EHRM, 25-11-2014, nr. 10140/13

On 25 October 2011 the first and second applicants submitted to the Vinkovci Social Welfare Centre (Centar za socijalnu srkb Vinkovci, hereinafter ‘the local social welfare centre’) that the third and fourth applicants had been abandoned by both parents. In particular, the first applicant stated that she and the second applicant had taken care of the third and fourth applicants since their birth and that their father I.K. had never taken care of his children. Rather, he had been keeping child benefits for himself and had not contributed to their maintenance. She further alleged that I.K. was prone to alcohol abuse and had often beaten the children with a belt and forced them to sleep on the floor, and that he had eventually abandoned them on 24 August 2011. Furthermore, on 24 September 2011 he had attempted suicide whereupon he had been kept for ten days in the psychiatric ward of the local hospital.

On the same day the centre instituted administrative proceedings for the protection of children's rights with a view to adopting appropriate child protection measures.

On 31 October 2011 the centre (a) asked the psychiatric ward of the Vinkovci General Hospital to report on the health of I.K., as it had had been brought to its attention that he had been treated there, (b) requested a report from the police authorities on their interventions in the family, and (c) asked the local clinic to report on the general state of health of the third and fourth applicants.

On 7 November 2011 the police authorities submitted their report on the events of 11 October 2011 (see paragraph 8 above) to the centre.

On 30 November 2011 an employee of the centre carried out an onsite inspection of the applicants' home.

On 12 December 2011 and 27 December 2011 respectively the centre carried out onsite inspections of K.F.'s and I.K.'s homes, and on 10 January 2012 interviewed K.F. and I.K. During his interview I.K. denied the first applicant's allegations (see paragraph 9 above) claiming that she did not allow him to visit his children. In particular, he denied having attempted suicide and explained that he had cut himself while breaking glass during an altercation with B.B. for which he had to be treated at the local hospital. The report eventually obtained from the Vinkovci General Hospital appears to support I.K.'s version of events (see paragraph 63 below).

On the basis of those onsite inspections and interviews, on 6 February 2012 the centre prepared a report, which it submitted to the Vinkovci Municipal Court in the proceedings concerning custody of the third and fourth applicants (see paragraphs 26–28 below), which were instituted in the meantime.

On 7 May 2012 the centre asked the police to investigate allegations of I.K.'s previous violent behaviour. On 2 October 2012 the police authorities, after having interviewed the first applicant, K.F., I.K. and his sister S.K., informed the centre that they had found no probable cause that I.K. had ever committed a criminal offence of domestic violence against the third or fourth applicants.

By a decision of 10 July 2012 the centre ordered the child protection measure of supervision of parental care of I.K. and K.F. for the period of one year. It prepared a programme of supervision and conferred the supervision to a certain Z.P., a nurse. As the third and fourth applicants were at the time still living with the first and second applicants, the measure consisted of monitoring contacts between the children and their parents.

On 19 February 2013 Z.P. asked to be relieved of her supervisory duties.

On 22 February 2013 the centre's social worker proposed that the supervision of K.F. and I.K. in the exercise of their parental care be continued with a new person in charge.

On 2 April 2013 the centre appointed a certain A.P., a social worker employed at the psychiatric ward of the Vinkovci General Hospital, to supervise the parental care carried out by K.F. and I.K.

On 28 June 2013 A.P. suggested that the child protection measure of supervision of parental care ordered by a decision of 10 July 2012 (see paragraph 17 above) be discontinued for its poor results and the first applicant's lack of co-operation. The measure expired on 10 July 2013.

By a decision of 6 February 2014 the centre ordered the child protection measure of supervision of I.K. and K.F. in the exercise of their parental care from 1 February 2014 to 31 January 2015. Since the third and fourth applicants were as of 30 December 2013 living with their father I.K. (see paragraph 79 below), the measure was carried out by occasional visits to their new home.

The centre's reports for February and March 2014 were positive as regards I.K. and the third and fourth applicants' development in his care, whereas it was noted that K.F. had not visited the children regularly and had not managed to interact with them.

On 10 October 2013 the Vukovar Municipal State Attorney's Office (Općinsko državno odvjetništvo u Vukovaru) indicted the first and second applicants before the Vukovar Municipal Court (Općinski sud u Vukovaru) for non-execution of a child protection measure (neprovođenje odluke za zaštitu dobrobiti djeteta), a criminal offence punishable under Article 173(1) of the 2013 Criminal Code (see paragraph 96 below).

The criminal proceedings against the first and second applicants are still pending.

On 15 January 2014 the third and fourth applicants' guardian ad litem instituted non-contentious proceedings before the Vinkovci Municipal Court on their behalf, asking the court to issue a restraining order prohibiting the first and second applicants from approaching them within 500 metres and from disturbing them with phone calls, letters, e-mails, or text messages. He argued that the first and second applicants had manipulated the third and fourth applicants and that the children's wish to live with their grandparents had been formed under pressure, and was not in the children's best interests. He referred to the criminal proceedings pending against the first and second applicants.

On 3 March 2014 and 5 March 2014 the local social welfare centre's social worker and psychologist endorsed the proposed measure. The first and second applicants contested their opinions, relying on the earlier expert opinions that had suggested that the children maintain regular contacts with them (see paragraph 62 above).

On 28 March 2014 the Vinkovci Municipal Court accepted the request by the guardian ad litem and issued a restraining order in respect of the first and second applicant. The relevant part of that decision reads as follows:

The case is currently pending before the Vukovar County Court following an appeal by the first and second applicants.

On 15 January 2014 the first and second applicants instituted non-contentious proceedings before the Vinkovci Municipal Court, seeking to be granted access rights as regards the third and fourth applicants one day per week, every second weekend of the month, thirty days during the summer holidays and seven days during the winter holidays, and on special occasions such as religious holidays and birthdays.

On 16 January 2014 the Vinkovci Municipal Court requested the opinion of the centre on the first and second applicants' request.

On 5 March 2014 the centre forwarded to the Vinkovci Municipal Court its report prepared in the context of the proceedings concerning the restraining order (see paragraph 86 above).

On 10 April 2014 the Vinkovci Municipal Court dismissed the first and second applicants' request. In so deciding it referred to its decision imposing a restraining order (see paragraph 87 above).

By a decision of 18 June 2014 the Vukovar County Court dismissed an appeal by the first and second applicants.

On 13 August 2014 the first and second applicants lodged a constitutional complaint alleging violations of their constitutional rights to a fair hearing and respect for their family life. The proceedings are currently pending before the Constitutional Court.

The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette no. 163/03 with subsequent amendments) read as follows:

Section 100

Section 103

Section 106

Section 107(1)

The relevant provision of the Criminal Code (Kazneni zakon, Official Gazette nos. 125/11 and 144/12), which entered into force on 1 January 2013, reads as follows:

CHAPTER EIGHTEEN (XVIII)

CRIMINAL OFFENCES AGAINST MARRIAGE, THE FAMILY AND CHILDREN

Non-execution of a child protection measure

Article 173

The Government argued that the first and second applicants had not been entitled to lodge the application on behalf of the third and fourth applicants as the only persons who could have done so were their biological parents, namely K.F. and I.K. The Government also argued that as minors the third and fourth applicant lacked the legal capacity to sign the power of attorney presented to the Court by their advocate.

The first and second applicants replied that they were merely protecting the third and fourth applicants, as their parents and the local social welfare centre had failed to do so.

While reiterating the need to avoid a restrictive or purely technical approach regarding the representation of children before it (see A.K. and L. v. Croatia, no. 37956/11, § 47, 8 January 2013), the Court notes that in the present case parental responsibility in relation to the third and fourth applicants have always rested with their parents who have never been deprived of it. It also notes that those applicants had never been under the guardianship of the first and second applicants nor otherwise formally entrusted to them. Moreover, as of 13 December 2013 the third and fourth applicants were in the domestic proceedings represented by a guardian ad litem (see paragraph 76 above). Lastly, given the findings of the domestic courts (see paragraphs 62 and 68 above), the first and second applicants are, at least arguably, in the conflict of interest with their grandchildren.

In these circumstances, the Court having regard to its case-law (see Moretti and Benedetti v. Italy, no. 16318/07, §§ 32–33, 27 April 2010) considers that the first and second applicants have no standing to lodge an application on behalf of the third and fourth applicants.

It follows that in so far as the present application concerns the third and fourth applicants it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 thereof and must be rejected pursuant to Article 35 § 4.

The Government argued, inter alia, that while under Article 8 of the Convention the applicants had the right to maintain the family ties with their grandchildren, that did not imply the right to be granted custody of the children, to have them adopted or to have their de facto exercise of parental care legally recognised (formalised) in another way. However, that was precisely what the applicants sought to achieve. In particular, in their application form they had stated that the object of their application was: ‘to have their right to have the children entrusted to them recognised.’ That being so, they were, in the Government's view, in fact seeking to obtain the right of custody of their grandchildren, a right which could not be derived from Article 8 of the Convention.

The applicants made no comment in that regard.

The Court first reiterates that there may be ‘family life’ within the meaning of Article 8 of the Convention between grandparents and grandchildren where there are sufficiently close family ties between them (see Lawlor v. the United Kingdom, no. 12763/87, Commission decision of 14 July 1988, Decisions and Reports (DR) 57, p. 216). While cohabitation is not a prerequisite, as close relationships created by frequent contact also suffice, relations between a child and its grandparents with whom it had lived for a time will normally be considered to fall within that category (see Bronda v. Italy, 9 June 1998, § 51, Reports of Judgments and Decisions 1998-IV).

That being so and given that in the instant case the applicants were living with their grandchildren from their birth until 30 December 2013 (see paragraphs 4 and 7 above), that is, some seven and eight years, the Court considers that the relations between them constituted ‘family life’ protected by Article 8 of the Convention.

The Court further reiterates that in normal circumstances the relationship between grandparents and grandchildren is different in nature and degree from the relationship between parent and child and thus by its very nature generally calls for a lesser degree of protection. Therefore, when a parent is denied access to a child taken into public care this would constitute in most cases an interference with the parent's right to respect for family life as protected by Article 8 of the Convention, but this would not necessarily be the case where grandparents are concerned. In the latter situation, there may be an interference with the grandparents' right to respect their family life only if the public authority reduces access below what is normal, that is, diminishes contacts by refusing to grandparents the reasonable access necessary to preserve a normal grandparent-grandchild relationship (see Price v. the United Kingdom, no. 12402/86, Commission decision of 9 March 1988, DR 55, p. 224; Lawlor, cited above; and G.H.B. v. the United Kingdom (dec.), no. 42455/98, 4 May 2000). That is so because respect for a family life in such situations implies an obligation for the State to act in a manner calculated to allow the ties between grandparents and their grandchildren to develop normally (see Marckx v. Belgium, 13 June 1979, § 45, Series A no. 31).

Thus, the right to respect for family life of grandparents in relation to their grandchildren primarily entails the right to maintain a normal grandparent-grandchild relationship through contacts between them.

However, the Court reiterates that contacts between grandparents and grandchildren normally take place with the agreement of the person who has parental responsibility which means that access of a grandparent to his or her grandchild is normally at the discretion of the child's parents (see Price, cited above; and Lawlor, cited above). In any event, the Court notes that the domestic proceedings that could result in an interruption or restrictions of contacts between the applicants and their grandchildren, in particular those concerning imposition of a restraining order (see paragraphs 85–88 above), and access rights of the applicants (see paragraphs 89–94 above), are still pending.

It follows that in so far as that their complaint under Article 8 of the Convention concerns those proceedings, it is inadmissible as premature and must be rejected pursuant to Article 35 § 4 of the Convention.

In addition, from the case-law of the Court it appears that in situations where their grandchildren are left without parental care, grandparents could under Article 8 of the Convention also be entitled to have their wish to have their grandchildren formally entrusted into their care, taken into account when decisions on that child's placement are made (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 222, ECHR 2000-VIII).

In the Court's view the circumstances of the present case could not give rise to this right of grandparents because it cannot be argued that the applicants' grandchildren were abandoned by their father — who was away for only a month and a half while leaving them in care of their grandparents (see paragraphs 6 and 8 above) — and thus left without parental care. Since, as correctly pointed by the Government (see paragraph 106 above), Article 8 of the Convention cannot be construed to confer any other custody-related right to grandparents, the Court considers that the decisions of the domestic courts in the various proceedings concerning custody (see paragraphs 24–41 above) as well as those adopted in the proceedings for handover of children (see paragraphs 42–50 above), including the ensuing enforcement proceedings (see paragraphs 51–82 above) do not amount to interferences with the applicants' right to respect for their family life.

It follows that to the extent that their complaint under Article 8 of the Convention concerns those proceedings, it is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

In view of these conclusions the Court does not find it necessary to address the Government's inadmissibility objections based on the alleged abuse of the right of application, the lack of victim status, or the failure to exhaust domestic remedies (see paragraph 105 above).