JOINT DISSENTING OPINION OF JUDGE S SPANO AND KJØLBRO

1. We voted against declaring the application admissible and finding a violation of Article 8 of the Convention. In our view, the application is inadmissible for failure to exhaust domestic remedies. Furthermore, even assuming that the application is admissible, there has, in our view, been no violation of the State ’ s positive obligations under Article 8.

Failure to exhaust domestic remedies

2. The core of the applicant ’ s complaint is the non-enforcement of the High Court of Justice ’ s (HCJ) judgment and order of 18 June 2010 granting him a right to contact with his son. The enforcement proceedings in Lithuania came to an end on 27 April 2011, when the district court dismissed the bailiff ’ s request for enforcement of the HCJ ’ s judgment and order.

3. The applicant did not lodge an appeal against the district court ’ s decision of 27 April 2011 (see paragraph 40 of the judgment). Lodging an appeal against a decision of a district court is an ordinary remedy that must be exhausted under Article 35 of the Convention. The question therefore arises if there are special circumstances which absolve the applicant, who was represented by a State-appointed lawyer, from the obligation to make use of an available and effective remedy (see, inter alia , Sejdovic v. Italy [GC], no. 56581/00, § 45 , ECHR 2006 ‑ II ).

4. According to the information available, the applicant instructed his State-appointed lawyer to lodge an appeal against the district court ’ s decision (see paragraph 41). The Court is unaware why no appeal was lodged, but in general an applicant must be identified with his lawyer. It follows that a failure by an applicant ’ s lawyer to lodge an appeal will be attributed to the applicant in assessing whether domestic remedies have been exhausted. States are in general not responsible for the acts and omissions of lawyers, including State-appointed lawyers, who are independent (see, inter alia , Czekalla v. Portugal , no. 38830/97, § 60, ECHR 2002 ‑ VIII; Sannino v. Italy , no. 30961/03, § 49, ECHR 2006 ‑ VI; and Bogumil v. Portugal , no. 35228/03, § 46 , 7 October 2008 ).

5. Furthermore, the applicant did not lodge an appeal against the district court ’ s decision of 1 March 2011 on interim measures, nor did he lodge an appeal against the district court ’ s judgment of 26 June 2012.

6. Thus, even assuming that the decision of 1 March 2011 and the judgment of 26 June 2012 are to be taken into account in assessing the applicant ’ s complaint, the applicant has failed to exhaust available and effective remedies, and there are no special circumstances absolving the applicant from the obligation to exhaust the domestic remedies at his disposal.

7. Therefore, the application is, in our view, inadmissible for failure to exhaust domestic remedies under Article 35 of the Convention.

The State ’ s positive obligations under Article 8 of the Convention

8. As mentioned above , the core of the applicant ’ s complaint is the non-enforcement of the High Court of Justice ’ s judgment and order of 18 June 2010 concerning contact with his son (see paragraphs 3, 75 and 83-91). The question is therefore whether the Lithuanian authorities fulfilled their positive obligations to secure respect for the applicant ’ s right to family life with his son in accordance with Article 8 of the Convention (see, inter alia , Fiala v. the Czech Republic , no. 26141/03, § 94 , 18 July 2006 ; Piazzi v. Italy , no. 36168/09 , § 52 , 2 November 2010 ; and Santos Nunes v. Portugal , no. 61173/08 , § 67 , 22 May 2012 ).

9. On 18 October 2010 the English central authority contacted the Lithuanian central authority regarding the non-enforcement of the HCJ judgment and order. On 25 October 2010 the Lithuanian central authority recognized that the HCJ judgment and order was directly enforceable in Lithuania and submitted it to a bailiff for execution. From this moment Lithuanian authorities had a positive obligation to act promptly and diligently to secure respect for the applicant ’ s right to family life and enforce the HJC judgment and order.

10. According to the information available, the bailiff received the necessary documents from the applicant in November 2010. On 20 December 2010 the bailiff established that the mother had not delivered the child for parental contact from 11 to 18 December 2010 as stipulated in the HCJ judgment and order, following which the bailiff instituted court proceedings against the mother on 27 December 2010. The next parental contact was due to take place from 19 to 28 March 2011, in compliance with the HCJ judgment and order.

11. However, on 27 April 2011 the district court dismissed the bailiff ’ s request for enforcement. The district court noted that an interim protective measure had been adopted on 1 March 2011, according to which the applicant was granted contact with his son but was prohibited from removing the child from Lithuanian territory.

12. As the child had been moved lawfully to Lithuania and had resided there for more than three months, Lithuania had jurisdiction to decide matters of contact. This follows from Article 9 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 and was also recognized by the HCJ in its judgment and order (see paragraphs 22, 64 and 74).

13. In compliance with Lithuanian legislation and in the best interests of the child, the district court had adopted the interim protective measure on contact, which in practice replaced the HCJ judgment and order concerning contact. Therefore, the Lithuanian authorities no longer had an obligation to enforce the HCJ judgment and order on contact.

14. Having regard to these facts, and in particular the short period of time from the institution of the enforcement proceedings to the interim decision on contact, which brought to an end the obligation to enforce the HCJ judgment and order, there is, in our view, an insufficient basis for finding a violation of the State ’ s positive obligation to secure respect for the applicant ’ s right to family life.

15. As regards the period since the final decision on enforcement of the HCJ judgment and order, we cannot but observe that the applicant has never made use of the extensive right to contact with his son, granted in the interim decision of 1 March 2011 and the subsequent judgment of 26 June 2012.

16. In our view, there has therefore been no violation of Article 8 of the Convention.