that the children should live with him. Failing that, he invoked the right to regular contact with them in accordance with a specified schedule. S only agreed to a three-hour meeting every other weekend in the presence of a person appointed by the social services ( kontaktperson ), stating that this was in accordance with the children ’ s interest and wishes. It was noted by the court that the applicant had not had any contact with his children since June 2004, when he had seen them for two hours. On 7 October 2004 the County Administrative Court ( länsrätten ) in Stockholm had issued an enforcement judgment against S, ordering her to give the applicant access to the children on penalty of a fine ( vite ) of 30,000 Swedish kronor. However, S had paid the fine and no contact had materialised. At the close of the hearing, the District Court decided not to make any changes as regards custody and contacts, thus upholding its decision of 23 June 2004. It ordered the social council to make a complementary investigation on the issue of custody.

The social council reported back to the court on the custody issue on 4 February 2005.

A fourth preparatory hearing was held on 11 March 2005. Noting that no further meetings between the applicant and the children had taken place, the District Court decided that he should see them once every weekend for seven hours in the presence of a person appointed by the social services. This arrangement should be in place until 11 May 2005, after which date meetings should occur in accordance with the decision of 23 June 2004.

Subsequently, S demanded, on an interim basis, that she be given sole custody of K and M and that the applicant not have any right of contact with them. The applicant opposed this and requested, for his part, that the case be adjourned pending the outcome of meetings with therapists which the social council had arranged for the persons involved since the beginning of May 2005. By a decision of 27 July 2005 the District Court rejected the claims put forward by S, finding that they were not in the best interest of the children.

Following extensive submissions by the parties, the District Court held a fifth preparatory hearing on 8 June 2006. It transpired that the social council had arranged for an investigative stay for K and M at a home, two weeks with S and the following two weeks with the applicant. Several interruptions had occurred, however, and the children had not wanted to meet their father.

By a decision of 15 June 2006 the District Court awarded temporary sole custody of the children to S. It noted, firstly, that it had to decide in accordance with what was perceived to be in the best interest of the children, and that sole custody should only be chosen in exceptional situations. Having concluded that none of the parents were unsuitable as carer, the court went on to state that the very deep conflict between the parents and their inability to cooperate had undoubtedly affected the children in a negative direction in that they had clearly expressed their unwillingness to have any contact with their father. Irrespective of whether this attitude had come about as a consequence of a negative influence of S or for any other reason, the court had to take it into account as K and M were now 12 and 11 years of age. The court also had regard to the fact that the applicant had not had any proper meeting with the children for three years.

On 7 December 2006 the District Court held a further preparatory hearing in the case. Both the applicant and S stated that they demanded sole custody of the children. S also presented a claim for alimony for the children. The applicant asserted that S had inflicted on the children a Parental Alienation Syndrome (PAS) and asked the court to order the social council to produce certain hitherto confidential documents, notably memoranda drawn up by the investigation home on the children ’ s relation with their mother, psychologists ’ statements from June 2006 about all four persons concerned and a note of 15 June 2006 from the journal of the social council. He also invoked as evidence several recorded telephone conversations. At the close of the hearing, the court noted that the applicant and S had agreed to have meetings together with their children at a café, once in December 2006 and once in January 2007.

By a decision of 7 December 2006 the District Court ordered the social council to produce the memoranda from the investigation home and the psychologists ’ statements concerning the children. It refused to admit as evidence the statements relating to the applicant and S, the journal note and the telephone conversations, finding that these had no bearing on the issue of custody of the children. On 26 February 2007, after the applicant had reiterated his requests concerning evidence, the court upheld its decision.

The main hearing in the case was scheduled for 26-28 September 2007. It was cancelled, however, as the County Administrative Court was to hold a hearing on 23 October 2007 on an application lodged by the social council that the children should be taken into public care. Instead, the court, on 2 October 2007, ordered the council to submit a further report on the issue of custody, to be made by an external investigator who should identify the position of the children and propose a decision to the court.

It appears that the social council ’ s application for the taking into public care of K and M was rejected by the courts.

The District Court ’ s main hearing was eventually held on 26-27 March 2008. The court heard several witnesses, eight proposed by the applicant and two proposed by S, and had at its disposal the reports on custody and contact drawn up by the social council, incluing the latest one dated 25 January 2008.

By a judgment of 21 April 2008 the District Court awarded sole custody of the children to S. It noted that joint custody was excluded due to the parents ’ lack of any ability to cooperate on matters concerning the children. It further concluded that K and M, in order to find some stability in their lives, had had to take sides with one of the parents, and that this was at least part of the explanation why they did not want to see their father. Finding it important that this stability was not weakened, the court considered that it was in the children ’ s best interests to be in the care of the parent with whom they had been living for a long time.

The applicant appealed to the Court of Appeal, which held an oral hearing and, on 24 September 2009, upheld the District Court ’ s judgment. While the appellate court expressed that it could not be excluded that S ’ s attitude had contributed to the K ’ s and M ’ s dissociation from their father, it nevertheless stated that the children now appeared to be living in very positive circumstances. If further had regard to their clear wish not to meet their father.

On 28 December 2009 the Supreme Court ( Högsta domstolen ) refused leave to appeal.

COMPLAINT

The applicant complains about the length of the proceedings in the case, stating that the proceedings starting in 2004 was not brought to a judgment until four years later. He points out that these proceedings followed on from the initial case on custody and contact which had already lasted three years. He also claims that the courts and authorities did not take appropriate action to secure K ’ s and M ’ s contact with both parents. Furthermore, the courts did not appoint an expert in family or child psychology to investigate the situation and failed to take into account the extensive evidence showing the mother ’ s negative influence on the children and her conduct of obstructing meetings between him and K and M. The applicant contends that the delayed proceedings and the courts ’ and authorities ’ failure to act led to the break in contact between him and his children. He invokes Articles 6 and 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s right to respect for his family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference necessary in terms of Article 8 § 2?

2. Did the applicant have a fair hearing, in accordance with Article 6 § 1 of the Convention?

3. Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?